END USER LICENSE AGREEMENT

This End User License Agreement (“Agreement”) is a binding legal contract between you (either an individual or a legal entity) and GCC Innovative Technologies LLC ("GCC"), a Florida limited liability corporation with its principal office located at 1 Orlando Ave Ave, #2, Cocoa Beach, FL 32931.  By installing, accessing or using the software and any associated user manuals and other documentation provided by GCC (“Documentation”) and Enhancements (as defined below) provided with this Agreement (collectively, the “Software”) you (also referred to herein as “Licensee”) will be bound by the terms of this Agreement.  If you do not agree to the terms of this Agreement, GCC is not willing to license any right to use or access the Software to you.  In such event, you may not install, access, use or copy the Software. 

APPLICATION ACCESS AND USE LICENSE

The Software is licensed to you, not sold. Except for the limited license granted in this Agreement, GCC and its licensors retain all right, title and interest in the Software, all copies thereof, and all proprietary rights in the Software, including copyrights, patents, trademarks and trade secret rights. 

1. GRANT OF LICENSE.  This Agreement grants you the following rights, as applicable:

· License.  During the term of this Agreement, GCC grants you a nonexclusive, nontransferable, revocable (as permitted herein) license to access and use the Software which will be hosted by GCC.  Licensee acknowledges and agrees that GCC may use certain embedded technological and software controls to enforce any applicable license restrictions.

· Enhancements. GCC reserves the right to upgrade, enhance, change or modify the Software at any time in its sole discretion (“Enhancements”). Any Enhancements made available to you by GCC, if any, will be subject to the terms of this Agreement, except to the extent that conflicting or more restrictive provisions are agreed upon in future agreements relating to such Enhancements. 

· Third Party Components.  The Software and future Enhancements may contain certain third party components (“Third Party Components”) which are provided to you under terms and conditions which are different from this Agreement, or which require GCC to provide you with certain notices and/or information. Your use of each Third Party Component which contains or is accompanied by its own license agreement will be subject to the terms and conditions of such other license agreement, and not this Agreement.  Notwithstanding the foregoing, the following terms and conditions apply to all “Third Party Components”: (i) all Third Party Components are provided on an “AS IS” basis; (ii) GCC will not be liable to you or indemnify you for any claims related to the Third Party Components; and (iii) GCC will not be liable for any direct, indirect, incidental, special, exemplary, punitive or consequential damages with respect to the Third Party Components.  Your sole and exclusive remedy with regard to any defect, claim, or other dispute relating to the Third Party Components is to cease use of such components.

· Intellectual Property Ownership. The Software contains material that is protected by United States copyright and trade secret law, and by international treaty provisions.  All rights not expressly granted to Licensee under this Agreement are expressly reserved by GCC and its licensors.  Licensee shall not modify, remove or destroy any proprietary markings or confidential legends placed upon or contained within the Software, the Documentation, or any related materials.  All copyrights, patents, trade secrets, trademarks, service marks, trade names, moral rights and other intellectual property and proprietary rights in the Software shall remain the sole and exclusive property of GCC or its licensors, as applicable.

· Beta Software.  GCC may designate certain Enhancements or new releases of the Software as “Beta Software.” Such Beta Software will not be ready for use in a production environment.  At this early stage of development, operation of the Beta Software may be unpredictable and lead to erroneous results.  You acknowledge and agree that: (i) the Beta Software is experimental and has not been fully tested; (ii) the Beta Software may not meet your requirements; (iii) the use or operation of the Beta Software may not be uninterrupted or error free; (iv) your use of the Beta Software is for purposes of evaluating and testing the product and providing feedback to GCC; (v) you shall inform your employees, staff members, and other users regarding the nature of the Beta Software; and (vi) you will hold all information relating to the Beta Software and your use of the Beta Software, including any performance measurements and other data relating to the Beta Software, in strict confidence and shall not disclose such information to any unauthorized third parties.  Your use of the Beta Software shall be subject to all of the terms and conditions set forth herein relating to the Software.  You shall promptly report any errors, defects, or other deficiencies in the Beta Software to GCC.  NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, ALL BETA SOFTWARE IS PROVIDED “AS-IS” AND “AS-AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND. You hereby waive any and all claims, now known or later discovered, that you may have against GCC and its suppliers/licensors arising out of your use of the Beta Software.

2. TERM.   The license will commence on the date you first use the Software or accept this Agreement, whichever is earlier (the “Effective Date”), and shall remain in effect for one (1) year thereafter (the “Initial Term”).  Upon expiration of the Initial Term, this Agreement shall automatically renew for successive one (1) year terms (each a “Renewal Term”) unless either party provides notice of termination or non-renewal no less than thirty (30) days prior to expiration of the then-current term.  The Initial Term and any Renewal Terms are referred to herein collectively as the “Term.”

3. LIMITATIONS ON LICENSE.  The license granted to you in this Agreement is restricted as follows: 

· Limitations on Copying and Distribution.  You may not copy or distribute the Software except to the extent that copying is necessary to use the Software for purposes set forth herein.  You may make a single copy of the Software for backup and archival purposes.

· Limitations on Reverse Engineering and Modification.  You may not reverse engineer, decompile, disassemble, modify or create works derivative of the Software. You may not alter or modify any disabling mechanism which may be resident in the Software.

· Sublicense, Rental, and Third Party Use.  You may not assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the Software, or directly or indirectly permit any third party to use or copy the Software. 

· Proprietary Notices.  You may not remove any proprietary notices (e.g., copyright and trademark notices) from the Software. You must reproduce the copyright and all other proprietary notices displayed on the Software on each permitted back-up or archival copy.

· Use in Accordance with Documentation.  All use of the Software shall be in accordance with its then current Documentation.

· Compliance with Applicable Law. You shall be solely responsible for ensuring that your use of the Software is in compliance with all applicable foreign, federal, state and local laws, and rules and regulations. 

· Confidentiality.  You acknowledge and agree the Software and associated Documentation constitute valuable proprietary and confidential information and intellectual property (collectively, the “Proprietary Information”) of GCC.  You may not use or disclose the Proprietary Information without GCC’Ss prior written consent, except disclosure to and subsequent uses by your employees and contractors who have a need-to-know, provided such employees and contractors have executed written agreements restricting use or disclosure of Proprietary Information that are at least as protective as those set forth in this Agreement.  You agree to use at least the same degree of care in protecting the Proprietary Information as you use to protect your own similar information, but in no event less than reasonable care.  You acknowledge that due to the unique nature of the Proprietary Information, GCC will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Proprietary Information.  In addition to any other remedies that may be available in law, in equity or otherwise, GCC shall be entitled to obtain injunctive relief to prevent such unauthorized use or disclosure.  You shall not use any information or data disclosed by GCC in connection with this Agreement to contest the validity of any GCC intellectual property.  Any such use of GCC’Ss information and data shall constitute a material, non-curable breach of this Agreement.

4. LIMITED WARRANTIES

· Software.  GCC hereby warrants that for a period of ninety (90) days from the date of delivery, the Software will operate in substantial conformance with the Documentation.  All warranty claims not made in writing within such period shall be deemed waived.  The foregoing warranty is solely for the benefit of Licensee and Licensee shall have no authority to extend such warranty to any third party.  This warranty is contingent on the proper installation and use of the Software as described in the Documentation.

· Exclusive Remedy.  The sole and exclusive remedy of Licensee and the sole and exclusive liability of GCC for breach of the foregoing warranties, shall be to seek repair or replacement of the non-conforming Software or reperformance of the relevant services. In the event that such breach cannot be remedied by repair, replacement, or reperformance, or where a repair or replacement remedy is not applicable, GCC shall be liable only for Licensee’s direct damages in the aggregate up to the limit provided in this Section 4.

· Modification of Software.  Except as otherwise agreed in writing by the parties, any modification to the Software by Licensee or any other third party, or failure by Licensee to implement any improvements or updates to the Software as supplied by GCC shall void GCC’S warranty obligations and GCC’S warranties under this Section 4, to the extent any failure or error results from such modification.

5. FEES.  The license fees payable to GCC for the rights hereunder are as set forth in the separate Software Purchase Order Form or similar ordering document provided by GCC describing the license fees and any other fees owed by you. All amounts to be paid by Licensee hereunder shall be due and payable thirty (30) days after Licensee’s receipt of the invoice therefore.  All payments not made by Licensee when due shall be subject to late charges of the lesser of (i) one and one-half percent (1.5%) per month of the overdue amount or (ii) the maximum amount permitted under applicable law.  Licensee shall pay all sales, use and excise taxes relating to, or under, this Agreement, exclusive of taxes based on or measured by GCC’S net income, unless Licensee is exempt from the payment of such taxes and provides GCC with evidence of such exemption.

6. INTELLECTUAL PROPERTY INFRINGEMENT

· Indemnification.  GCC agrees to defend and indemnify Licensee and to hold it harmless from all damages awarded against Licensee, and all reasonable expenses (including attorneys’ fees) incurred by Licensee, for any claim of infringement of a third party’s U.S. patent registered as of the Effective Date or copyright asserted against Licensee by virtue of Licensee’s authorized use of the Software as delivered by GCC; provided that GCC is given prompt notice of any such claim and right to control and direct the investigation, preparation, defense and settlement of each such claim and further provided that Licensee shall fully cooperate with GCC in connection with the foregoing. Notwithstanding the foregoing, GCC assumes no liability or indemnity obligation for claims of infringement of intellectual property rights arising from (i) use of the Software in combination with non-GCC approved third party products, including hardware and software, (ii) modifications or maintenance of the Software by a party other than GCC, (iii) misuse of the Software, and (iv) failure of Licensee to implement any improvement or updates to the Software, if the infringement claim would have been avoided by the use of the improvement or updates.  Licensee shall indemnify and defend GCC and hold it harmless from and against any claims, damages, or costs, including reasonable attorneys’ fees, asserted by third parties arising out of any of the foregoing exceptions; provided that Licensee is given prompt notice of any such claim and right to control and direct the investigation, preparation, defense and settlement of each such claim and further provided that GCC shall fully cooperate with Licensee in connection with the foregoing.

· Replacement.  Should the Software as delivered by GCC become or, in GCC’S opinion, be likely to become, the subject of a claim of infringement, GCC may, at its option and expense either (a) procure for Licensee the right to continue to use the Software as contemplated hereunder, or (b) replace or modify the Software and/or modify its use to make its use hereunder noninfringing, without loss of material functionality. If neither option is reasonably available to GCC, then this Agreement may be terminated at the option of either party hereto without further obligation or liability.  In the event of such a termination, GCC shall refund to Licensee a pro rata portion of the license fees paid in advance for the Software based on the remaining term of this Agreement.

· Entire Liability.  THE FOREGOING PROVISIONS OF THIS SECTION 7 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF LICENSOR AND THE EXCLUSIVE REMEDY OF LICENSEE AND ANY OTHER ENTITY, WITH RESPECT TO ANY ALLEGED INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

 

7. TERMINATION.

· Breach of Agreement.  Without prejudice to any other rights, GCC may terminate this Agreement on thirty (30) days prior written notice if you fail to comply with any of the terms and conditions of this Agreement and fail to cure the failure within the foregoing period, provided that GCC shall be entitled to immediately terminate this Agreement without notice in the event you breach the license terms and restrictions set forth in Section 1 or Section 3, of the confidentiality obligations under this Agreement.

· Termination for Convenience.  You may terminate this Agreement at any time by discontinuing use of the Software, complying with your termination obligations set forth below, providing GCC written notice, and returning the Software to GCC.

· Licensee’s Termination Obligations.  In the event of any expiration or termination of this Agreement for any reason, you must remove all copies of the Software and all of its components from all of your systems, and destroy all related media and Documentation, if any.  The license granted to the Software will automatically terminate on expiration or termination of this Agreement.

8. WARRANTY DISCLAIMER.  EXCEPT AS PROVIDED IN SECTION 4 (LIMITED WARRANTIES), THE APPLICATION AND MAINTENANCE SERVICES ARE PROVIDED ON AN “AS AVAILABLE,” “AS IS” BASIS.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR AND ITS LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE APPLICATION AND MAINTENANCE SERVICES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE.  LICENSOR DOES NOT WARRANT THAT THE  APPLICATION WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APPLICATION WILL BE CORRECTED.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR SHALL CREATE ANY ADDITIONAL LICENSOR WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF LICENSOR’S OBLIGATIONS HEREUNDER. 

LICENSOR  MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED WITH REGARD TO ANY, HARDWARE, PRODUCTS, SOFTWARE, OR PROGRAMMING OBTAINED BY LICENSOR FROM THIRD PARTIES (COLLECTIVELY, THE “THIRD PARTY ITEMS”). LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE/NON-INFRINGEMENT, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE THIRD PARTY ITEMS.  LICENSOR SHOULD CONSULT THE RESPECTIVE VENDORS/MANUFACTURERS OF THE THIRD PARTY ITEMS FOR WARRANTY AND PERFORMANCE INFORMATION.

THE APPLICATION MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET.  YOU ACKNOWLEDGE AND AGREE THAT LICENSOR DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR DATA, WEB‑SITES, COMPUTERS, OR NETWORKS.  LICENSOR SHALL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES.  YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF YOUR DATA AND SYSTEMS.

Legal Compliance – No Fair Credit Reporting Act Use. Licensee acknowledges that (i) GCC does not monitor the content of the information passing through the Services for purposes of verifying accuracy or legal compliance,  (ii) Customer shall use commercially reasonable efforts to ensure that the information it and its Authorized Users transmit thereby complies with all applicable laws and regulations, whether now in existence or hereafter enacted and in force,  (iii) GCC is not a credit reporting agency under the Fair Credit Reporting Act (FCRA) and the software Services are that of presenting information from a Customer’s internal records and third-parties for convenience and not for any permitted use or other purpose covered under the FCRA, (iv) GCC disclaims any liability from business development and opportunity pursuit decisions made utilizing the Services and ProDashTM.

9. LIMITATION OF LIABILITY.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS/LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, INDIRECT DAMAGES, OR ANY OTHER DAMAGES, WHICH SHALL INCLUDE, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOST DATA AND BUSINESS INTERRUPTION, ARISING OUT OF THE USE OR INABILITY TO USE THE APPLICATION, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE).  IN ANY CASE, THE ENTIRE LIABILITY OF LICENSOR AND ITS SUPPLIERS/LICENSORS UNDER THIS AGREEMENT FOR ALL DAMAGES OF EVERY KIND AND TYPE (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL BE LIMITED TO THE INITIAL LICENSE FEE PAID BY YOU, IF ANY, FOR THE APPLICATION. 

Some states do not allow the exclusion of incidental or consequential damages, or the limitation on how long an implied warranty lasts, so some of the above may not apply to you.

10. COMPLIANCE AND AUDIT. If requested by GCC, Licensee will submit an annual certification, signed by an officer or authorized representative, specifying the number of users and, if applicable, number and location of all copies of the Software in Licensee’s possession or use. GCC may also, once annually, upon reasonable notice and during regular business hours, gain access to Licensee’s facilities and systems to audit compliance with the license restrictions set forth herein.

11. INDEMNITY.  You agree to indemnify, defend and hold harmless GCC and its parent and their respective officers, directors, shareholders, agents, affiliates, and licensors from and against any and all third party claims of any kind (along with attorney’s fees and litigation costs) arising out of, resulting from, or in connection with your breach of this Agreement or your use or misuse of the Software, including any combination of the Software with any hardware, software, or other intellectual property not provided by GCC.

12. GOVERNING LAW.  This Agreement is governed by and construed in accordance with the laws of the State of  Florida,  as applied to agreements entered into and wholly performed within Florida between Florida residents.  This Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods.  Any action or proceeding brought by either party hereto shall be Brevard County, Florida, and the parties submit to the in personam jurisdiction of such courts for purposes of any action or proceeding.

13. GENERAL.

· This Agreement constitutes the entire understanding and agreement between GCC and you with respect to the transactions contemplated in this Agreement and supersedes all prior or contemporaneous oral or written communications with respect to the subject matter of this Agreement, all of which are merged in this Agreement.  In particular, if you are a current licensee of the Software, this Agreement shall supersede your existing license agreement and that agreement shall be of no further force or effect.

· This Agreement shall not be modified, amended or in any way altered except by an instrument in writing signed by authorized representatives of both parties. 

· In the event that any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree, the remainder of this Agreement shall remain valid and enforceable according to its terms.  Any failure by GCC to strictly enforce any provision of this Agreement will not operate as a waiver of that provision or any subsequent breach of that provision.

· Neither party shall assign this Agreement without the written consent of the other party, which consent shall not be unreasonably withheld.  Notwithstanding the foregoing, either party may assign this Agreement, without the other party’s consent, to any Affiliate or subsidiary, or in the event of a merger, acquisition, or sale of all or substantially all of its assets. “Affiliate” means any entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with the party.

· Except for Licensee’s payment obligations, neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions.

· The following provisions shall survive any termination or expiration of this Agreement:  Sections 3 (Limitations on License), 8 (Termination) , 10 (Limitation of Liability), 11 (Indemnity), 13 (Governing Law),  14 (General), and 15 (U.S. Government Rights).  GCC may assign any of its rights or obligations hereunder as it deems necessary. 

· IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.

14. U.S. GOVERNMENT RIGHTS.  The Software is commercial computer software as described in DFARS 252.227-7014(a)(1) and FAR 2.101.  If acquired by or on behalf of any the Department of Defense (“DOD”) or any component thereof, the U.S. Government acquires this commercial computer software and/or commercial computer software Documentation subject to the terms of this Agreement as specified in DFARS 227.7202-3, Rights in Commercial Computer Software or Commercial Computer Software Documentation.  If acquired by or on behalf of any civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software Documentation subject to the terms of this Agreement as specified in FAR 12.212, Computer Software. 

15. AUTHORIZATION.  By downloading, installing, accessing, or using the Software, you indicate that you have the authority to bind yourself and your organization to the terms of this Agreement.