jpos Commercial License Agreement This jpos Commercial License Agreement (this Agreement ) is made by and between Alejandro Revilla, a sole trader company organized under the laws of the Oriental Republic of Uruguay, d/b/a jpos Consulting, ( jpos Consulting ) and Customer listed in the signature block at the end of this Agreement ( Customer ). Background: jpos is a software package intended to assist in the processing of financial transactions. A version of jpos is distributed to the public under the GNU Affero General Public License and/or other open source licenses. Customer wishes to use jpos, but does not wish to be bound by certain requirements of such licenses. Instead, Customer wishes to license jpos from jpos.org under the terms of this commercial Agreement. Intending to be legally bound, the parties agree as follows: 1. Definitions Capitalized terms not elsewhere defined in this Agreement shall have the following meanings: "Commercial Edition" means version 2.0.6 or prior version of jpos provided by jpos.org to Customer under the terms of this Agreement as well as any new versions, changes, additions and extensions thereto that jpos.org may provide to Customer from time to time (including any such changes that jpos.org may provide to Customer under the terms of a support agreement). "Documentation" means the documentation accompanying the Commercial Edition, whether provided in paper or electronic form, including documentation describing the functionality of jpos. "Including" or "Includes" means including, but not limited to or includes, but is not limited to. "Open Source Edition" shall mean the GNU Affero General Public License or any other open source software license under which jpos may be distributed in the future. 2. License (a) jpos.org hereby grants to Customer a non-transferable, non-exclusive license (the License ) to do the following with respect to the Commercial Edition, subject to the terms of this Agreement, including payment of applicable license fees: [ Rest of the page intentionally left blank ] Page 1 / 6
(i) prepare derivative works from the Commercial Edition (each a Derivative Work ); (ii) incorporate Derivative Works and/or the Commercial Edition into software packages or programs containing substantial additional functionality (each a Larger Work ); (iii) copy the Commercial Edition, Derivative Works and Larger Works solely inside Customer s organization; (iv) execute the Commercial Edition, Derivative Works and Larger Works on computers owned by, or under the direct control of, Customer; and (v) copy the Documentation, provided that Customer does not distribute such copies outside of its organization. (b) Customer shall not disclose, transfer, or distribute the Commercial Edition, a Derivative Work, a Larger Work or any Documentation outside of Customer s organization in any form (including, but not limited to, as source code or object code) without obtaining a license to do so from jpos Consulting. However, the foregoing shall not be construed so as to limit Customer s ability to distribute the Open Source Edition under the terms of the Open Source License. (c) Except for the License above, jpos Consulting reserves all rights in the Commercial Edition, including all patent, copyright, trademark, and trade secret rights. Customer agrees not to rent, lease, transfer or otherwise use the Commercial Edition, Derivative Work or a Larger Work for the benefit of any third party. Customer further agrees to reproduce without alteration all copyright and proprietary rights notices in all copies of the Commercial Edition, Derivative Works, Larger Works, and Documentation made by Customer. 3. Delivery of Commercial Edition Within five (5) business days of the execution of this Agreement by the parties, jpos Consulting shall provide to Customer the address of a web page or ftp site from which Customer may download the Commercial Edition in source code format and the Documentation. At such time the Commercial Edition may be identical to the Open Source Edition, in which case (i) jpos Consulting may instead provide the address of a web page from which Customer may download the Open Source Edition in source code format, and (ii) notwithstanding any notices on such web site or in such Open Source Edition, the terms of this Agreement shall govern Customer s use of the Open Source Edition, and not the Open Source License. 4. Payment If the Fee is not paid upon execution of this Agreement, Customer shall pay to jpos Consulting the license fee specified on the signature page of this Agreement (the Fee ) within thirty (30) days of the execution of this Agreement. All payments shall be made in U.S. currency. Customer shall be responsible for all taxes associated with the Fee, excluding taxes based on jpos Consulting s net income. Page 2 / 6
5. Customer Changes to Commercial Edition In the event that Customer, in its sole discretion, provides jpos Consulting with its changes (the Customer Changes ) to the Commercial Edition, Customer hereby: (a) grants to jpos Consulting a world-wide, irrevocable, sublicensable license under all copyrights, patents, trademarks and trade secrets to use, copy, execute, prepare derivative works from, publicly perform and distribute Customer Changes; and (b) warrants that Customer has no knowledge or reason to believe that the use, copying, distribution, import, or export of Customer Changes will infringe any proprietary rights of any third party. 6. Updates by jpos Consulting to Commercial Edition Beginning on the Effective Date noted below, and continuing for one year thereafter, Customer will have the right to receive copies of new versions and updates of the Commercial Edition released by jpos Consulting from time to time. Any such new versions and updates shall be deemed to be part of the Commercial Edition and shall be governed by the terms of this Agreement. Nothing in this paragraph requires jpos Consulting to release any new versions or updates of the Commercial Edition. 7. Support and Consulting Services Nothing in this Agreement shall obligate jpos Consulting to provide any installation, configuration, consulting, support or maintenance services. jpos Consulting may, for an agreed fee and by mutual agreement, provide support and/or consulting services to Customer. 8. Use of Open Source Edition Nothing in this Agreement shall be construed as preventing Customer from using the Open Source Edition under the terms of the Open Source License. However, Customer may not intermingle portions of the Open Source Edition with the Commercial Edition. 9. Term and Termination This Agreement shall enter into force on the Effective Date, after signature of such Agreement by the two parties, for an initial term of one year (the Initial Term ). At the end of such Initial Term, this Agreement shall be automatically renewed for additional one year periods (each a Renewal Period ) for a renewal fee specified on the signature page of this Agreement, unless a party notifies in written to the other party its decision not to renew the Agreement at least three months before the end of the Initial Term or any Renewal Period. jpos Consulting may terminate this Agreement and the License if Customer breaches this Agreement and fails to cure such breach within ten (10) days after notice from jpos Consulting. Upon termination, Customer will immediately cease all use of the Commercial Edition and destroy all copies of the Commercial Edition, including as incorporated into any Derivative Works or Larger Works. Sections 2(b), 5, 10, 11, and 12 shall survive any termination of this Agreement Page 3 / 6
10. No Warranty THE COMMERCIAL EDITION AND ANY SERVICES PROVIDED BY JPOS CONSULTING IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED AS- IS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AS WELL AS ANY WARRANTIES ARISING FROM USAGE IN THE TRADE OR A COURSE OF DEALING BETWEEN THE PARTIES ARE HEREBY DISCLAIMED. jpos Consulting does not guarantee that the operation of the Commercial Edition will be error-free or uninterrupted. jpos Consulting has used reasonable bona fide efforts to ensure that software shall not contain any code that weakens the security of the application, including computer viruses, worms, time bombs, back doors, Trojan horses, Easter eggs, and all other forms of malicious code. 11. Limitation of Liability Customer shall be solely responsible for (a) the accuracy and adequacy of information and data furnished for processing by the Commercial Edition; and (b) any use made by Customer of the output of the Commercial Edition or any reliance therein. IN NO EVENT SHALL EITHER PARTY BE ENTITLED TO RECOVER FROM THE OTHER PARTY ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR DAMAGES BASED ON ANY LOST SALES, LOST PROFITS OR DATA, EVEN IF SUCH PARTY IS AWARE THAT ANY SUCH DAMAGES MAY OCCUR CUSTOMER AGREES THAT ANY LIABILITY OF JPOS CONSULTING RELATED TO THIS AGREEMENT OR TO THE COMMERCIAL EDITION SHALL BE LIMITED TO THE AMOUNT OF FEES ACTUALLY RECEIVED BY JPOS CONSULTING FROM CUSTOMER UNDER THIS AGREEMENT IN THE YEAR IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. 12. Miscellaneous (a) Assignment. The License and this Agreement may not be assigned by Customer without jpos Consulting s prior written consent. In the event that Customer undergoes a change of control by means of a merger or a sale of controlling equity interest, and the number of employees, processors utilized in connection with the Commercial Edition, or instances of the Commercial Edition, associated with the new controlling and/or combined entity is greater than the number of employees, processors or instances of Customer prior to such transaction, then Customer agrees to pay to jpos Consulting an additional license fee based on the difference in the number of employees, processors, and/or instances. (b) Dispute Resolution. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the International Court of Arbitration of the International Chamber of Commerce in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The parties agree that the location for all such arbitrations shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. (c) Compliance with Laws. Customer agrees to comply with all applicable laws and regulations with respect to the Commercial Edition, including all export and re-export Page 4 / 6
control laws and regulations. (d) Referral. Customer agrees to allow its name to be mentioned as a client of jpos on jpos website and in user literature. Client further agrees to allow jpos to reference Client's name as a client in jpos' promotional messages, press releases and/or similar marketing materials. (e) (f) Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties and supersedes and cancels all previous negotiations, agreements and commitments, whether oral or in writing, with respect to the subject matter described herein. This Agreement may be modified only by a written instrument signed by an authorized representative of each party. Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original and all of which together constitute one instrument. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives: License Assumptions: employees, processors; instances License Fee: Renewal Fee: Effective Date: [ Rest of the page intentionally left blank ] Page 5 / 6
By: By: Alejandro P. Revilla d/b/a jpos Consul7ng Address: Address: Sábat Pebet 1234 / 1603, Montevideo, 11300, Uruguay Name: Name: Title: Title: Date: Date: Signature Signature Page 6 / 6