End User License Agreement (EULA)

This Agreement is entered into by and between Professional Advantage Software Solutions, Inc. ("PA”) and the Licensee ("Licensee").

1           PREAMBLE

1.1        YOUR USE OF THE LICENSED SOFTWARE IS CONDITIONED UPON YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS END USER LICENCE AGREEMENT (“EULA”), INCLUDING WITHOUT LIMITATION THE LIMITED WARRANTIES, DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS EULA, DO NOT MAKE ANY USE OF THE LICENSED SOFTWARE. ANY USE BY YOU OF THE LICENSED SOFTWARE, OR ANY PORTION THEREOF, CONSTITUTES YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS EULA

2           DEFINITIONS

2.1        “Documentation" means any user and technical documentation for the Software in electronic or printed format that is delivered to Licensee with the Software.

2.2        “Licensee" means the end user of the Software.

2.3        “PA Products” means 1Staff Back Office, 1Staff Front Office, Webhouse/1StaffAnalytics, 1Staff Utilities (including: Imaging, Electronic File Import, Time Entry Express, XML Import Service, 1StaffConnect),  ESS, Candidate Search, Collections Management, Collect365, B4B365, PAStreams, National Accounts, Company Data Archive, Webtime, Retail Analytics and Merchandise Planning /RAMP, RMS ConnectPro, Upbeat, EmailPro, Smartask, CheckPro.

2.4        “Software” means the version of PA Products paid for by the Licensee and invoiced by PA or an authorized PA reseller.

2.5        “Subscription” means Products that are purchased on rental basis, with payments made on a regular basis.

3            GRANT OF LICENSE 

3.1          PA grants Licensee the non-exclusive and non-transferable right to:

3.1.1       Copy the server portion of the Software on only one server computer designated (“Designated Computer”) or in a “Cluster” which includes the Designated Server Computer.  A “Cluster” shall mean two or more server computers which are interconnected. Use in a Cluster is only permitted if no module of the Software is active on more than one server computer at any given time. Licensee shall notify PA in advance in the event that it intends to relocate or change the Designated Server Computer.  Licensee may maintain separate non-productive disaster recovery and testing sites provided that the installation is used solely for the purposes of backup and emergency use. Licensee may not have more than one active installation of the Software on the Designated Server Computer or a Cluster unless Licensee purchases additional Software licenses;

3.1.2       Copy the client portion of the Software onto an unlimited number of computers provided that (1) all software so installed references a single database on the Designated Server Computer; and (2) the number of client portion users accessing the Designated Server Computer is limited to the number of users purchased;

3.1.3       Execute and use the Software for Licensee’s internal business operations; and,

3.1.4       Use the associated Documentation and make a reasonable number of copies or printouts thereof for Licensee’s internal use.

3.1.5       Use the Software in perpetuity, unless the Software has been purchased on a Subscription basis. Right to use the Software purchased under a Subscription will be limited to the period in which Subscription Fees have been paid.

3.2          Database Software. Licensee is required to license the appropriate database software, including the appropriate number of user licenses, from the corresponding third party provider.

3.3          Sublicensing/Transfer. Licensee shall not grant sublicenses, rent, transfer, provide commercial hosting service or otherwise assign the Software or Documentation or the right to use the same to benefit any third party.   Any attempt to grant sublicenses, transfer any rights, rent or otherwise assign or deal in the Software or Documentation shall be considered a breach of this Agreement by Licensee.

3.4          Backup Copy.  Licensee may make a reasonable number of backup copies of the Software which shall also be subject to the terms and conditions of this Agreement.  Licensee must maintain an accurate record of the location of such backup copies at all times. Such record may be inspected and verified by PA at any time during Licensee’s business hours upon notice by PA. Licensee acknowledges the need to maintain regular back-up copies and to adopt other such management procedures to avoid the consequence of loss of data in the event of any equipment or software malfunction.

3.5          Restrictions on Use.  Licensee may use the Software and Documentation only in the conduct of its internal business operations and those of a Company as defined in this Section.  "Company" shall mean a business entity which is “Controlled” by or under common “Control” with Licensee.  "Control" of any entity for the purposes of this section means ownership of at least 50% of the shares of an entity or entitlement to elect a controlling interest of the board of directors of such entity or other management relationship sufficient to control the entity's business policies and activities.  The Software may not be used directly or indirectly by the Licensee to operate a service bureau or provide hosting, outsourcing or subscription services. Any unauthorized use of the Software will automatically void this license and subject Licensee and others to legal claims by PA for copyright infringement and unauthorized use, including claims for injunctive relief and monetary damages.

4           PROPRIETARY RIGHTS

4.1        Ownership.  All title and rights of ownership in the Software and Documentation remain with PA and/or its suppliers or licensors and are protected by applicable copyright, patent, trademark and trade secret laws.  Licensee agrees to take any reasonable step necessary to protect the proprietary rights of PA and its suppliers or licensors in the Software and Documentation, including, but not limited to, the proper display of copyright, trademark, trade secret and other proprietary notices on any copies of the Software or Documentation. Licensee must keep the Software free and clear of any claims or liens by third parties. All rights and licenses granted under or pursuant to this Agreement are and shall otherwise be deemed to be, for purposes of Section 365(n) of the U.S. Bankruptcy Code, licenses of rights to “intellectual property” as defined under section 101(56)of the U.S. Bankruptcy Code.

4.2        De-compilation. Licensee shall not disassemble, decompile or otherwise reverse engineer the Software except and only to the extent that such activity is expressly permitted by applicable law.

5           WARRANTIES, EXCLUSIONS AND LIMITATIONS

5.1        Warranties.

5.1.1      Product Warranty. PA warrants that, for a period of ninety(90) days from the date the Software is delivered to Licensee, the Software will substantially conform to the Documentation, provided that itis properly used with the operating system for which it was designed.

5.1.2      Media Warranty. PA warrants that the Software will be available for download or properly copied onto appropriate physical media and that the physical media will be free from defects in materials and workmanship under normal use and services for a period of ninety (90) days from the date the Software is delivered to Licensee.

5.1.3      Title Warranty. PA warrants that it is the owner or authorized Licensee of the Software or has the rights to license the Software to Licensee under the terms of this Agreement.

5.1.4      Virus Warranty. PA warrants that the Software, as delivered by PA, is free from any virus, time bomb or similar disabling device.

5.2         Limitations.

5.2.1      PA does not warrant that the functions contained in the Software will meet Licensee's requirements or that the operation of the Software will be error-free or be uninterrupted.

5.2.2      In order to receive and maintain the above warranties, Licensee must (i) use the Software in accordance with the Documentation; (ii) use the Software on the hardware and with the operating system for which it was designed and in accordance with operating requirements and procedures for such hardware and operating systems; and (iii) allow only personnel trained on the Software to operate the Software.

5.2.3      The above warranties are null and void if Licensee or any third party modifies or changes the Software in any way beyond the scope of the customization options contained in the Software, or otherwise than in accordance with the requirements or procedures for such customization, or if failure of the Software has resulted from accident, abuse or misapplication. The warranties do not apply to errors or malfunctions caused by (i) machine malfunction; (ii) equipment or software not licensed in this Agreement; (iii) use of procedures or data by Licensee not in accordance with the Documentation; or (iv) any other cause not attributable to PA.

5.2.4      Licensee acknowledges that PA is not required to maintain compatibility between the Software and software not specified in this Agreement.

5.2.5      We also use anonymous information, such as usage data and aggregated data, for other lawful purposes, such as telemetry and content that others may find useful.

5.3         Duty to Inform. If Licensee believes that the Software is not substantially performing in accordance with the Documentation, Licensee will promptly notify PA in writing regarding any such non-performance and will provide a listing of out put and such other data as maybe required by PA to reproduce operating conditions as existed when the non-performance occurred.

5.4        Disclaimer of Warranty

5.4.1      EXCEPT AS STATED ABOVE, PA MAKES NO OTHER WARRANTIES REGARDING THE SOFTWARE OR DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, EXPRESSOR IMPLIED WARRANTIES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, AND ANY OTHER WARRANTY, EXPRESS OR IMPLIED.  THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.

5.4.2       Any statements made by a dealer or any other third party other than PA are not warranties and cannot be relied on by Licensee.

5.4.3       PA shall not be liable for any claimed non-conformance of the Software under Article 35(2)of the United Nations Convention on Contracts for the International Sale of Goods, even if that Convention were to be determined applicable to this Agreement and the underlying transactions.

5.5          Limitation of Liability

5.5.1       To the full extent allowed by applicable law, in no event shall PA or anyone else who has been involved in the creation, production or delivery of the Software or the Documentation be liable for any special, exemplary, consequential or indirect damages related to this Agreement or otherwise.  Consequential and indirect damages include loss of data, use, income, anticipated profits on unperformed work or other contracts or projects, loss of business, goodwill or reputation or other consequential or indirect damages as defined by applicable law., even if PA has been advised of the possibility of such loss or damages.

5.5.2       To the full extent allowed by applicable law, PA’s total liability for any and all injuries, claims, losses, expenses, or damages whatsoever arising out of or in any way related to this Agreement from any cause or causes of action including but not limited to PA’s negligence, strict liability, breach of contract or breach of warranty, shall in the aggregate be limited to the price paid by Licensee to PA for the Software.

6             REMEDIES

6.1          To the extent allowed by law, Licensee's exclusive remedy relative to the Software shall be for PA, at its option, to either:

6.1.1        replace the Software that does not meet the limited warranty described above and that is returned to PA on the original distribution media; or

6.1.2        attempt to correct any errors which Licensee finds in the Software during the warranty period and which prevent the Software from substantially performing as described in the Documentation; or

6.1.3        In the event PA determines that the remedies under subsections a) and b) above are impracticable during the warranty period, PA shall refund to Licensee the Software license fees (and no other fees) paid by Licensee. Any replacement Software will be warranted for a period of ninety (90) days from the date such replacement Software is delivered to Licensee.

7           INTELLECTUAL PROPERTY INFRINGEMENT/INDEMNIFICATION

7.1           PA shall defend, indemnify and hold harmless Licensee, its employees, officers and directors, at PA’ sole cost and expense, for any claim, suitor proceeding brought against Licensee which alleges that the Software, as delivered and used in accordance with the terms of this Agreement, infringes any third party patent, copyright or other intellectual property right, and to pay the amount of any judgment or settlement, provided that Licensee gives PA prompt written notice of such claim, suit or proceeding and gives PA full information and reasonable assistance in its defense or settlement.  PA shall be entitled to direct such defense and to settle or otherwise dispose of such claim, suitor proceeding as it sees fit.  If an injunction is obtained in such action against Licensee's use of the Software, PA shall, at its option and expense, either (1) obtain for Licensee the right to continue to use the Software; or (2) replace the Software with a product with substantially equivalent functionality; or (3) modify the Software so that it becomes non-infringing, while maintaining substantially equivalent functionality; or, if(1), (2)or (3) above are not practical, terminate this Agreement and reimburse Licensee for the Software license fees actually paid by Licensee to PA.  The reasonable costs of Licensee's cooperation with PA at PA' request, in accordance with this clause 7, shall be paid by PA and shall include the reasonable costs of Licensee's initial consultation with its attorney.  No other costs or expenses shall be incurred for the account of PA without PA's prior written consent.  Licensee may participate with PA in Licensee's own defense in such claim, suitor proceeding, at Licensee's option and at Licensee's sole expense.

7.2           Licensee agrees to defend and hold harmless PA and its officers and employees against any loss, cost or expenses incurred as a result of a claim based on modifications to the Software made by or for Licensee without PA's prior written approval.

8           NO AGENCY OR PARTNERSHIP RELATIONSHIP

8.1        Independent Reseller. Licensee recognizes and acknowledges that any distributor or authorized reseller of PA, through which Licensee has licensed the Software or obtained services related to the Software, is not the agent or the partner of PA.  Any such distributor or authorized reseller is an independent company, person, or entity with no authority to bind PA or to make representations or warranties on behalf of PA.  In this regard, PA makes no representation or warranties regarding its software except as expressly set forth in this Agreement.

8.2        Invoicing and Payment.PA acknowledges and agrees that if Licensee licenses the Software from an independent third party vendor, Licensee will owe no license fees to PA upon full payment of the license fees to such vendor.

9            EXCLUSIVE AGREEMENT

9.1         This Agreement, constitutes the entire agreement of the parties hereto with respect to the subject matter here of and supersedes all previous proposals, oral or written, express or implied, and all negotiations, conversations or discussions heretofore had between the parties here to related to the subject matter of this Agreement. To the extent that the terms and conditions of this Agreement conflict with any other written or oral statements or representations made by PA the terms and provisions of this Agreement shall be controlling.

10          TERM AND TERMINATION

10.1       Term. The licenses granted under this Agreement shall commence on the date the Software is installed and shall continue until terminated.

10.2       Termination. Either party may immediately terminate this Agreement if the other party breaches any material representation, obligation or provision of this Agreement and does not cure such breach within thirty (30) days of receiving written notification of such breach. Upon such termination, Licensee, at the option of PA, shall either promptly return to PA all copies of the Software and Documentation in Licensee's possession or destroy all such copies, and shall certify in writing that all such copies have been destroyed. PA has the right to inspect and audit Licensee’s computers to ensure compliance with the preceding requirement.

10.3       Other Obligations. Termination of this Agreement does not affect or terminate any agreement of commitments Licensee may have with other entities, including, but not limited to, application service providers or leasing companies.

11          ARBITRATION AND GOVERNING LAW

11.1       Disputes.  Any dispute, controversy, cause of action, or claim, of any kind or nature whatsoever, whether legal or equitable, including, but not limited to, claims sounding in contract, torts or products liability and claims based upon alleged violations of consumer protection laws, which arise out of or relate to (1) this Agreement, or the breach, termination or invalidity of this Agreement,(2) the sale, installation, modification or use of the Software sold, or (3) any services rendered in connection with the sale, installation, modification or use of the Software shall be finally and exclusively settled by arbitration in accordance with the Arbitration Rules of the American Arbitration Association in effect on the date of this Agreement by one (1) arbitrator appointed in accordance with such Rules.  The place of arbitration shall be Fargo, North Dakota.  Judgment upon the award of the arbitrators maybe entered in any court having jurisdiction thereof.

11.2       Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of North Dakota without regard to the choice of law or conflict of law principles.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

12          GENERAL

12.1       Assignment.  Licensee shall not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of PA which consent shall not be unreasonably withheld; provided, however, that no consent shall be required for any assignment or transfer in the event of an initial public offering, merger, acquisition, consolidation, sale of all or substantially all of Licensee’s assets or stock except that Licensee shall notify PA in writing prior to such assignment or transfer.  This Agreement shall inure to the benefit of and shall be binding on the successors of the parties.  This Agreement and the rights and obligation arising hereunder shall not be affected by any change in the corporate structure or ownership of the parties except where Licensee goes into liquidation, or becomes subject to administration or is voluntarily or involuntarily wound up, in which case this Agreement and Licensee’s rights and obligations arising hereunder automatically terminate.

12.2       Export Controls.  Licensee agrees that no technical data received from PA, nor the direct product thereof, will be shipped, transferred or exported, directly or indirectly, to any country in violation of any applicable law, including the United States Export Administration Act and the regulations thereunder.

12.3       Severability.  In the event that any or any part of the terms of this Agreement are in conflict with any rule of law or statutory provision or otherwise void, unenforceable or illegal under the laws or regulations of any government or subdivision thereof, such terms or parts thereof shall be deemed stricken from this Agreement, but such invalidity, unenforceability or illegality shall not invalidate any of the other terms of this Agreement, and this Agreement shall continue in force, unless the invalidity, unenforceability or illegality of any such provisions hereof does substantial violence to, or where the invalid,  unenforceable or illegal provisions comprise an integral part of, or are otherwise inseparable from, the remainder of this Agreement. The validity or enforceability of that provision or relevant part in any other jurisdiction is not affected.

12.4      Waiver. No failure by either party hereto to take any action or assert any right hereunder shall be deemed to be a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right.

12.5      Québec. The parties declare that they have required that this agreement and all documents related hereto, either present or future, be drawn up in the English language only. Les parties déclarent par les présentes qu'elles exigent que cette entente et tous les documents y afférents, soit pour le présent ou le futur, soient rédigés en langue anglaise seulement.

License issued by authors and owners of the Intellectual property:

PROFESSIONALADVANTAGE PTY LTD, Level 16, 124 Walker Street, North Sydney 2060, Australia. Phone +61 2 9919 8900, enquiries@pa.com.au

And

PROFESSIONAL ADVANTAGE SOFTWARE SOLUTIONS, INC. , 4820 30th Avenue South, Fargo, ND 58104, USA. Phone +1 701 235 2363, profad@profad.com