Terms and Conditions

Midnight Oil Systems LLC dba AdaptPOS Service Agreement

TERMS AND CONDITIONS

DEFINITIONS.

CONFIDENTIAL INFORMATION:

LICENSOR CONFIDENTIAL INFORMATION: Confidential and/or proprietary information relating to the Midnight Oil Systems LLC dba AdaptPOS, research, development, products, processes, trade secrets, business plans, customers, finances, and personnel data related to the business of Licensor. Licensor Confidential Information does not include any information (i) which LICENSEE knew before Licensor disclosed it to LICENSEE; (ii) which has become publicly known through no wrongful act of LICENSEE; (iii) which LICENSEE developed independently, as evidenced by appropriate documentation; (iv) which is disclosed to LICENSEE by a third party without restriction of confidentiality; or (v) the disclosure of which is required by law.

LICENSEE CONFIDENTIAL INFORMATION: Confidential and/or proprietary information relating to the research, development, products, processes, trade secrets, business plans, customers, finances, and personnel data related to the business of LICENSEE. LICENSEE Confidential Information does not include any information (i) which Licensor knew before LICENSEE disclosed it to Licensor; (ii) which has become publicly known through no wrongful act of Licensor (iii) which Licensor developed independently, as evidenced by appropriate documentation;

(iv) which is disclosed to Licensor by a third party without restriction of confidentiality; or (v) the disclosure of which is required by law.

LICENSOR DOCUMENTATION

Any and all manuals, user guides, product specifications and other documentation, owned by or licensed to Licensor, relating or referring to Midnight Oil Systems LLC dba AdaptPOS.

LICENSOR RIGHTS

Any and all Intellectual Property Rights and Derivatives, of Licensor in and to the Licensor Copyrights, Licensor Documentation, Licensor Marks, Licensor Patents and/or Licensor Technology.

MIDNIGHT OIL SYSTEMS LLC DBA ADAPTPOS

Licensor’s proprietary Professional Service Management software and hardware designed for the restaurant industry.

INTELLECTUAL PROPERTY RIGHTS

Any and all proprietary, common law, and/or statutory intellectual property rights, including but not limited to, patentable materials and patent rights, copyrightable materials and copyrights, moral rights, trade secret rights, trademark rights, service mark rights, and/or any and all other proprietary rights, including all Derivatives.

GRANT

Licensor hereby grants Licensee a non­exclusive, non­transferable license to use Midnight Oil Systems LLC dba AdaptPOSâ and any modifications to Midnight Oil Systems LLC dba AdaptPOS provided pursuant to the terms for an initial term as specified in provided quote. In the absence of 30 days prior written notice, this agreement will automatically renew for successive terms of one month.

CONSULTING AND TRAINING SERVICES

Licensor may provide integration, onsite assistance, and/or data formatting/exporting consulting services and training services under the terms of this Agreement. With the exception of such consulting services as are bundled with the License conveyed hereunder, such consulting and training services shall be billed in accordance with the pricing and terms outlined in Schedule A, unless the parties expressly agree otherwise in writing. Such consulting services shall be provided in accord with the Warranties as more expressly described in this Agreement.

SECURITY OF CARDHOLDER DATA

Midnight Oil Systems LLC dba AdaptPOS acknowledges that it is responsible for the security of cardholder data. Midnight Oil Systems LLC dba AdaptPOS possesses or otherwise stores, processes, or transmits data on behalf of the customer.

QUALITY OF SERVICE

Licensor shall use reasonable efforts to ensure that the Licensor’s server or servers have sufficient capacity and rate of connectivity to provide the Licensee and its Authorized Users with a quality of service comparable to current standards in the on­line information provision industry in the Licensee’s locale. Licensor shall use reasonable efforts to provide continuous service with an average of 95% up­time per month. The 5% down­time includes periodic unavailability due to maintenance of the server(s), the installation or testing of software, the loading of additional Licensed Materials as they become available, and downtime related to the failure of equipment or services outside the control of Licensor, including but not limited to public or private telecommunications services or internet nodes or facilities. Scheduled down­time will be performed at a time to minimize inconvenience to Licensee and its Authorized Users.

PRICES AND PAYMENT

Prices and payment terms are stated in the quote and are guaranteed for the Term stated in the quote. In addition, Licensor is responsible for applicable taxes, tariffs, telecommunications surcharges or other governmental charges due on account of the services provided by Licensor related to Midnight Oil Systems LLC dba AdaptPOSâ.

LICENSOR’S RESPONSIBILITY

Licensor is responsible for providing Midnight Oil Systems LLC dba AdaptPOS and the services specified in the Schedules by qualified personnel (selected by licensor at its sole discretion) in a professional manner. Midnight Oil Systems LLC dba AdaptPOS software may be modified or revised by licensor from time to time. Licensor warrants Midnight Oil Systems LLC dba AdaptPOS as outlined below and will provide the following services: Hosting, maintenance, and continuous operation of the Midnight Oil Systems LLC dba AdaptPOS application delivered as an ASP.

LICENSEE’S RESPONSIBILITIES

Licensee is responsible for the manner in which Licensee uses Midnight Oil Systems LLC dba AdaptPOS, including the maintenance and security of Licensee’s computer network and other facilities, and its maintenance of all equipment and software which is not licensed and/or provided by Licensor hereunder. Unless expressly permitted by a Schedule or separate reseller agreement with Licensor, Licensee shall not resell Midnight Oil Systems LLC dba AdaptPOS, or permit access to Midnight Oil Systems LLC dba AdaptPOS, directly or indirectly to third parties.

OWNERSHIP

The Parties will retain ownership of their respective software rights, trade secrets, patents, content and marks. The Licensor Software and the related documentation are owned by Licensor and are protected by a combination of patent, trademark, trade secret and/or copyright laws and international treaty provisions, as applicable. Licensee agrees that Licensor retains all right, title, and interest in the Licensor Software and in all of Licensor’s patents, trademarks, trade names, inventions, copyrights, know­how, and trade secrets relating to the design, manufacture, operation or service of the Licensor Software. The Licensee will not use the Licensor Software for any purpose other than for use on the Licensee’s own internal computer system for purposes of this Agreement. The use by Licensee of any of Licensor’s proprietary material is authorized only for the purposes herein set forth, and upon termination of this Agreement such authorization shall cease. Licensee shall ensure all proprietary rights notices on Licensor Software are reproduced and applied to any copies. Licensee may not modify, decompile, disassemble, decrypt, extract, or otherwise reverse engineer Licensor Software, or create derivative works based upon all or part of Licensor Software.

No licenses are granted to any of the foregoing except as expressly set forth in this Agreement. All data generated by the Licensee through the use of Midnight Oil Systems LLC dba AdaptPOS including candidate information and communications are the sole property of the Licensee and will be treated in accordance with mutually agreed upon privacy standards consistent with generally accepted industry guidelines.

CONFIDENTIALITY

LICENSOR CONFIDENTIAL INFORMATION Licensee agrees it will not disclose Licensor Software or the ideas, techniques and concepts therein to any third party without the prior written consent of Licensor. Licensee will maintain the confidentiality of Licensor Software using at least as great a degree of care as Licensee uses to maintain the confidentiality of Licensee’s own similar confidential information. Licensee agrees to instruct Licensee’s employees, including any and all end ­users of Licensor Software pursuant to this Agreement, of Licensee’s confidentiality obligations. Licensee’s obligation as to the confidentiality of Licensor Software shall survive termination of this Agreement.

LICENSEE CONFIDENTIAL INFORMATION

Licensor agrees it will not disclose information relating to the research, development, products, processes, trade secrets, business plans, customers, finances, and personnel data related to the business of LICENSEE to any third party without the prior written consent of Licensee. Licensor will maintain the confidentiality of Licensee Confidential Information using at least as great a degree of care as Licensor uses to maintain the confidentiality of Licensor’s own confidential information. Licensor agrees to instruct Licensor’s employees of Licensor’s confidentiality obligations. Licensor’s obligation as to the confidentiality of Licensee Confidential Information shall survive termination of this Agreement.

USE

Licensee represents and warrants that Licensee’s possession, use, and operation of the Products are solely for internal use by and for the Licensee. Specifically, Licensee agrees not to use Midnight Oil Systems LLC dba AdaptPOS to send mass mailings to entities other than those with whom the licensee has a business relationship. Licensee also agrees not to use Midnight Oil Systems LLC dba AdaptPOS to communicate any content that is harassing, libelous, threatening, obscene, would intentionally violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation.

ACKNOWLEDGEMENTS

Either Party may make any press release or public announcement relating to the terms and provisions of this Agreement with the other Party’s prior written consent. Notwithstanding the foregoing, Licensor may during the term of this Agreement without requirement of consent (i) describe licensee in a press release as a customer (ii) list Licensee on Licensor’s Web sites as a customer. Licensee further agrees that Licensor may during the term of this Agreement without requirement of consent, include Licensee’s name in any listing of Licensor’s customers and marketing materials.

TERMINATION

Termination for Cause. If either Party fails to perform any of its obligations or duties hereunder and shall fail to remedy same within thirty (30) days of notice thereof, the non-­breaching Party may, by written notice to the breaching Party, immediately terminate this Agreement, or so much of it as is affected by such failure. If Licensee fails to make payment of any undisputed fees due to Licensor or to perform any of its other obligations or duties hereunder and shall fail to remedy same within thirty (30) days of receipt of written notice thereof from Licensor, the Licensor may, by written notice to the Licensee, immediately terminate this Agreement, or so much of it as is affected by such failure. In the event of any such termination by Licensor, Licensee shall remain liable for the full amount of the fees which were due and owing to the Licensor as of the date of such termination. In the event of such termination, Licensor will be entitled to discontinue the service not sooner than ten (10) days after Licensee’s receipt of such written notice of termination.

INDEMNIFICATION

Indemnification by Licensor

Licensor shall indemnify and hold harmless Licensee from and against any claims, including reasonable legal fees and expenses, based upon infringement of any United States copyright or patent by the Software. Licensee agrees to notify Licensor of any such claim promptly in writing and to allow Licensor to control the proceedings. Licensee agrees to cooperate fully with Licensor during such proceedings. Licensor shall defend and settle at its sole expense all proceedings arising out of the foregoing. In the event of such infringement, Licensor may replace, in whole or in part, the Software with a substantially compatible and functionally equivalent computer program or modify the Software to avoid infringement.

Indemnification by Licensee

Licensee shall indemnify and hold harmless Licensor, its officers, employees and affiliates (each an ‘Indemnitee’) against any liability, damage, loss or expense (including reasonable attorney’s fees and any expenses of litigation) incurred by or imposed upon any Indemnitee in connection with any claims, suits, actions, demands or judgments arising out of or resulting from (a) any breach or failure by Licensee in the performance of its obligations under this Agreement, (b) any claim of infringement or violation of a copyright, trade secret or other proprietary right of any third party by licensee. Licensee shall defend and settle at its sole expense all proceedings arising out of the foregoing.

WARRANTIES

Licensor warrants that it has the full right and title to grant the license rights granted herein with respect to Midnight Oil Systems LLC dba AdaptPOS and that the execution, delivery and performance of this Agreement will not violate rights granted by Licensor to any third party or violate the provisions of any agreement to which Licensor is a party or violate any applicable law or regulation. LICENSOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR MAKES NO WARRANTY OR REPRESENTATION REGARDING LICENSOR’S SERVICES, ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH LICENSOR’S SERVICES OR THAT LICENSOR’S SERVICES WILL MEET LICENSEE’S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR OR DEFECT.USE MIDNIGHT OIL SYSTEMS LLC DBA ADAPTPOS AT LICENSEE’S SOLE RISK. LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO LICENSEE RESULTING FROM THE USE OF MIDNIGHT OIL SYSTEMS LLC DBA ADAPTPOS.

LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE AGGREGATE LIABILITY OF LICENSOR, IF ANY, FOR ALL DISPUTES RELATING TO THIS AGREEMENT SHALL BE LIMITED TO AMOUNTS ACTUALLY PAID BY LICENSEE TO LICENSOR.IN NO EVENT SHALL EITHER PARTY HERETO BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) OF ANY KIND ARISING FROM ANY BREACH OR TERMINATION OF THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.

GENERAL

ASSIGNMENT. Licensee may not assign or delegate its rights or obligations under this Agreement either in whole or in part, without the prior written consent of Licensor.

CONSTRUCTION AND COMPLETE AGREEMENT. This Agreement will be interpreted fairly in accordance with its terms, without any strict construction in favor of or against either party and in accordance with the laws of the State of Florida. This Agreement, including all Attachments, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by an authorized representative of each party.

ARBITRATION. Any dispute arising under this Agreement or the termination of this Agreement may be submitted by either party to arbitration in Boca Raton, Florida under the commercial rules of the American Arbitration Association before a single arbitrator. Any award will be enforceable in any court of competent jurisdiction and will not be inconsistent with the terms of this agreement. The non­prevailing Party in any arbitration will be assessed the cost of the prevailing Party’s reasonable attorneys’ fees and expenses.

NOTICE. Any and all written notices required by this Agreement will be in writing and will be deemed to have been that obtain an acknowledgment of receipt of delivery, such as Federal press or certified mail at the address set forth on the signature page.