AssociateEngine™ Script License Agreement

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AssociateEngine™ License Agreement

(as of June 1, 2003)

NOTE TO USER: THIS IS A CONTRACT.

Read this agreement carefully before installing the the AssociateEngine software. By installing the software, you accept the terms of this Agreement. If you do not agree with the terms and conditions of this Agreement, do not install the software.

This License constitutes an agreement between Cusimano.Com Corporation, a corporation in the Province of Ontario, Canada (sometimes referred to as "CusCom" or "We") and the person or legal entity who has legally acquired a license from Cusimano.Com Corporation to use the Software (referred to as "you" or "your" or "Licensee")

CusCom grants to you a non-exclusive, "single-user" license to use the AssociateEngine computer application (the "Software") and the related documentation (the "Documentation") according to and subject to the terms and conditions set forth in this Agreement. Without limiting the generality of the foregoing, the term "Software" shall also include any demonstration versions, replacements, modified versions, additions, support files, template files, format files, Script Key file(s) (as defined below), configuration or parameter files, and copies of the Software licensed to you by CusCom.

If and only if you agree to the following terms and conditions, CusCom grants the Licensee, a limited non-exclusive revokable license to use the Software as described below (the "License"):

1. Use of the Software:

(a) Subject to section 1(b), you as the Licensee of the Software may:

use the Software on any website or websites that you own for the sole purposes of (i) generating sales for yourself as an associate of the Amazon Associates Program, and (ii) generating sales for yourself as a third party seller with the Amazon Marketplace Program, as those programs are operated by Amazon.com LLC (referred to as "Amazon");

may make one backup copy of the Software, provided your copy is for backup purposes only, that you copy all proprietary notices and licenses contained therein, and such copy is used only if the original copy is defective.

(b) You as the Licensee of the Software may NOT:

use or permit the use of the Software or the output generated by the Software, or any part thereof, in or in association with any website that you do not own or any domain name that does not list you as the registered owner;

use or permit the use of the Software or the output generated by the Software, or any part thereof, in or in association with any website that is not registered as an affiliate in good standing with Amazon, or where permitted by this Agreement, as a seller in good standing with Amazon's Marketplace Program;

use or permit the use of the Software or the output generated by the Software, or any part thereof, in or in association with fraudulent, pornographic, sexually explicit, defamatory, violent, immoral, infringing or illegal material;

use or copy the Software, or any part thereof, and/or Documentation except as permitted by the terms of the License;

use or permit the use of the Software, or any part thereof, as a trademark or service mark, or claim any proprietary rights of any sort in the Software or the output generated by the Software, or any part thereof;

sell, sublicense, distribute or otherwise grant rights or make available for use by others all or a portion of the Software or the output generated by the Software;

make some or all of the Software file(s) available on your web page as a separate or downloadable reusable file;

alter, merge, modify, adapt, de-compile or reverse engineer the Software in any way; remove, obscure or alter any of CusCom's copyright or other proprietary rights notices;

in any way alter or prevent the inclusion of the Developer's Token (as defined below) in any link generated by the Software; and

loan, rent, lease or license this Software or any copy.

2. Responsibility for Your Website

(a) You will be solely responsible for the development, operation, and maintenance of your website and for all materials that appear on your website. For example, you will be solely responsible for:

the technical operation of your website and all related equipment;

ensuring that your server meets the technical requirements for the operation of the Software;

installation of the Software on your server; and

inserting into the HTML pages on your website, the appropriate markup codes (including HTML and <script> tags as required) for the Software to operate all in accordance with the instructions for use of the Software as provided by CusCom from time to time.

(b) You will be solely responsible to comply with the agreement that you have with Amazon permitting you to be a affiliate of Amazon's Associates Program or permitting you to be a seller with Amazon's Marketplace Program, as the case may be.

(c) In order to use the Software, you must:

be an registered as an affiliate in good standing with Amazon's Associates Program, or be registered in good standing with Amazon as a seller with Amazon's Marketplace Program;

obtain and install a valid Script Key from CusCom; and

install and operate the most recent version of the Software in accordance with the operating instructions provided by CusCom and as may be amended or updated from time to time.

3. Representations, Warranties and Acknowledgments

(a) We represent and warrant to you:

(i) when the Software is used by you as an affiliate of Amazon's Associates Program, all links on your website that are generated by the Software that lead to the Amazon website will contain only your Amazon associate-id that as assigned by Amazon to you, provided that: (1) you have obtained and installed a corresponding valid key file (the "Script Key") as obtained from CusCom at the time of registering the Software with CusCom, and (2) you have installed and are using the Software in accordance with the instructions for use of the Software as provided by CusCom; and

(ii) there is no fee payable by you to CusCom to obtain a Script Key or to use the Software.

(b) You represent and warrant to us:

if you intend to use the Software for affiliate sales through Amazon's Associates Program, you are currently and at all times while using the Software an affiliate in good standing with Amazon. For greater certainty, the term "affiliate" as used in this Agreement has the same meaning as "associate" as that term is used by Amazon; and

if you intend to use the Software to display your products and services as a seller of the Amazon Marketplace, you are registered in good standing as a seller with Amazon's Marketplace Program.

(c) You acknowledge that:

the commission rate for sales made by you through Amazon's Associates Program is determined by the operating agreement between you and Amazon and does not involve CusCom and the payment of commissions earned by you for such sales is the responsibility of Amazon and not CusCom;

the Software operates by utilizing the services supported by the Amazon Web Services system as supplied by Amazon except that: (i) some functions supported by the Software do not use the Amazon Web Services system and may be discontinued in any new version of the Software; and (ii) the Software may not support all functions supported by the Amazon Web Services system;

the output generated by the Software is obtained from data provided directly by Amazon through its Amazon Web Services;

Amazon, without notice, may alter the format, functionality, conditions of use, or availability of the Amazon website or the Amazon Web Services system which may render the Software or portions of it inoperable or unable to perform its function;

Affiliate marketing on the internet is a competitive undertaking and involves many other affiliates competing for the same business and/or offering the same products or services for sale, and also involves other factors that are constantly changing and/or are difficult to determine and as such use of the Software does not guarantee that any affiliate sales will be generated for the Licensee;

the Software operates on the Licensee's server and may result in an increased load on such server while the Software is functioning;

the Software retrieves data from the Amazon website using the Licensee's server which results in additional data traffic at the Licensee's server where the Software is installed;

the Licensee shall be responsible for any cost of data traffic on the Licensee's server that results from the use of this Software that may be charged by the Licensee's Internet Service Provider.

CusCom is not connected or associated with Amazon, except as follows:

CusCom is also an affiliate of Amazon and operates its own separate websites;

the Software and all links generated by the Software contain a developer's token that was issued by Amazon to CusCom and is required by Amazon for the Software to use the Amazon Web Services for tracking or other use by Amazon; and

nothing in this Agreement restricts Amazon from separately compensating us for granting to you this License and/or for any sale(s) through Amazon that results from your use of the Software; and you consent to the foregoing compensation provided that any compensation arrangement between us and Amazon does not reduce the commission rate for commissions payable to you from Amazon for sales made by you when compared to the commission rate for commissions payable to you from Amazon for sales made by you without the use of the Software. For greater certainty, unless otherwise indicated in the operating agreement between you and Amazon, the foregoing does not in any way reduce the commission rate paid to you by Amazon when using the Software.

3. Restrictions on Use and Term of the License

(a) You may transfer the Software to another party provided (i) you transfer the Software and all documentation and media and (ii) you do not retain any copies and (iii) you notify CusCom by e-mail that you have done so and (iv) the other party agrees to accept the terms and conditions of this agreement.

(b) The License granted to you by this Agreement will begin upon you obtaining the Software and continues until terminated by either party. Either you or we may terminate the License at any time, with or without cause, by giving the other party written notice of termination (and for greater certainty, notice may be given by e-mail). You may also terminate the License at any time by deleting or otherwise destroying all copies of the Software and Documentation and by ceasing to use the Software. CusCom may also terminate the License at any time and without notice if you violate any part of this Agreement or as otherwise provided in this Agreement. This License shall automatically terminate if you are not or are no longer an affiliate of Amazon's Associates Program or if your Script Key expires, except as otherwise provided in section 7(a)(ii) of this Agreement.

(c) In the event of termination of this License for whatever reason you must immediately cease using the Software and destroy all copies of the Software and the Documentation.

(d) Notwithstanding any other provision in this Agreement, section 4 of this Agreement shall survive the termination of this Agreement of termination of the License for any reason.

4. Limitation of Warranties & Liability

(a) The Software is provided "as is" and since the Software relies open the availability of Amazon Web Services, the Software's operation is provided "as available". CusCom makes no warranty or representation, promise or guarantee, express or implied with respect to this Software or Documentation or the output generated by the Software including without limitation non-infringement of third party rights (such as copyright, trademark, privacy rights), quality or accuracy of output, performance, functionality, merchantability or fitness for a particular purpose. Without limiting the generality of the foregoing, CusCom does not and cannot warrant the performance or results that you may obtain by using the Software or Documentation.

(b) You assume the entire risk as to the quality and performance of the Software. In developing this Software, CusCom has attempted to ensure that the Software performs its function when it is used in accordance with the instructions provided in the Documentation. Nonetheless, errors can occur and/or Amazon may alter its website(s) or the Amazon Web Services system so as to render the Software unable to perform its function. In the event that the Software is not able to perform its function for whatever reason, CusCom may immediately terminate this License without any further obligation to you. CusCom does not warrant that the Software is free from bugs, errors or other application limitations.

(c) In no event shall CusCom be liable for any indirect, special, incidental, punitive, economic, or consequential damages (or any loss of revenue, profits, or data), arising in connection with this Agreement or arising out of the use of or inability to use the Software or Documentation, even if we have been advised of the possibility of such damages. In the event any liability is imposed on CusCom, the aggregate liability of CusCom to you or any third party shall not exceed the purchase price or any other fee, if any, that you paid CusCom for the Software and Documentation within the preceding six months from the time a legal proceeding is instituted by the Licensee against CusCom.

(d) You hereby agree to indemnify and hold harmless us and our directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable lawyers' fees) (any or all of the foregoing referred to as "Damages") insofar as such Damages arise out of or are based upon: (i) any claim that the output generated by the Software infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site, including, without limitation, content therein not attributable to the use of the Software.

(e) THE LIMITATIONS, EXCLUSIONS AND INDEMNITY IN THIS SECTION 4 SHALL (i) APPLY IRRESPECTIVE OF THE CAUSE OF ACTION INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, BREACH OF A FUNDAMENTAL CONDITION OR TERM, FUNDAMENTAL BREACH, OR ANY OTHER LEGAL THEORY; AND (ii) SURVIVE A FUNDAMENTAL BREACH.

(f) CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

5. Notice of Copyright, and Trademarks

(a) All trademarks and registered trademarks are the property of their respective owners. You acknowledge that the results generated by the Software contain third party material (the "Third Party Material") provided by Amazon that is subject to intellectual property right restrictions as described in the associates program agreement between You and Amazon and for greater certainty, nothing in this Agreement grants you any intellectual property rights in the Third Party Material.

(b) The Software is copyrighted and owned by CusCom, and its structure, organization and code are the valuable trade secrets of CusCom. The Software is also protected by Canadian Copyright law and International Treaty Provisions. All rights are reserved by CusCom. Copying, duplicating, selling or otherwise distributing any part of the Software without the prior written consent of CusCom is prohibited. You may not reverse engineer, decompile, unlock, decode, or otherwise alter the Software or the links generated by the Software.

6. International Amazon Support

The Software is designed to work Amazon.com. If Amazon adds support for one of its international websites (including amazon.co.uk, amazon.ca, amazon.fr, amazon.de) through its Amazon Web Services systems and where CusCom upgrades the Software to support such international site, then this Agreement shall be deemed to include such international site(s) and reference to Amazon shall be amended accordingly to refer to such international website of Amazon. For greater certainty, and without limiting the generality of the foregoing, CusCom is not required to make its Software compatible with any of Amazon's international websites and you cannot use the Software with any particular Amazon website unless you are an affiliate in good standing with that particular Amazon website.

7. Sellers who use Amazon Marketplace

(a) The Software may support certain functions available to sellers who sell their products or services as a seller with Amazon's Marketplace Program. If the Software is used by you to display on your website your own products or services as a seller using Amazon's Marketplace Program, the following additional terms shall also apply to you:

(i) you represent and warrant that at all times that you are using the Software, you are registered in good standing with Amazon as a seller with Amazon's Marketplace Program;

(ii) unless you are also concurrently registered as an associate with Amazon's Associates Program, the License will automatically terminate if you are no longer a seller with Amazon's Marketplace Program or your Script Key expires; and

(iii) unless you are also concurrently registered as an associate with Amazon's Associates Program, the associate-id referred to in section 2(a)(i) of this Agreement shall be the associate-id of CusCom.

8. Independent Investigation

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.

9. Arbitration

Any dispute relating in any way to this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement or your relationship with us shall be submitted to confidential arbitration in Toronto Canada, except that, to the extent you have in any manner violated or threatened to violate our rights under this Agreement, we may seek injunctive or other appropriate relief in any provincial or federal court in the province of Ontario (and you consent to non-exclusive jurisdiction and venue in such courts) or any other court of competent jurisdiction. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.

10. Modification

CusCom may modify any of the terms and conditions contained in this Agreement, at any time and in CusCom's sole discretion, by posting a change notice or a new agreement on CusCom's website for the Software. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued use of the Software following our posting of a change notice or new agreement on our site will constitute binding acceptance of the change.

11. Relationship of the Parties

The relationship between you and CusCom shall be as independent contractors, and nothing in this Agreement shall create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will not make any statement, whether on your website or otherwise, that reasonably would contradict anything in this paragraph.

12. Other Provisions

(a) This License will be governed by the provincial laws of the Province of Ontario and the federal laws of Canada excluding the application of its conflicts of law rules. This License will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

(b) You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by Canada or any other export laws, restrictions or regulations.

(c) This License constitutes the entire agreement between you and CusCom. There are no warranties, representations or other agreements between you and CusCom in connection with the subject matter of this License, except as indicated herein. No representation or warranty not set forth herein has been made or relied upon by you as an inducement to the entering into this License.

(d) All communication with you from officials of CusCom shall be deemed to be from CusCom.

(e) The headings used in these License are for convenience only and shall not affect the interpretation.

(f) The rights and remedies conferred upon CusCom under this License shall not be deemed exclusive but shall be cumulative and in addition to all other rights and remedies of CusCom existing at law or in equity. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.

(g) If any provision in this License is determined to be void, invalid, or unenforceable, in whole or in part, by a Court of competent jurisdiction for any reason, it shall not be deemed to affect or impair the validity or enforceability of any other provision of this License and such unenforceable provision or part thereof as the case may be shall be treated as severable from this License.

(h) You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.