Terms

(these “Terms & Conditions”)

1. Licence

(a)    Grant of Licence. Subject to and in accordance with these Terms & Conditions, Netsweeper hereby grants to the Client, and the Client hereby accepts, a non-exclusive and non-assignable licence (the “Licence”) to use the software (the “Software”) identified in the purchase order executed and delivered by Netsweeper and the Client (the “Purchase Order”).

(b)    Restrictions on Licence.

(i)      The Client shall use the Software solely on the Client’s networked server or servers running the Netsweeper software; and operating from that server or servers for use by authorized Users; Users being any authorized individual who may access the Netsweeper product(s) via Web Administration, Secure Shell (SSH), or any other method, for the purpose of administering, and/or operating the Netsweeper products; Specifically, the Client shall not, without Netsweeper’s prior written consent, use, utilize, leverage, employ or the like, the Software, which for greater certainty and without limitation includes for all purposes of these Terms & Conditions, graphical user interfaces commonly known as “pop up” or “deny” pages, “intercept page”, “message page – from our software platform”. A clear lineation to our policy manager for any purpose or benefit other than that which is expressly stated in these Terms & Conditions and for no ancillary, related, indirect or other use or purpose regardless whether or not the Software has or will have the functionality to do so;

(ii)    The Client shall have no right to access, request delivery of, or use the software source code and other proprietary information related to the function of the Software. Except if such would be permitted by mandatory law; and

(iii)   The Client shall not reverse engineer, disassemble, decompile or decompose the Software or Software or make any efforts to do same nor shall permit any other party to do so. Except if such would be permitted by mandatory law.

(c)     Activation. Activation of a product serial key, enabling full and unhindered operation of the Netsweeper software products, will be provided upon final acceptance of the delivered products and servers as per the term and conditions of this agreement. During the interim period between software delivery and final acceptance, a time limited product serial key will be delivered to enable the installation, configuration, delivery, preparation, and acceptance testing of the products and services.

(d)    Access. If applicable, the earlier of (i) the end of the fifteen (15) day evaluation period or (ii) when the Software has been deemed to be accepted, the Client shall contact Netsweeper and obtain a serial server key which provides the access to the Software from a secure site.

(e)     End User License Agreement (the “EULA”). The EULA shall govern the use of the Software by the end users and the Client shall ensure that all end-users of the Software on the Client’s system, or that the Client otherwise permits to use the Software, shall execute and deliver the EULA to Netsweeper.

(f)     Powered by Netsweeper. The grant of rights provided herein shall be subject to the Client’s duty to attribute the Software to Netsweeper. Such attribution may take the form of “Powered by Netsweeper”, or similar wording to be determined at the sole discretion of Netsweeper. The Client shall display on all packaging, media, covers and decals on the Client’s products, services or the like that employ the Software, Netsweeper’s logo in respect of the Software in a manner and size not less than fifty percent (50%) as prominent as the Client’s trademark. The Client shall also state in all its advertising and marketing materials that the Client product or service now contains the Software. The Client shall upon request provide to Netsweeper for prior approval sample copies of all of the Client’s advertising, marketing and packaging materials in respect of the Client’s product or service that contains or utilizes the Software, except as otherwise advised by Netsweeper.

2. Term and Renewal

The Licence is for a term of two (2) years (hereinafter the “Term”). The Term shall commence on the date of initiation of the Service, which shall begin at the earlier of thirty (30) days deployment of the Software within the Client network or when the Software has been deemed to be accepted. The Client expressly agrees that once the Software has been deployed either by being placed into production or placed into acceptance testing by the Client, regardless of being accepted by the Client, that thirty (30) days following this event the Software will be deemed to be accepted by the Client and Netsweeper shall commence billing period for same under the terms of these Terms & Conditions. These Terms & Conditions will automatically renew for additional twelve (12) month periods unless either Party informs the other in writing within sixty (60) days prior to the end of the Term.

The Client expressly agrees that if by thirty (30) days after deployment of the Netsweeper products within the Client network, the Client has not provided Acceptance, the Netsweeper Products will shut-down and cease operations. These Terms & Conditions will then automatically terminate.

3. Termination

(a)    Netsweeper may terminate the Licence immediately without notice upon the occurrence of any of the following events:

(i)      the Client breaches any of its obligations pursuant to these Terms & Conditions; or

(ii)    the Client ceases to carry on business in the normal course, passes a resolution for its winding up, becomes insolvent, makes a general assignment for the benefit of its creditors, a receiver is appointed over its business or assets, is subject to bankruptcy, insolvency or other proceedings for the protection of creditors.

(b)    Netsweeper may, after the Initial Term, terminate the Licence without cause upon sixty (60) days’ prior written notice.

(d)    Upon termination of the Licence for any reason, the Client shall forthwith:

(i)      pay in full all Fees still owing to Netsweeper; and

(ii)    deliver to Netsweeper all documentation pertaining to the Software and remove all copies of the Software from its computers, servers and systems.

Netsweeper’s rights pursuant to this section 3 are in addition any other rights or remedies that may be available under to applicable laws.

4. Software

Netsweeper provides software; this machine-readable object code is the software portion of the Software and includes the related documentation necessary. This Software and documentation, if any, are included together as a single product. The Software shall operate in a good and workmanlike manner free from defects as of the date of installation or acceptance (whether actual or deemed) and is current to the date of it being deployed by the Client or deemed deployed by Netsweeper. Given the volatile and changing nature of the internet and the various factors associated and affecting same and the like, any changes required to the Software as a result of changes to the internet, internet content, internet traffic, internet functionality, and the like will require re-evaluation by Netsweeper and may require amendments and/or upgrades to the Software not otherwise covered by the terms of these Terms & Conditions.

5. Proprietary Content

Netsweeper will, through the provision of its Software, provide to the Client the use of its proprietary URL database, and/or processes. The Client expressly acknowledges that all proprietary interests in the Software or Software or any modifications, enhancements, or improvements thereto shall be the sole and exclusive property of Netsweeper, and that these Terms & Conditions shall be construed to convey title in the Software or Software to the Client. The Client shall not take any action which purports to create a claim, lien, or encumbrance on the Software, Software, or any other confidential information of Netsweeper.

6. Intellectual Property

The Client acknowledges and agrees that the Products are legally and beneficially owned exclusively by Netsweeper and that no right, title or interest in any part thereof is granted or conveyed pursuant to the Licence or these Terms & Conditions except as expressly provided pursuant to section 1, above. For greater certainty and without limitation, for the purposes of this section 6, “Products” includes all Software, written materials provided in connection therewith and graphical user interfaces commonly known as “pop up” or “deny” pages as well as all copyrights, trademarks, trade secrets, patents, moral rights, contract and licensing rights in and in respect of the foregoing. All creations of the Client arising in connection with the Client’s use of the Software, including, without limitation, all copyrights, trademarks, trade secrets, patents, moral rights, contract and licensing rights therein (“Client Creations”) shall be “works for hire” under applicable legislation. The Client hereby irrevocably transfers and assigns to Netsweeper, and waives all rights, title and interest worldwide in and to, all Client Creations. If the Client has any right to Client Creations that cannot be assigned to Netsweeper then the Client hereby grants to Netsweeper an exclusive, irrevocable, perpetual, worldwide and royalty-free licence to use such Client Creations, to sublicense the same and to grant any number of sublicensees such right to sublicense. For the purposes of this section 6, the right to “use” shall include without limitation the rights to reproduce, create derivative works from, distribute, publicly perform and publicly display by all means now known or later developed. The Client shall execute and deliver all such documents, and take all such steps, as Netsweeper may determine in its sole discretion to be necessary or desirable to effect the Client’s obligations under this section 6, both during and after the term of the Licence.

7. Hardware

Netsweeper may, if applicable and upon request, provide configured server(s) and related hardware equipment (hereinafter the “Hardware”) to be located on the Client’s premises as agreed upon in writing. All Hardware remains the property of Netsweeper unless purchased by the Client.

8. Services

During the Term, and in accordance with these Terms & Conditions, Netsweeper may provide to the Client the following services:

(a)    Professional Services. Netsweeper will provide the Client with the initial set-up and configuration of the Software as well as ongoing system architecture design and consultancy servers for the Fee set out in the purchase order but not any customization to same unless otherwise agreed upon in writing. The set-up services include configuration of the Software on a server or servers to be used by the Client and making reasonable efforts to implement the Software for the Client. The Client shall provide a representative of the Client who understands the Client’s network and is technically capable of configuring routers, switches, and other equipment already in place on the Client’s network to assist in the set up and configuration of the Software at the Client’s site.

(b)    Category Name Service (CNS) the Category Name Service (CNS) provides URL categorization services from Netsweeper data centres for the purpose of providing category based URL filtering. This utilizes Netsweeper proprietary technology that integrated with the Netsweeper URL Filtering solution based at the Client site.

(c)     Software customization. As agreed by a change order and statement of work, priced on the effort at agreed rates.

(d)    Technical Support. Netsweeper shall provide to the Client technical support in accordance with the Service Level Operating Agreement (“SLA”) as may be entered into between Netsweeper and the Client. The Client will provide Netsweeper with full secure access to its local servers as Netsweeper may require to enable Netsweeper to provide such services as required by the SLA.

(e)     Fee Adjustment. All Fees set forth in the purchase order will be reviewed at the end of the Initial Term and any Subsequent Terms and fair and reasonable adjustments thereto may be made by Netsweeper including without limitation upon any of the following changes:

(i)      increases in the size of internet feed/throughput, thus creating more demands on the Netsweeper Software requiring additional servers needed to meet the added service load;

(ii)    increases in the number of workstations or locations having Internet access; or

(iv)    charges incurred by the Client for any additional or other use of the Software or Software not otherwise addressed in these Terms & Conditions.

9. Publicity and Co-Marketing

Upon deployment of the Software for the Client (commonly referred to as “go-live”), Netsweeper shall be authorized to publically claim the Client as a customer, by name and through use of the Client’s Logo, trademark(s) and/or tradename(s) as appropriate in presentations and on Netsweeper’s web site(s). Within ninety (90) days of the execution of these Terms & Conditions, or as otherwise agreed upon in writing by the parties, the Client and Netsweeper shall collaborate to produce a Netsweeper Case Study which describes the Software as deployed, the contents of which Netsweeper and/or the Client may re-use in a Press Release. The contents of the Case Study and Press Release(s) shall be subject to prior review and written approval of Netsweeper and the Client, such approval not to be unreasonably withheld or delayed. Nothing in these Terms & Conditions shall be construed to prohibit the Client or Netsweeper from accurately attributing Netsweeper with design and manufacture of the platform of the Software. Except for such routine attribution by Netsweeper or the Client, all other promotional activity of either Party in which the name or mark of the other Party is included shall be subject to prior review and written approval of such other Party, such approval not to be unreasonably withheld or delayed. Except as set forth in this Section 9, neither Party shall issue any press release regarding these Terms & Conditions without the prior written consent of the other Party.

10. Reports

The Client shall keep clear and accurate records sufficient to prepare, as appropriate, any needed Fee reports required by these Terms & Conditions. The Client and Netsweeper shall collaborate to create and document procedures to ensure that the Client can determine the appropriate Fee payable hereunder. If Fees are variable on a monthly basis, within five (5)

days after the end of each month, the Client shall provide a Fee report showing (i) the data regarding the sublicenceand/or sale of the Software during such month, (ii) any adjustments due as a result of errors in previous monthly reports, and (iii) the amount of the Fees due for each sublicence and/or sale of the Software during such month.

11. Audit

Netsweeper shall have the right, from time to time at its own expense, to conduct during normal business hours an audit of the appropriate records and systems of the Client to substantiate the accuracy of the Client reporting and the use of the Software provided by Netsweeper in this regard. Prompt adjustment shall be made by the Client or Netsweeper to compensate for any errors or omissions that are in favour of the other Party as disclosed by such audit. Netsweeper shall be granted temporary access to the Client’s computer systems, including Netsweeper Policy Server(s) (NSP) and records for the purposes of performing such audits. Audits will be limited to one per month provided that each audit performed shows no more than five percent (5%) variance between actual and reported results. In the event that the audit reveals unauthorized use of the Software then Netsweeper shall, at its sole discretion, be entitled to render an account for such usage and/or terminate these Terms & Conditions without further cause, liability on behalf of Netsweeper or notice to the Client.

12. Limited Warranty

NETSWEEPER WARRANTS TO THE CLIENT THAT DURING THE TERM, THE SOFTWARE WILL CONFORM TO ITS DOCUMENTATION AND SPECIFICATIONS WHEN USED IN CONFORMANCE WITH SUCH DOCUMENTATION. IF THE CLIENT SHOULD DISCOVER A WARRANTY CLAIM HEREUNDER, THE CLIENT’S SOLE RECOURSE AND THE MAXIMUM EXTENT OF NETSWEEPER’S LIABILITY WILL BE FOR NETSWEEPER TO CORRECT THE PROBLEM OR REFUND IF APPLICABLE, THE APPLICABLE LICENCE AND/OR SUPPORT FEES WITHIN ONE HUNDRED AND TWENTY (120) DAYS OF RECEIVING WRITTEN NOTICE OF THE WARRANTY CLAIM FROM THE CLIENT. EXCEPT AS DESCRIBED ABOVE, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. THE CLIENT ASSUMES ALL RISK AS TO THE RESULTS AND PERFORMANCE OF THE SYSTEM.

13. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL NETSWEEPER OR ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, OR ANYONE ELSE INVOLVED IN THE CREATION, PRODUCTION, DELIVERY OR LICENSING OF THE SYSTEM BE LIABLE TO THE CLIENT OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OR, FOR EXEMPLARY, PUNITIVE, OR AGGRAVATED DAMAGES WHATSOEVER (INCLUDING, LOSS OF PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SYSTEM, HOWEVER CAUSED, AND WHETHER OR NOT THE POSSIBILITY OR CAUSE OF SUCH DAMAGES WAS KNOWN TO NETSWEEPER BEFOREHAND.

14. Indemnity

The Client shall protect, defend, indemnify and hold harmless Netsweeper officers, directors, employees, affiliates, agents and their respective employees from any and all losses, claims, actions, proceedings, expenses, damages or liabilities, including, without limitation, reasonable legal fees and court costs incurred by Netsweeper as a result of the Client’s use of the Software or Hardware.

15. Payment

All fees set forth in the purchase order are subject to applicable taxes which shall be paid by the Client (which shall include, without limitation, sales, use, service, excise, and personal property taxes, whether collected by withholding or otherwise assessed, and any penalty and interest payments related thereto). In the event Netsweeper is charged such taxes directly, Netsweeper may add the required tax amount (to comply with tax laws) to the Fees owed by the Client hereunder. Non-payment of invoice due constitutes adequate breach for the serial key to be disabled and/or deactivated by Netsweeper. Once payment has been received, the serial key will be reactivated after a system check has been conducted. Serial reactivation fee is a minimum of $2,500 USD per day of non-operating serial and the system check fee is $2,500 USD per day plus additional Netsweeper expenses. These additional fees and charges are without prejudice to Netsweeper’s right to claim full compensation of damages if such damages are greater than the fees that are required to be paid by the Client and Netsweeper may simultaneously with payment of the aforementioned fees, demand compliance/performance with these Terms & Conditions.

16. Confidentiality and Non-disclosure

Each Party agrees that it will not disclose to any third party any information concerning the customers, trade secrets, methods, processes or procedures, terms of this agreement or any other confidential, financial or business information of the other party without the prior written consent of the other party. This obligation will survive the cancellation or other termination of the Licence. Netsweeper keeps all log files and information regarding the Client in trust. All information gathered in the course of service is the property of the Client and will only be used for client related purposes or for Netsweeper to improve its services. Each Party shall treat all Confidential Information received from the other in confidence and shall not use such Confidential Information, or disclose it to any third party, except as required by law (including applicable stock exchange rules and regulations) or insofar as strictly necessary for the performance of its obligations hereunder. This undertaking shall not apply to information lawfully received from a source other than the other Party.

Any Confidential Information supplied by one party to the other shall be governed by the following Terms & Conditions:

(i)      each party agrees to protect such Confidential Information with the same degree of care which it uses to protect its own like data and information;

(ii)    each party agrees that it shall not disclose to third parties in any manner or form, or otherwise publish such Confidential Information so long as it remains confidential without the explicit authorization of the other party; and

(iii)   each party agrees that it shall use such Confidential Information solely in connection with the performance of its obligations under these Terms & Conditions unless otherwise explicitly authorized by or on behalf of the other party.

Each party is responsible for ensuring that its employees and all other persons having access to the Confidential Information sign obligations of confidentiality equivalent to those contained in this clause. In the event that a party becomes aware of any breach of confidence by an employee or other person, it shall immediately notify the other party and give that party reasonable assistance in connection with any proceedings, which that party may institute against such person.

The obligations of Confidentiality herein will survive the cancellation or other termination of the Licence.

17. Assignment

The Client may not transfer or assign the Licence or its rights or obligations under these Terms & Conditions, whether directly or indirectly, without the prior written consent of Netsweeper.

Any transfer or assignment in violation of this paragraph shall be void and of no force or effect.

18. Notices

Any notices, demands and other communications hereunder shall be in writing and shall be deemed to have been given if delivered or if mailed registered or certified mail by express International registered post or sent by facsimile:

If to Netsweeper, at:

Please refer to the quote for the address.

Facsimile notice may be used only if a means of obtaining an immediate written confirmation of receipt is available and such proof is presented in the event of dispute.

19. Force Majeure

Netsweeper’s performance of its obligations hereunder shall be subject to force majeure, including without limitation, insurrections, riots, wars and war-like operations, explosions, governmental acts, epidemics, failure of contractors and subcontractors to perform, hydro failures, wireless application failures, strikes, fires, accidents, inability to obtain qualified labour, or any similar occurrence beyond the reasonable control of Netsweeper. Netsweeper shall not be liable for any damages incurred by the Client as a result of such breach or failure, if such breach or failure to perform is caused by circumstances beyond the control of Netsweeper. Netsweeper shall be temporarily excused from performance hereunder by any such circumstances and shall use its best efforts to avoid, remove or cure such circumstances and shall resume performance with utmost dispatch when said circumstances are removed or cured. Netsweeper shall give prompt notice to the Client, claiming the circumstances which as an excuse for delay in performance.

20. Miscellaneous and Applicable Law

These Terms & Conditions are binding on the parties hereto, their successors and permitted assigns. The invalidity of enforceability of any provision hereof will in no way affect the validity of enforceability of any other provision.

In the event of conflict between these Terms & Conditions and any of the Purchase Order, the EULA or the SLA, these Terms & Conditions shall govern.

These Terms & Conditions shall be construed in accordance with Laws of the Province of Ontario and the federal laws of Canada applicable therein. The application of the UN Sales Convention is explicitly excluded. The Client hereby attorns to the jurisdiction of the courts of the Province of Ontario.

These Terms & Conditions constitute the entire agreement between Netsweeper and the Client with respect to the subject matter hereof and supersede all prior or contemporaneous agreements, understandings, negotiations and discussions, whether oral or written.

21. Currency

Unless otherwise specified in the Purchase Order, all monetary amounts referred to in the Purchase Order refer to the lawful currency of the United States of America.

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