RAVE MOBILE SAFETY

PRODUCT EVALUATION LICENSE AGREEMENT

This Product Evaluation License Agreement (together with the related Product Evaluation License Order Form entered into by the Parties, the “Agreement”) sets forth the terms and conditions under which Rave Wireless, Inc. d/b/a Rave Mobile Safety (“Rave”) agrees to grant to Licensee (as defined below) a limited license to evaluate Rave’s proprietary application software product(s) (and any related Documentation) specified in such Product Evaluation License Order Form (collectively, “Products”).  By executing the Rave Product Evaluation License Order Form that incorporates this Agreement by reference therein or to which this Agreement is otherwise attached as an exhibit thereto (“Order Form”), Licensee agrees to all of the terms and conditions of this Agreement as of the “Effective Date” of the Order Form specified therein with respect to the Products covered under such Order Form.  Each of Rave and Licensee shall also be referred to individually as a “Party” and collectively as the “Parties”.  Any other capitalized terms used in this Agreement shall have the meanings assigned to them in Section 10 hereof and throughout this Agreement.

1.  PRODUCT EVALUATION

1.1 Limited License.  Subject to the terms and conditions of this Agreement, Rave hereby grants to Licensee a limited, non-exclusive, non-transferable, non-sublicenseable right and license only during the Term of this Agreement to access and use the features and functions of the Products solely in furtherance of Licensee’s internal evaluation of such Products in accordance with the “Authorized Use” as specified in the Order Form and for no other purpose (“Evaluation”).  Licensee acknowledges that Rave and its licensors own all right, title, and interest, including all patent, copyright, trade secret, trademark, moral rights, and other intellectual property rights in and to the Products (and any and all derivative works thereof), and Rave expressly reserves all rights not expressly granted to Licensee hereunder.  Licensee further acknowledges and agrees that all fixes, enhancements and modifications to the Products conceived of or made by or on behalf of Rave that are based, either in whole or in part, on Licensee’s feedback, suggestions, or recommendations are the exclusive property of Rave and all right, title and interest in and to such fixes, enhancements and modifications to the Products (and any and all intellectual property rights therein) will vest solely in Rave.

1.2  Product Restrictions.  Licensee shall not, and shall not allow any third party to, copy, modify, adapt, translate, publicly display, publish, create derivative works of or distribute the Products.  Licensee will not use the Products for any purposes beyond the scope of or otherwise not in accordance with the limited license granted in Section 1.1 above.  Without limiting the foregoing, Licensee will not (i) authorize or permit use of the Products by or for persons other than Administrators; (ii) assign, sublicense, sell, lease or otherwise transfer or convey the limited license granted hereunder; (iii) modify or create any derivative works of the Products (or any component thereof); (iv) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Products is compiled or interpreted; or (v) use the Products or any Confidential Information of Rave to help develop or enhance any product or service that may compete with any Rave product or service or otherwise for the benefit of any third party (including, without limitation, any affiliate or other related party).  Licensee hereby acknowledges that nothing in this Agreement shall be construed to grant Licensee any right to obtain or use source code or any derivative works thereof. Licensee shall duplicate all proprietary notices and legends of Rave upon any and all copies of the Products authorized to be made by Licensee and shall not remove, alter or obscure any such proprietary notice or legend.  

1.  TERM AND TERMINATION

2.1  Term.  The term of this Agreement will commence on the Effective Date and continue in effect until the earliest of: (a) the expiration of the “Evaluation Period” specified in the Order Form; (b) the Parties entering into Rave’s Master License and Services Agreement which supercedes this Agreement; (c) either Party giving written notice of termination to the other Party; or (d) Licensee’s failure to comply with any term or condition herein (“Term”).  Neither Party will be liable to the other Party for any termination of this Agreement.

2.2  Effect of Termination.  Upon any termination or expiration of this Agreement, each Party shall (i) immediately discontinue all use of the other Party’s Confidential Information and, in the case of the Licensee, the Products; and (ii) return to the other Party or, at the other Party’s option, destroy, all originals and all copies of such other Party’s Confidential Information then in its possession. Termination or expiration of this Agreement will automatically terminate the limited license granted hereunder.    

2.3 Survival of Obligations.  The provisions of this Agreement that, by their nature, are intended to survive a termination or expiration of this Agreement, including without limitation the provisions of Sections 1.2, 2.2, 2.3, 5, 6, 7, 8, 9 and 10 hereof, shall survive termination or expiration of this Agreement.

1.  NO SUPPORT OR PROFESSIONAL SERVICES

Rave will not be obligated to provide any technical support, maintenance, updates, upgrades or any other professional services to Licensee for the Products licensed under this Agreement.  

1.  FEES AND PAYMENTS

Except as otherwise expressly provided in the Order Form, there will be no fees payable by Licensee for the limited license granted to Licensee under this Agreement.  Each Party shall be responsible for its own expenses incurred in connection with this Agreement and the Evaluation.  Notwithstanding the foregoing, Licensee will be responsible for any applicable sales, use and other taxes arising from the grant of the limited license under this Agreement.  

1.  LICENSEE OBLIGATIONS  

5.1 Licensee Operation.  Licensee acknowledges and agrees that (i) Licensee is solely responsible for the operation and use of the Products in accordance with the Documentation, including the related training and supervision of Administrators, and (ii) in no event shall Rave have any liability relating to Licensee’s operation and use of the Products and/or otherwise arising out of or in connection with the Evaluation.  

5.2  Licensee Compliance.  Licensee shall use the Products and conduct the Evaluation in compliance with all applicable laws, statutes, regulations, ordinances, rules or other requirements promulgated by governing authorities or otherwise imposed by Third Party Service Providers having jurisdiction over the Parties or the operation or use of the Products, including without limitation any contract provisions prohibiting Licensee from utilizing the Products to deliver to any Third Party Service Provider for transmission or dissemination material that violates any content restrictions set forth therein.  In any event, Licensee shall not (i) deliver to Third Party Service Providers for transmission or disseminate any content or material under this Agreement that (a) is harassing, defamatory, libelous, abusive, threatening, obscene, coercive or objectionable, including material that is false, misleading or inaccurate or (b) violates the rights of any person or company protected by copyright, trademark, trade secret, patent or other intellectual property or similar laws or regulations; (ii) use the Products or Rave’s systems to transmit or disseminate unsolicited material, including without limitation "junk mail" or "unsolicited bulk e-mail", or other advertising material to persons or entities that have not specifically agreed to receive such material by either opting in or not opting out in a lawful manner; (iii) send messages to individuals who have opted out of receiving messages from Licensee; or (iv) use the Products or Rave systems to introduce malicious programs into the Products, Rave’s systems, or the Third Party Service Providers’ networks or servers, including viruses, worms, Trojan horses, e-mail bombs, cancelbots or other computer programming routines that are intended to damage, interfere with, intercept or expropriate any system, data or personal information, including executing any form of network monitoring that will intercept or extract data.    Under no circumstances shall Licensee be authorized to make any representations, warrantees or guarantees with respect to the Products or Rave’s related services.  

5.3  Licensee Content.  If Licensee provides or otherwise makes available any information or any other data collected by Licensee or a third party regarding End Users to Rave or any Third Party Service Provider or Emergency Service Provider in connection with the Evaluation of the Products (collectively, the “Licensee Content”), Licensee represents and warrants that Licensee has any and all legal rights in and to such Licensee Content, in order to use and disclose, and permit use and disclosure of, the Licensee Content in connection with the operation and use of the Products as contemplated by the Documentation and authorized under this Agreement.    

1.  WARRANTY DISCLAIMER AND LIMITATIONS

6.1 Warranty Disclaimer.  THE PRODUCTS AND RAVE’S CONFIDENTIAL INFORMATION ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS AND, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, RAVE EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, RELATING TO THE PRODUCTS AND ITS CONFIDENTIAL INFORMATION, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, DATA ACCURACY, SATISFACTORY QUALITY, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT.  NO WARRANTY IS MADE BY RAVE ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE.  Rave does not warrant that the Products will meet Licensee’s requirements, that the operation thereof will be uninterrupted or error-free, or that all errors will be corrected.  Without limiting the foregoing, Licensee acknowledges and agrees that (i) Rave cannot guarantee the performance of any Third Party Service Provider or Emergency Service Provider and that neither Party may make any claims or guarantees on behalf of Third Party Service Providers or Emergency Service Providers regarding any matters, (ii) delivery of any messages or any information regarding End Users in connection with the operation or use of the Products is not guaranteed and neither Rave nor any Third Party Service Provider or Emergency Service Provider shall be responsible for any failure of delivery, and (iii) Rave shall not be responsible for any disruption to or failure of the Products resulting from the actions or inactions of any Third Party Service Providers or Emergency Service Providers.   Licensee acknowledges and agrees that the Products are not intended to replace the services of primary safety and emergency response services, including without limitation, 911 or equivalent, fire, police, emergency medical and public health services (collectively, “Emergency Service Providers”).

6.2  Limitation of Liability.  IN NO EVENT SHALL RAVE OR ANY RAVE REPRESENTATIVE BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF RAVE OR SUCH RAVE REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.  Notwithstanding anything herein to the contrary, the cumulative liability of Rave to Licensee and any third party for all claims arising from or relating to this Agreement and/or the operation or use of the Products shall not exceed the greater of the total amount of all fees actually paid to Rave by Licensee under this Agreement and $100, regardless of whether any action or claim is based on warranty, indemnification, contract, tort, negligence, strict liability or otherwise. The existence of multiple claims will not enlarge this limit.  The warranty disclaimers and exclusions and limitations of liability in this Section 6 are intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective and form an essential basis of the bargain between the Parties. Absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different.

1.  CONFIDENTIALITY

7.1  Mutual Confidentiality Obligations.  Each Party agrees: (i) to use the Confidential Information of the other Party only for the purposes of this Agreement; (ii) to hold in confidence and protect the Confidential Information of the other Party from dissemination to, and use by, any third party (including, without limitation, any affiliate or other related party) with at least the same degree of care as it exercises to protect its own highly confidential information of like character, but in no event less than reasonable care; (iii) not to create any derivative work from Confidential Information of the other Party; (iv) to restrict access to the Confidential Information to such of its personnel who have a need to have access solely in furtherance of the Evaluation and who have been advised of and have agreed in writing or are otherwise required to treat such information as confidential; and (v) to return or destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement.  Without limiting the foregoing, Licensee shall not use any Confidential Information of Rave except solely in furtherance of the Evaluation.  In addition, neither Party may use the other Party’s name in any publication, advertisement or announcement, without the other’s prior written consent.

7.2  Confidentiality Exceptions.  The foregoing restrictions shall not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient without use of reference to the disclosing Party’s Confidential Information; (vi) is approved for release or disclosure by the disclosing Party without restriction; or (vii) is required to be publicly disclosed by the recipient pursuant to applicable freedom of information laws.  Specific information shall not be deemed to be within the foregoing exceptions merely because it is embraced by more general information in the public domain or by more general information in the possession of the recipient.  Each Party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure shall first have given written notice to the other Party (if permitted) and made a reasonable effort to obtain a protective order; or (b) to establish a Party’s rights under this Agreement, including to make court filings.

7.3 Disclosure of Information about End Users.  Rave shall not rent, trade or sell information regarding End Users (including, but not limited to, any Licensee Content) to any third party; provided, however, that notwithstanding anything to the contrary contained in this Agreement, (i) Rave may disclose any such information to Third Party Service Providers and Emergency Service Providers in connection with the operation and use of the Products or as necessary to comply with applicable laws and governmental orders and (ii) under no circumstances shall Rave or any Rave Representative be liable for the failure of Licensee or any third party (including, but not limited to, any Third Party Service Provider or Emergency Service Provider) to comply with its own privacy policies and all applicable privacy laws and regulations.

7.4 No Intellectual Property Rights.  Notwithstanding anything in this Agreement to the contrary, Licensee will not obtain any license or other interest in, or intellectual property right to, any Confidential Information of Rave or the subjects thereof, including, without limitation, any patent, patent application, copyright, trade secret, trademark, moral right and other intellectual or proprietary right now or hereafter controlled by Rave.  Rave retains all rights and remedies afforded under all U.S. and foreign laws which are designated to protect proprietary, confidential and/or trade secret information.

1.  INDEMNIFICATION

To the extent permitted by law, Licensee shall defend, indemnify, and hold Rave and each Rave Representative harmless against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities arising out of any claim against Rave and/or such Rave Representative by a third party (including without limitation any End User, Third Party Service Provider or governmental agency) related to the operation or use of the Products or otherwise in connection with the Evaluation, provided that Rave gives Licensee (i) prompt written notice of such claim; (ii) sole authority to control and direct the defense and/or settlement of such claim; and (iii) such information and assistance as Licensee may reasonably request, at Licensee’s expense, in connection with such defense and/or settlement.   

1.  MISCELLANEOUS

9.1  Applicable Law/Dispute Resolution.  This Agreement and the rights and obligations of the Parties hereunder shall be construed in accordance with, and shall be governed by, the laws of the Commonwealth of Massachusetts without giving effect to its rules regarding conflicts of laws, and except in connection with any action for injunctive or other equitable relief arising from the breach by the other Party of any license, usage or confidentiality obligations hereunder, each Party irrevocably submits to the jurisdiction of the Federal courts located within the Commonwealth of Massachusetts in connection with any and all causes of action between the Parties arising from or in relation to this Agreement.  The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.  

9.2  Products Outside the US.  If Licensee is interested in purchasing Products for delivery outside of the United States, Licensee acknowledges and agrees that, in addition to any restrictions that may be imposed on Licensee by any Third Party Service Provider, any such territory outside the United States may impose its own restrictions resulting from applicable law, telecommunication or internet infrastructure limitations, telecommunication or internet service provider policies, or communication device customizations that inhibit or prevent the delivery of SMS, text or other messaging, or restrict the ability to place or receive certain calls (e.g., outbound toll-free calls).  Such restrictions may impede certain aspects of the Products.  Rave shall not be responsible for any such impediments or any unavailability of the Products as a result thereof.

9.3 Force Majeure.  Rave shall be excused from performance of its obligations under this Agreement if such a failure to perform results from compliance with any requirement of applicable law, acts of god, fire, strike, embargo, terrorist attack, war or any other military action, acts of local, state or national governments or public agencies, insurrection or riot or other causes beyond the reasonable control of Rave.  

9.4  Notices.  All notices required by or relating to this Agreement shall be in writing and shall be sent by means of certified mail, postage prepaid or by nationally recognized overnight courier service, to the Parties to the Agreement and addressed, if to Licensee, as set forth in the Order Form, or if to Rave, as follows:

Rave Wireless, Inc.

492 Old Connecticut Path

Framingham, MA  01701

Attention:  Chief Executive Officer

or addressed to such other address as that Party may have given by written notice in accordance with this provision.  All notices required by or relating to this Agreement may also be communicated by facsimile, provided that the sender receives and retains confirmation of successful transmittal to the recipient and sends a duplicate of such notice by the means specified herein.  Such notices shall be effective on the date indicated in such confirmation.

9.5 Assignment.  Licensee may not assign its rights or delegate its obligations under this Agreement without Rave’s prior written consent, and, absent such consent, any purported assignment or delegation shall be null, void and of no effect.

9.6  Independent Contractors.  Licensee and Rave acknowledge and agree that the relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship or franchise between them, and the Parties are acting as independent contractors in making and performing this Agreement. Neither Party has the power or authority as agent, employee or in any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other Party for any purpose whatsoever.

9.7 Amendment/Waiver.  No amendment to this Agreement shall be valid unless in writing and signed by the authorized representatives of the Parties.  No waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought.  Any such waiver shall constitute a waiver only with respect to the specific matter described therein and shall in no way impair the rights of the Party granting such waiver in any other respect or at any other time.  Any delay or forbearance by either Party in exercising any right hereunder shall not be deemed a waiver of that right.

9.8 Severability.  If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision shall be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability.  

9.9  Export Controls.  Licensee will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of any Product to any country for which any export license or approval is required under the laws of the United States or any other country unless the appropriate export license or approval has first been obtained.  

9.10 No Third Party Beneficiaries.  The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties and their respective successors and permitted assigns.  Nothing in this Agreement, whether express or implied, shall confer upon any person or entity, other than the Parties and their permitted successors and assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.  

9.11 U.S. Government Licensees.  Each of the components that constitute each Product is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and/or “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212.  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government licensees acquire the Product with only those rights set forth herein.

9.12  Immunity.  If applicable and to the extent not prohibited or otherwise authorized by applicable law, each Party will be entitled to not less than the same benefits and protections afforded by any law, regulation or other applicable rule which extends protections to the other Party in any form, including, but not limited to, governmental or other immunity, indemnification or other protection.  Neither Party will object to or interfere with the assertion of such immunity by the other Party.

9.13  Headings.  The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this Agreement.

9.14 Signatures.  This Agreement will be deemed to be executed upon the execution by the Parties of the Order Form incorporating this Agreement by reference therein.

9.15 Entire Agreement.  This Product Evaluation License Agreement, together with the related Order Form entered into by the Parties, sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties shall be bound by any conditions, inducements or representations other than as expressly provided for in this Agreement.  Nothing in this Agreement shall imply an agreement or commitment by either Party to sell, license, purchase, acquire, develop or use the products or services of the other Party or otherwise to enter into any definitive agreement with the other Party.  In the event a conflict arises between this Product Evaluation License Agreement and the provisions of any other document comprising part of this Agreement, this Product Evaluation License Agreement will govern.  No term or provision set forth or cross-referenced in any purchase order or payment documentation will be construed to amend, add to, or supersede any provision of this Agreement.

1.  DEFINITIONS

10.1 “Administrators” mean Licensee personnel authorized by Licensee to access and use the Products on behalf and for the benefit of Licensee in connection with the Evaluation.

10.2 “Affiliate” means, with respect to any entity, any other entity Controlling, Controlled by or under common Control with such entity, whether directly or indirectly through one or more intermediaries.

10.3  “Licensee” means the party specifically identified on the Order Form.

10.4  “Confidential Information” means the terms of this Agreement and all documents, material or information relating to the Products and the provision of Rave’s related services in connection with the Evaluation and all other dealings between the Parties, including, but not limited to, the Documentation and all other information that either Party treats as proprietary or confidential.  Without limiting the foregoing, Licensee acknowledges and agrees that any information Licensee learns or discovers regarding the performance of the Products as a result of or otherwise in connection with the Evaluation, including, but not limited to, all notes, analyses, compilations, data studies or other documents prepared by or on behalf of  the Licensee containing or based upon, in whole or in part, any of the foregoing information, as well as the existence or status of, and any other information concerning the Evaluation or business dealings between the Parties, shall also be considered the Confidential Information of Rave.    

10.5 “Control” and its derivatives means legal, beneficial or equitable ownership, directly or indirectly, of more than fifty percent (50%) of the outstanding voting capital stock (or other ownership interest, if not a corporation) of an entity, or actual managerial or operational control over such entity.

10.6 “Documentation” means Rave’s then-current standard product and user guides and/or related documentation generally made available to licensees of Products, as such Documentation may be modified by Rave, in its sole discretion, from time to time.

10.7 “End Users” means those individuals who are associated with Licensee and who have expressly given Licensee their consent to receive and/or send test messages using the Products solely in furtherance of the Evaluation.  

10.8  “Rave Representatives” means Rave and its Affiliates and each of their respective directors, officers, employees, contractors and other representatives.

10.9 “Third Party Service Provider” means a telecommunications, internet, voice broadcasting, voice messaging or other service provider providing mobile telephone, internet or other intermediary services to subscribers that allow or relate to the operation or use of the Products by End Users or a licensor or other third party from whom Rave has received sublicensing rights in connection with the operation or use of the Products, as the case may be.