END USER LICENSE AGREEMENT FOR ITDR SOFTWARE -------------------------------------------- **IMPORTANT- READ CAREFULLY BEFORE USING THIS SOFTWARE**: This End User License Agreement ("Agreement") is a legal agreement between you (either an individual or a single entity, referred to as "Licensee") and Theta Interactive, Inc, dba IntotheDarkroom, a photography software company accessible online at intothedarkroom.com and having a place of business at 2800 S. Rural Road, Suite 104, Tempe, Arizona, 85282 ("ITDR") for the use of certain ITDR Software. The ITDR Software may include any of the following ITDR products including any combination of such products and Alpha, Beta, trial, pre-release, free, pay and premium versions of the products: slideshows, photo carts, proofing systems, websites, blogs, plugins and/or any other software that may be downloaded and/or sold from the ITDR website intothedarkroom.com. You may install on your server only ONE copy of the Software for which payment has been made. By clicking on the "Accept" button, installing, copying or otherwise using the Software, you agree to be bound by the terms of this License Agreement. **IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, CLICK ON THE "CANCEL" BUTTON AND/OR DO NOT INSTALL THE SOFTWARE**. **1.Definitions.** * (a) The term "Abnormal Use" means any use of the Software in disregard of (i) any known adverse consequences or (ii) warning message. * (b) The term "Affiliate" means any entity that is controlled by Licensee. * (c) The term "Documentation" means any user and/or systems manual(s) for the Software that ITDR may make available, including all replacements, updates, additions and changes to such written materials which may be made available by ITDR from time to time. * (d) The term "License" is defined in Section 2(a). * (e) The term "ITDR Software" means any of the following ITDR products including any combination of such products and Alpha, Beta, trial, pre-release, free, pay and premium versions of the products: slideshows, photo carts, proofing systems, websites, blogs, plugins and/or any other software that may be downloaded and/or sold from the ITDR website intothedarkroom.com. * (f) The term "Software" means (i) the ITDR Software, (ii) any Third Party Software, and (iii) all modifications, improvements, replacements, enhancements, additions, corrections, upgrades, customizations and other changes to such software from time to time made by ITDR or its licensors and delivered to Licensee. * (g) The term "Third Party Software" means any third party software necessary for use of the ITDR Software pursuant to this Agreement. **2.License.** * (a) ITDR hereby grants Licensee a non-exclusive, non-transferable license ("License") to download onto Licensee's server one copy of each application of the Software for which Licensee has paid and to use such Software in accordance with the terms of this Agreement. Payment for the License shall be made by Licensee prior to grant of the License and is hereby acknowledged by Licensee as final and nonrefundable, the terms for payment of the License being set forth on ITDR's website intothedarkroom.com. * (b) Licensee shall not (i) permit any third party to use the Software or the Documentation, (ii) make copies of the Software or Documentation except as otherwise permitted hereby or as necessary to use the Software and Documentation in accordance with this Agreement, (iii) reverse engineer, disassemble or reverse compile the Software, (iv) sell, let for hire, sublicense, distribute, give away or otherwise supply to a third party any of the Software or Documentation or (v) use the Software or Documentation to create any computer software program or user documentation that is substantially similar to the Software or Documentation. * (c) Licensee shall be responsible for and indemnify ITDR for any damages resulting from any violation of the terms of this Agreement by Licensee or an Affiliate that Licensee permits to use the Software. * (d) Licensee may modify the Documentation to the extent necessary to reflect more closely Licensee's operations. ITDR shall retain all rights in any such modified Documentation. **3.Term and Termination.** * (a) The effective date of this License shall be the date of Licensee's full payment for use of the Software and its term is perpetual, unless terminated as provided in this Agreement. * (b) Licensee may terminate this License at any time by destroying all copies of the Software and Documentation. ITDR may terminate this License upon thirty (30) days' written notice to Licensee, if Licensee fails to comply with any of the material terms and conditions of this Agreement and if such failure to comply is not corrected within the said thirty (30) day period. * (c) Upon termination of this License for any reason, Licensee shall cease use of the Software and Documentation and shall return or destroy all copies of the Software and Documentation. Within thirty (30) days after the termination of this License, a corporate officer of Licensee shall execute a statement certifying that Licensee has fully complied with the terms of this section and acknowledging that all rights to use the Software and Documentation have been terminated and that any further use of the Software or Documentation is unauthorized and would be in violation of ITDR's rights therein. * (d) Termination of this License shall not relieve Licensee of its obligations to pay any amounts then due ITDR and shall not entitle Licensee to a refund of any amounts paid under this Agreement. **4.Ownership.** ITDR and/or its licensors own all proprietary rights, including patent, copyright, trade secret, trademark and other proprietary rights, in and to the Software and Documentation. **5.Confidentiality.** The Software and Documentation are confidential and proprietary information of ITDR and/or its licensors. Licensee agrees to take adequate steps to protect Software from unauthorized use or disclosure. **6.Disclaimer of Warranties.** ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXCLUDED TO THE EXTENT PERMITTED BY LAW. **7.Infringement.** * (a) ITDR shall have no liability to Licensee for any infringement action or claim that is based upon or arises out of the use of the Software (or any modification thereof, whether authorized or not) by Licensee or any third party or the use of the Software or any portion thereof in combination with any other equipment or software. * (b) THIS ARTICLE STATES ITDR'S ENTIRE OBLIGATION TO LICENSEE WITH RESPECT TO ANY CLAIM OF INFRINGEMENT. **8.Export Regulations.** The Software, including any technical data relating thereto, may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export or import the Software. **9.U.S. Government Rights.** If Licensee is acquiring the Software and the accompanying Documentation on behalf of the U.S. Government, the Software and accompanying materials are to be deemed to be "commercial computer software" and "commercial computer software documentation" or "restricted computer software" as those terms are defined in the Federal Acquisition Regulation ("FAR"), and the Government shall have only those rights specified in this Agreement and, if applicable, the clause entitled "Commercial Computer Software Restricted Rights (June 1987) at FAR 52.227-19. The Software is an unpublished work with all rights reserved under the copyrights laws of the United States. **10.Limitation of Liability.** ITDR'S total liability on any claim of any kind for any loss or damage arising out of, resulting from or in connection with (i) this Agreement or the performance or breach thereof or (ii) the use or performance of the Software shall not exceed the amount of the license fee paid for the Software. IN NO EVENT SHALL ITDR BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, REVENUE, DATA OR GOODWILL, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, INCLUDING WITHOUT LIMITATION CONTRACT, WARRANTY, STRICT LIABILITY, OR NEGLIGENCE, EVEN IF ITDR HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. **11.Binding Effect.** This Agreement shall be binding upon the parties and their respective legal successors and permitted assigns **12.Assignment.** Licensee may not assign or transfer this Agreement or any right or obligation hereunder without ITDR's prior written consent. Any assignment made in violation of this provision shall be void. **13.Severability.** If any provision hereof is found by a tribunal of competent jurisdiction to be illegal or unenforceable, then such provision is hereby waived to the extent necessary for the Agreement to be otherwise enforceable. **14.Notices.** All notices or other written communications required or permitted to be given sent pursuant to this Agreement shall be sent by overnight, registered or certified mail (return receipt requested) and addressed to the parties at the addresses first set forth above (or such other address as may be specified by like notice). **15.Governing Law.** The Agreement is made under and shall be governed by and construed in accordance with the laws of the State Arizona, Maricopa County, without reference to its choice of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. **16.Disputes.** Licensee (i) agrees that it may bring a cause of action relating in whole or in part to this Agreement only in either a state or a federal court located within Maricopa County, Arizona, (ii) agrees that it may not initiate any such cause of action against ITDR in a court located in any state other than Arizona and (iii) specifically waives any right it may otherwise have to initiate any such cause of action against ITDR in a court located in any state other than Arizona. Licensee further agrees that it is subject to personal jurisdiction in the state of Arizona with respect to any cause of action that relates in whole or in part to this Agreement, specifically including any such cause of action that ITDR may bring against Licensee. All parties agree that venue for any cause of action relating in whole or in part to this Agreement shall be properly laid in the state or federal courts located in Maricopa County, Arizona. Notwithstanding the foregoing, ITDR may, in its sole discretion, bring an action against Licensee in any other jurisdiction in which proper jurisdiction over Licensee may otherwise be obtained. **17.Entire Agreement.** This Agreement contains the entire agreement between Licensee and ITDR relating to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals and representations relating to the subject matter hereof. **18.Modifications.** No modification or amendment to this Agreement will be binding unless in writing and signed by a duly authorized representative of each party. **19.Waiver.** A failure or delay of either party to this Agreement to enforce at any time any of the provisions of this Agreement, to exercise any option which is herein provided or to require at any time performance of any of the provisions hereof shall in no way be construed to be a waiver of any provision of this Agreement.