DAFwidget License Agreement

1. License Grant and Restrictions.

(a) License. Subject to the terms and conditions set forth in this Agreement, MarketSmart grants to Company a worldwide, non-exclusive, non-sublicensable, non-transferable (except as specifically set forth in this Agreement), license to host, use, and display the DAFwidget on a website owned by Company for Company’s internal business purposes.

(b) License Restrictions. Company shall use the DAFwidget only for its own business purposes, and may not sublicense, loan, sell, rent, or lease the DAFwidget. Furthermore, except for the limited distribution to end users of Company’s website expressly permitted in Section 1(a), Company shall not distribute the DAFwidget to any third party. Company will not disassemble, reverse engineer, or take other action to attempt to derive the source code of the DAFwidget, except to the extent that applicable local law expressly permits such activity. Company will not remove any disclaimer, copyright, trademark, proprietary rights, or other notice included on or embedded in the DAFwidget, including any user-facing privacy statements and legal terms.

(c) Reservation of Rights. As between Company and MarketSmart, MarketSmart retains ownership of the DAFwidget and all intellectual property therein. All rights not expressly granted to Company are reserved by MarketSmart. Company has no rights to use, modify, distribute, copy, or reproduce the DAFwidget except as expressly set forth in this Agreement.

(d) Feedback. From time to time Company may provide suggestions, enhancement or modification requests, recommendations, or other feedback relating to the DAFwidget (collectively, “Suggestions”). MarketSmart owns all right, title and interest in any Suggestions, and Company hereby assigns and transfers to MarketSmart all its right, title and interest (including all intellectual property rights) in and to the Suggestions. Company agrees to provide MarketSmart any assistance MarketSmart reasonably requests to document, perfect, and maintain its rights in the Suggestions.

(e) Attribution. Company hereby grants to MarketSmart a royalty-free, non-exclusive license to use Company’s trademarks, service marks, and other proprietary indicia in a list on MarketSmart’s website, in its marketing materials, and in case studies or other industry reports prepared by MarketSmart during the Term (as defined in Section 2(a) below). MarketSmart will comply with Company’s reasonable written requests as to the usage, display, and presentation of such trademarks, service marks, or other proprietary indicia. Except as expressly provided in this Section 1(e) or otherwise in this Agreement, neither party will use the other party’s trade or service marks or other proprietary indicia without the other party’s prior written consent in each instance.

2. Term; Termination.

(a) Term. This Agreement will begin when Company first accesses or uses the DAFwidget and will continue until terminated as permitted herein (“Term”).

(b) Termination. MarketSmart may immediately terminate this Agreement upon written notice to Company (email sufficing): (i) if MarketSmart believes that Company has materially breached this Agreement; (ii) upon Company’s dissolution, liquidation, composition, financial reorganization or recapitalization with creditors, assignment for the benefit of creditors, or the appointment of a receiver, trustee, custodian, or similar agent for Company’s business or property, or (iii) for convenience. Company may terminate this Agreement upon written notice to MarketSmart (email sufficing) and Company’s de-installation of the DAFwidget from Company’s website. In the event that this Agreement is terminated for any reason, Company’s right and license to use the DAFwidget will automatically end upon such termination.

(c) Survival. The following sections will survive termination of this Agreement: 1(c), 1(d), 2(c), and 3 – 6.

3. Confidentiality.

For the purposes of this Agreement, “Confidential Information” means the terms of this Agreement, and any non-public information or other materials provided by MarketSmart to Company under or in connection with this Agreement. Confidential Information does not include any information that Company can reasonably demonstrate: (a) is or becomes part of the public domain, other than as a result of the actions of Company or its employees or contractors; (b) was already rightfully known to Company as of the time it is disclosed to or obtained by Company and without limitation on use or disclosure; (c) is subsequently learned from a third party not under a confidentiality obligation to MarketSmart; or (d) is independently developed by Company without reference to MarketSmart’s Confidential Information. Except with the prior written consent of MarketSmart, Company shall not: use MarketSmart’s Confidential Information except to exercise its rights or perform its obligations in this Agreement, or disclose MarketSmart’s Confidential Information other than: (i) to Company’s attorneys, accountants and financial representatives under a duty of confidentiality as may be reasonably necessary in order to receive their professional advice; (ii) to Company’s employees and contractors who have a need to know and are subject to confidentiality obligations equivalent to those in this Agreement; and (iii) in connection with any legal, governmental or administrative proceeding, provided that Company gives prior written notice of such disclosure to MarketSmart (if legally permitted) in order to afford MarketSmart a reasonable opportunity to seek a protective order and Company cooperates with MarketSmart, at MarketSmart’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. Notwithstanding anything in this Agreement to the contrary, MarketSmart may derive data from usage of the DAFwidget that does not identify Company (collectively, “Aggregated Data”). In addition, MarketSmart may, in accordance with DAFwidget Legal Terms and Privacy Statement, collect and use certain information from end users of the DAFwidget on Company’s website (“User Data”). MarketSmart owns all right, title, and interest in and to Aggregated Data and User Data, and may use such data for MarketSmart’s business purposes, such as improving its products and services.

4. Indemnification and Infringement.

(a) Company Indemnity. Company shall defend MarketSmart, its affiliates, and its and their officers, directors, employees, and agents against any and all third-party allegations, suits, claims, actions or proceedings (each a “Claim”) resulting from or related to the Company’s use of the DAFwidget or operation of its website in violation of law or a third-party’s rights (including intellectual property rights), Company’s breach of this Agreement, or Company’s website. Company shall indemnify MarketSmart, its affiliates, and its and their officers, directors, employees, and agents from any out-of-pocket and costs, expenses, and fees (including reasonable attorneys’ fees) incurred by them in connection with such Claim, including, but not limited to, any damages, awards, penalties, and other amounts awarded against or owed to a third party by them resulting from any judgment or settlement of such Claim.

(b) Infringement. Should the DAFwidget become, or in MarketSmart’s opinion is likely to become, the subject of a claim of infringement or trade secret misappropriation, MarketSmart may, at its option and expense either: (i) procure for Company the right to continue to use the infringing DAFwidget, (ii) replace or modify the infringing DAFwidget to make its use non-infringing without loss of substantial functionality, or (iii) terminate this Agreement without any liability to Company.

5. Limitation of Warranty and Liability.

(a) Warranty Limitations. MARKETSMART MAKES AND COMPANY RECEIVES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND REGARDING THE DAFWIDGET OR ANY OTHER MATTER AND MARKETSMART SPECIFICALLY DISCLAIMS AND EXCLUDES ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FREEDOM FROM VIRUSES, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE; ANY WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; OR STATUTORY REMEDY. NO STATEMENT WHETHER MADE BY MARKETSMART’S EMPLOYEES, AGENTS OR OTHERWISE, SHALL BE DEEMED TO BE A WARRANTY BY MARKETSMART FOR ANY PURPOSE OR TO GIVE RISE TO ANY LIABILITY ON THE PART OF MARKETSMART UNLESS SPECIFICALLY CONTAINED IN THIS AGREEMENT.

(b) Exclusion of Consequential and Related Damages. IN NO EVENT WILL MARKETSMART BE LIABLE TO COMPANY UNDER THIS AGREEMENT OR OTHERWISE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, LOSS OF DATA OR USE OF DATA OR INTERRUPTION OF BUSINESS, EVEN IF MARKETSMART OR ITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS.

(c) Limitation of Liability. IN NO EVENT WILL MARKETSMART’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL FEES PAID BY COMPANY TO MARKETSMART FOR THE DAFWIDGET.

6. General.

(a) Governing Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement or the DAFwidget shall be governed in all respects by the laws of the State of Maryland, USA, without giving effect to principles of conflicts of laws. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement. Subject to the following sentence, both parties irrevocably consent to the exclusive jurisdiction of the state and federal courts located in or embracing Greenbelt, Maryland, United States of America. MarketSmart may seek emergency or injunctive relief from any court of competent jurisdiction to protect its rights in its Confidential Information or intellectual property.

(b) Notices. All notices or reports shall be in writing and shall be delivered by personal delivery, facsimile transmission, or e-mail with confirmed receipt, or overnight mail or certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. Notices to MarketSmart shall include a copy to Cozen O’Connor, One Liberty Place, 1650 Market Street, Suite 2800, Philadelphia, PA 19103.

(c) No Agency. The parties to this Agreement are independent contractors and nothing in this Agreement shall be deemed to create a joint venture, partnership, or agency relationship between the parties.

(d) Injunctive Relief. Company acknowledges that its breach of this Agreement may cause MarketSmart immediate and irreparable damage for which recovery of money damages would be inadequate. Therefore, Company agrees that MarketSmart may be entitled to seek injunctive relief to protect its rights under this Agreement in addition to any other remedies available to it, without the necessity of posting bond.

(e) Waiver. If MarketSmart fails to enforce a provision of this Agreement, it shall not be precluded from enforcing the same provision at another time. No waiver of any provision of this Agreement will be effective unless in writing and signed by a duly authorized representative of the party against whom such waiver is being sought.

(f) Severability. If any provision of this Agreement is deemed unenforceable or invalid by law or by a court decision, the provision shall be changed and interpreted if possible to accomplish the intent of the provision within the constraints of the law. Only that provision that is deemed unenforceable or invalid, and not the entire agreement, shall be invalidated.

(g) Assignment. Company may not assign this Agreement, in whole or in part to any third party without the prior written consent of MarketSmart; provided, however, Company may assign this Agreement to an affiliate or entity that acquires all or substantially all of Company’s assets (by merger, asset acquisition, or otherwise) upon written notice to MarketSmart. MarketSmart may assign this Agreement in whole or in part.

(h) Entire Agreement. This Agreement supersedes all previous agreements, whether oral or written, with respect to its subject matter. This Agreement may only be changed in a writing signed by authorized representatives of each party.

(i) Export Compliance. Regardless of whether Company is a US-based entity, Company shall not export or re-export any of the DAFwidget (in whole or in part) to any country without ensuring that such export complies with the Export Administration Regulations of the U.S. Department of Commerce, or any other agency of the U.S. Government. Company agrees to remain at all times in full compliance with U.S. Government export policy and regulations and failure of such compliance shall constitute a material breach of this Agreement.