FOXFIRE SOFTWARE END-USER LICENSE AGREEMENT

This End-User License Agreement (this “Agreement”) is entered into by and between, (the Client) (“Licensee”), and Foxfire Technologies, Inc. (“Foxfire”) with offices at 101 N Main Street, Greenville, SC, 29601. For and in consideration of the mutual covenants set forth herein the parties agree as follows:

1. SOFTWARE LICENSE.   Subject to the terms of this Agreement, Foxfire hereby grants to Licensee a limited, nonexclusive and nontransferable perpetual license (“License”) to use each Application and its associated Documentation solely for Licensee’s own internal operations. An Application is the object-code version of the computer software applications specified on an Order Form. Licensee may make a reasonable number of copies of each Application and its associated Documentation as needed solely for back-up, archival and testing purposes.  Licensee may only create and use such total number of User Accounts with respect to its use of each Application as is specified on one or more Order Forms applicable to the Application. This Agreement and the License and Support Services may terminate earlier upon Licensee’s material breach of this Agreement as specified in clause 5 hereof. Documentation shall mean the user’s, administrator’s and technical manuals pertaining to an Application.  Foxfire shall deliver to Licensee the Application and its related Documentation electronically.

2. Software Maintenance and Support Services.  “Software Maintenance" means services which Foxfire offers in support of an Application, including fixing errors or releasing new patches, minor releases or major releases of the software. “Support Services” means the remote or onsite support of Foxfire’s software by Foxfire’s personnel via phone, web meeting or on site. 

   1.  Software Maintenance includes: 1) Error Correction: Foxfire shall be responsible for using all reasonable diligence to correct verifiable and reproducible Errors when reported to Foxfire. 2) Software Updates, Upgrades and/or Service Packs to the Licensed Product.  Foxfire shall maintain the necessary resources to render the services set forth in this Agreement. 

   2. Support Services Includes: Answers to Questions: Foxfire shall provide answers to reasonable and specific questions about the installation, setup, and use of Foxfire Products.  Answers may be provided in the form of references to sources of information.  Additionally, Foxfire may refer the Licensee to sources of information not provided by Foxfire.  Telephone Hot-Line and Electronic Mail Messages: Foxfire will be available to Licensee to respond to questions and provide assistance between the hours of 8:00am to 5:00pm, Eastern time, weekdays, excluding national holidays.  Foxfire will provide an emergency after hours number for afterhours assistance.  Software Maintenance do not include:  Problems resulting from the misuse, alteration, or damage of the Product.  Problems resulting from the failure to perform data backups. Problems resulting from modifications of the Products not made or authorized by Foxfire. Problems resulting from errors in the operating environment for Foxfire Products, including, but not limited to, Third Party Software or Third Party Products.  Problems resulting from the combination of Foxfire Products with such other programming or equipment to the extent such combination does not constitute regular use of the Products.  Problems resulting from environmental conditions, including, but not limited to, insufficient, excessive, or irregular electrical power, failure of air conditioning, excessive heat or humidity, flood, water, wind, or lightning.  Problems resulting from the relocation or reinstallation of the Products without Foxfire involvement.  Services related to deployment included but not limited to installation, training, configuration, integration, customization, etc. These services may be provided through Support Services and will count toward the hours purchased in the Support Services agreement. 

   3. With respect to each Application for which Foxfire is obligated to perform Support Services pursuant to an Order Form, Foxfire will provide reasonable telephone and e-mail assistance relating to the use of the Application.

   4. With respect to Software Maintenance, Foxfire will make available to Licensee updates of the Application and associated Documentation as they become available to Foxfire customers in general.  Foxfire will be obligated to provide the Software Maintenance only for either the then-current and immediately prior versions of the Application as of the date of Licensee’s request for Software Maintenance.  The agreed support policy may define additional terms and conditions applicable to Foxfire's Support Services and/or Software Maintenance.  Foxfire may change or update the support policy terms from time to time, effective as of the next Support Services and/or Software Maintenance term. When requesting Support Services, Licensee will provide Foxfire with all information and access determined reasonably necessary by Foxfire to diagnose, replicate and resolve any Application problem, will maintain any third-party products required to operate the Applications at the release levels required by Foxfire for the proper operation of Applications being used by Licensee, and will operate the Applications on a computer system consistent with the standard system requirements specified by Foxfire. The support term will begin on the Effective Date of this agreement and will continue through the term of the agreement.  Support Services are included the with the term license subscription.

3. SERVICES.  Foxfire may also provide Licensee with the Services including but not limited to assistance in configuration, training, customization, testing, integration, etc.  Services may be subject to additional terms and conditions, which are hereby incorporated into this Agreement by this reference via a Services Statement of Work or Work Orders or Change Order.  Additional Services may be purchased as need. 

4. PAYMENT.  Foxfire shall receive payment for License Use Fees, Support Services and Services performed within 30 days of the invoice date unless otherwise agreed to on the order form. Payments made after this time will be considered late payments.  With respect to Services and Support provided by Foxfire, Licensee shall pay Foxfire all reasonable and actual out of pocket travel expenses incurred by Foxfire.   Afterhours, weekend and holiday time may carry additional charge which will be identified to the Licensee at the time the service is requested. In addition to all other remedies Foxfire may have under this Agreement or at law, any amounts not paid when due shall bear interest at a rate equal to the lesser of (i) the rate of three percent (3%) per month or (ii) the highest legal rate of interest, for any month or portion thereof for which payment is not made after the due date.  If payments become delinquent, Foxfire may cease to provide Services or Support Services for the client and require that the client’s License use be suspended until the delinquent payments are made.  Other special payment terms may be referenced and included on the Order Form, Services Statement of Work, Work Order or Change Order. The License Fees and all other payments provided for under this Agreement and are exclusive of any and all taxes or other charges applicable to the licensing, installation, support, or use of the Applications, and Licensee shall pay or contest in good faith any such taxes or charges within ten (10) days after Licensee’s receipt of proper bills or statements from Foxfire or the taxing authorities.

5. TERMINATION AND EFFECT.  This License may be terminated if (a) Licensee materially breaches this Agreement and such breach continues for a period of sixty days after written notice to Licensee, or (b) if Licensee becomes insolvent.  Upon the termination of a License, Licensee will cease using the Application to which such License applies, will render unusable the Application or portions thereof installed on Licensee’s computer systems, will have rendered unusable the Application, and will have an authorized representative of Licensee’s business certify in writing to Foxfire that Licensee has complied with this Section 5.

6. PROPRIETARY RIGHTS.  Licensee acknowledges Foxfire owns the Applications and that the Applications are not generally published and embodies Foxfire’s trade secrets.  All right, title and interest in and to the Applications, including without limitation, all copyrights, trade secrets and other intellectual property rights pertaining thereto will remain vested in Foxfire. Except as expressly authorized by this Agreement, Licensee may not use, display, copy, modify, distribute or reproduce the Applications. In addition, Licensee shall not modify, transfer, rent, lease, reverse engineer, sublicense, decompile or disassemble the Applications. Foxfire reserves all rights not expressly granted to Licensee hereunder.  Licensee shall not disclose Foxfire’s trade secrets. The parties agree that monetary damages will not be an adequate remedy for breach of the obligations set forth herein. In addition to all other remedies, Foxfire will have the right to apply to a court of competent jurisdiction for a temporary restraining order, preliminary injunction or other equitable relief.

7. LIMITED WARRANTIES AND DISCLAIMERS.  Foxfire represents and warrants that, during the thirty (30) day period following the first delivery of an Application to Licensee, the Application will operate substantially in accordance with the applicable Documentation, provided that Licensee operates the Application in compliance with such Documentation.  In the event an Application fails to satisfy the warranty immediately above, Foxfire will, at its option, correct or replace the nonconforming portion of the Application in a timely manner.  Following the expiration of the warranty period, all issues related to the operation of an Application will be handled by Foxfire as Support Services provided to Licensee pursuant to an Order Form.  The limited warranty set forth herein will not apply to nonconformities determined by Foxfire to have been caused by 1) deletions or modifications to an Application performed by a party other than Foxfire, unless under the direction of Foxfire’ customer support and Licensee performs the changes in accordance therewith, 2) negligence in the operation or use of an Application, or 3) use, adjustments, installation, or malfunction of any products or goods other than those authorized by Foxfire. The limited warranties set forth in this Agreement are made for Licensee’s benefit only. The remedies in this Section are the sole and exclusive remedies for breach of these limited warranties. FOXFIRE MAKES NO WARRANTY OR REPRESENTATION THAT LICENSEE’S USE OF THE APPLICATIONS WILL BE UNINTERRUPTED OR ERROR-FREE, AND SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, WITH RESPECT TO THE APPLICATIONS, OR ANY OTHER GOODS OR SERVICES PROVIDED BY FOXFIRE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

8. INDEMNIFICATION.  Foxfire will defend any action (or portion thereof) brought against Licensee based solely on a claim that an Application infringes a patent or copyright or misappropriates the proprietary trade secret of any third party. Foxfire will indemnify Licensee against damages awarded against Licensee in such actions that are directly attributable to such claim, provided that Licensee is not in breach of this Agreement and that Foxfire is given prompt written notice of such claim, reasonable assistance from Licensee, and sole authority to defend or settle such claim.  If an Application becomes, or in Foxfire’s reasonable opinion is likely to become, the subject of a valid claim of infringement, Foxfire may, at its option, procure for Licensee the right to continue to use the Application, replace or modify the Application in a manner reasonably satisfactory to Licensee to make it non-infringing, or terminate this Agreement and refund (i) the License Fees paid under this Agreement less reasonable amortization through the date of termination based upon a one-hundred and twenty (120) month useful life and (ii) a pro rata portion (based upon the unused portion of the applicable support period) of all annual support fees paid to Foxfire, if any, during the twelve (12) month period prior to the date of such termination. Foxfire will have no liability for any claim based on (a) any modification of an Application, except with respect to modifications performed by Foxfire; (b) any use of an Application other than as provided in this Agreement; or (c) any use of an Application with any third-party products not licensed from Foxfire or the combination of any third party products not licensed from Foxfire.  This Section sets forth Foxfire’s complete liability with respect to infringement of intellectual property rights. 

9. LIMITATION OF LIABILITY.  UNDER NO CIRCUMSTANCES WILL FOXFIRE HAVE ANY LIABILITY TO LICENSEE OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES OR COSTS (INCLUDING ATTORNEYS' FEES) RESULTING FROM ANY CLAIM (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR PRODUCTS LIABILITY) REGARDING THIS AGREEMENT OR RESULTING FROM THE USE OR INABILITY TO USE, OR PERFORMANCE OR NONPERFORMANCE OF, THE APPLICATIONS OR ANY OTHER GOODS OR SERVICES PROVIDED BY FOXFIRE, OR ANY COMPONENT THEREOF, EVEN IF FOXFIRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL FOXFIRE BE LIABLE TO LICENSEE UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS (a) FOR THE PARTICULAR APPLICATION INVOLVED, THE LICENSE FEES PAID UNDER THIS AGREEMENT, (b) FOR THE PARTICULAR SUPPORT SERVICES INVOLVED ALL SUPPORT FEES PAID TO FOXFIRE, IF ANY, DURING THE PRIOR TWELVE (12) MONTH PERIOD AND (c) FOR ANY OTHER GOODS OR SERVICES INVOLVED, THE AMOUNT PAID FOR SUCH GOODS OR SERVICES. FOXFIRE WILL HAVE NO LIABILITY FOR ANY DAMAGES WHATSOEVER RELATING TO ANY PRODUCTS, GOODS OR SERVICES NOT PROVIDED BY FOXFIRE.