License Agreement

1. DEFINITIONS.

(a) “Software” means the computer programs and documentation listed and described in Schedule A attached to this Agreement.

(b) “Install” means placing the Software on a computer’s hard disk, CD-ROMor other secondary storage device.

(c) “Use” means (i) executing or loading the Software into computer RAM or other primary memory, and (ii) copying the Software for archival or emergency restart purposes.

2. LICENSE TERM.

This License is effective when executed by both parties and the license granted to the Software remains in force until Licensee stops using the Software or until Licensor terminates this License because of Licensee’s failure to comply with any of its terms and conditions.

3. TERMINATION.

Licensor shall have the right to immediately terminate this License if Licensee fails to perform any obligation required of Licensee under this License or if Licensee becomes bankrupt or insolvent.

4. RETURN OR DESTRUCTION OF SOFTWARE UPON TERMINATION.

Upon termination of this License, Licensee shall return to Licensor or destroy the original and all copies of the Software including partial copies and modifications. Licensor shall have a reasonable opportunity to conduct an inspection of Licensee’s place of business to assure compliance with this provision.

5. TITLE TO SOFTWARE.

Licensor retains title to and ownership of the Software and all enhancements, modifications and updates of the Software.

6. MODIFICATIONS AND ENHANCEMENTS.

Licensee will make no efforts to reverse engineer the Software, or make any modifications or enhancements without Licensor’s express written consent.

7. WARRANTY LIMITATIONS.

LICENSOR WARRANTS THAT THE SOFTWARE WILL FUNCTION IN SUBSTANTIAL ACCORDANCE WITH THE DESCRIPTION AND SPECIFICATIONS SET FORTH IN ATTACHED SCHEDULE A. THE WARRANTY GRANTED HEREIN IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

8. REMEDY LIMITATIONS.

Licensor’s entire liability and Licensor’s sole and exclusive remedy for breach of the foregoing warranty shall be Licensor’s option to either:

– return to Licensee the license fee for the period in which the Software did not perform according to this warranty, or

– repair the defects or replace the Software.

9. DAMAGE LIMITATIONS.

NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR INDIRECT, SPECIAL,

CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING LOSS OF PROFITS, AND

LICENSOR’S LIABILITY TO LICENSEE FOR ANY OTHER DAMAGES RELATING TO OR

ARISING OUT OF THIS AGREEMENT WHETHER IN CONTRACT, TORT, OR OTHERWISE WILL

BE LIMITED TO THE AMOUNT RECEIVED BY LICENSOR FROM LICENSEE AS COMPENSATION

FOR THE SOFTWARE DURING THE 0 MONTH PERIOD IMMEDIATELY PRIOR TO THE TIME

SUCH CLAIM AROSE.

10. CONFIDENTIALITY.

Licensee will treat the Software as a trade secret and proprietary

know-how belonging to Licensor that is being made available to Licensee in

confidence. Licensee agrees to treat the Software with at least the same

care as it treats its own confidential or proprietary information.

11. ARBITRATION.

The parties agree to submit any dispute under this License to binding

arbitration under the rules of the American Arbitration Association in the

following location: Cook County. Judgement upon the award rendered by the

arbitrator may be entered in any court with jurisdiction to do so.

12. ATTORNEY FEES.

If any legal action is necessary to enforce this License, the prevailing

party shall be entitled to reasonable attorney fees, costs and expenses in

addition to any other relief to which it may be entitled.

13. GENERAL PROVISIONS.

(a) Complete Agreement: This License Agreement together with all schedules

referred to in this Agreement, all of which are incorporated herein by

reference, constitutes the sole and entire Agreement between the parties.

This Agreement supersedes all prior understandings, agreements,

representations and documentation relating to the subject matter of this

Agreement.

(b) Modifications: Modifications and amendments to this Agreement,

including any exhibit, schedule or attachment hereto, shall be enforceable

only if in writing and signed by authorized representatives of both parties.

(c) Applicable law: This License will be governed by the laws of the State

of Illinois.

(d) Notices: All notices and other communications given in connection with

this License shall be in writing and shall be deemed given as follows:

– When delivered personally to the recipient’s address as appearing in the
introductory paragraph to this License;
– Three days after being deposited in the United States mail, postage
prepaid to the recipient’s address as appearing in the introductory
paragraph to this License; or
– When sent by fax or telex to the last fax or telex number of the
recipient known to the party giving notice. Notice is effective upon
receipt provided that a duplicate copy of the notice is promptly given by
first-class or certified mail or the recipient delivers a written
confirmation of receipt. Any party may change its address appearing in the
introductory paragraph to this License by given notice of the change in
accordance with this paragraph.
(e) No Agency: Nothing contained herein will be construed as creating any
agency, partnership, joint venture or other form of joint enterprise
between the parties.