CLICKSOFTWARE MASTER LICENSE AGREEMENT

THIS CLICKSOFTWARE MASTER LICENSE AGREEMENT (THE “AGREEMENT”) IS ENTERED INTO BY AND BETWEEN CLICKSOFTWARE INC., WITH ITS PRINCIPAL OFFICE AT 35 CORPORATE DRIVE, SUITE 400, BURLINGTON, MA 08103 (“COMPANY”) AND YOU (“YOU” OR “CLIENT”). BY CLICKING THE “I ACCEPT” BUTTON DISPLAYED AS PART OF THE ONLINE ORDERING PROCESS FOR THE CLICKSOFTWARE LICENSE AND SERVICES OR BY ACCESSING THE SERVICE (AS HEREINAFTER DEFINED), YOU AGREE TO THE TERMS AND CONDITIONS HEREIN, WHICH GOVERN THE USE THEREOF.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO DO SO. IN SUCH CASE THE TERM “YOU” OR “CLIENT” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN, OR IF YOU DO NOT HAVE THE REQUISITE AUTHORITY, COMPANY DOES NOT WISH TO PROVIDE THE LICENSE AND/OR SERVICE. IN SUCH CASE, PROMPTLY SELECT THE “I DECLINE” BUTTON AND DO NOT ACCESS THE SERVICES. THIS AGREEMENT IS EFFECTIVE WHEN YOU CLICK THE “I ACCEPT” BUTTON BELOW (THE “EFFECTIVE DATE”). THIS AGREEMENT GOVERNS YOUR USE OF THE SERVICE (AS HEREINAFTER DEFINED) DURING THE 30-DAY TRIAL PERIOD DESCRIBED BELOW, AND DURING THE TERM OF ANY LICENSE SUBSEQUENTLY PURCHASED BY YOU PURSUANT TO PURCHASE ORDERS.

1.0          DEFINITIONS.

1.1                “Content” means any information, documents, software, products and/or services contained or made available to Client in the course of using the Service, other that Client Data.

1.2                “Client Data” means any data, information, content, or other material provided, made available, or submitted by Client to the Service.

1.3                “Documentation” means the applicable technical documentation generally published and made available by Company to its customers.

1.4                “Licensed Users” means Your employees, representatives, consultants, or agents who are authorized to use the Service and have been supplied user identifications and passwords by You.

1.5                “Service” means the online software solutions and other services offered by Company and identified during the ordering process, whereby Company will host and maintain certain Company software on servers owned and/or operated by Company, and Client will be granted non-exclusive electronic access thereto via the Internet, as more specifically identified herein. The term “Service(s)” applies to those ordered by You as part of a 30-day free trial or under an Order Form (as hereinafter defined).

2.0          ORDER PLACEMENT.

2.1          30-Day Free Trial: Company offers a no-cost trial of its Service for up to thirty (30) days with no further obligation. You may register for the 30-Day Free Trial by filling out and submitting the Trial Registration Form available on Company’s website, subject to acceptance of the terms of this Agreement, and any additional terms and conditions contained on the trial registration form (which are incorporated herein by this reference). The Services will be available to You free of charge until the earlier of either (i) the expiration of the 30-day period or (ii) the start date of   Services ordered by You via an on-line order form, which is also available on Company’s website (the “Order Form”). Thereafter, you must pay Company the applicable Fees in order to continue use of the Service. Notwithstanding any contrary provision in this Agreement, Services provided during the 30-Day Free Trial period are provided “AS  IS”, without warranty of any kind. Sections 10.2.1 and section 11.1 shall not apply during the trial period.

2.2          Purchase Orders: You shall be entitled to place orders for Services, for additional Licensed Users or for additional Services, at the then current and applicable pricing by submitting an Order Form, based on the relevant quote provided by Company for the requested Services (the “Order Form”). Company will be under no obligation to provide any Services or additional Licensed Users under orders placed with inaccurate, new, insufficient or conflicting terms.

3.0          LICENSE

3.1          Grant of License: Subject to payment of the applicable subscription fee (the “Fee(s)”), and pursuant to the terms and conditions of this Agreement, Company grants You a limited, nonexclusive, nontransferable, non-sub-licensable license to access and use the Service via the Internet in accordance with the application description and the Documentation, solely for Your internal business purposes, during the time period and limited to the number of Licensed Users specified in the applicable Order Form.   All rights not expressly granted to You are reserved by Company.

3.2          Reserved.

3.3          Restrictions: You shall not and shall not permit others to (i) modify or create derivative works based upon the Service or Content; (ii) use the Service or the Content for the benefit of a third party; (iii) license, sublicense, assign or otherwise transfer or exploit the Service or make the Service or the Content available to third parties, except as may be authorized by Company in writing;  (iv) reverse engineer or decompile the Service; (v) access the Service or Content for any reason other than for Your internal business purposes and in strict accordance with the application description; or (vi) interfere with the Service. Breach of this provision shall automatically void the license(s) granted herein.

3.3A       Service: The Service will be hosted by the Company, and You shall access/use the Service via Microsoft Terminal Services 2003 and Cisco VPN access. You are responsible for obtaining access to the Internet using software and hardware that meet Company’s minimum requirements, including security requirements.

3.3B       Access. You are responsible for the confidentiality and use of names and passwords under Your account. Company will deem any communication, data transfer, or use of the system received under Your account names and passwords to be for Your benefit and use. You agree to notify Company if account names or passwords are lost, stolen, or being used in an unauthorized manner. You shall abide by all applicable laws and regulations in connection with its use of the Service.

3.3C       Ownership of data and license. You agree that back-up or archival of Client Data is not an infringement of any of Your intellectual property rights of those of any third party. You agree that You will not store data on the host server that is subject to the rights of any third parties without first obtaining all required authorizations and rights in writing from such third parties.

3.4          Material Terms and Conditions: You specifically agree that each of the terms and conditions of the Section 3 are material and that failure by You to comply with these terms and conditions shall constitute sufficient cause for Company to terminate this Agreement and the licenses granted herein.  The presence of this subsection 3.4 shall not be relevant in determining the materiality of any other provision or breach of this Agreement by either party.

4.0          LICENSE FEE.

4.1          Pricing:  Fees for the Service are in set forth in the relevant Order Form. Fees are based on Services ordered and not on actual usage. Number of Licensed Users cannot be decrease during the relevant license period set forth in the Order Form. However, additional Services or additional Licensed Users may be ordered in accordance with the then-current Fees. Payment obligations are non-cancelable and Fees paid are non-refundable.   The Fees are calculated, inter alia, based upon the length of the license period(s), as set forth in the relevant Order Form. The minimum license period is for a one-month term.

4.2          Payment Terms: Each installment of the License Fee shall be due and payable in accordance with the Payment Schedule set forth in the applicable Order Form. All amounts not paid within thirty (30) days of the due date shall bear interest at the rate of 1.5% per month, or the highest rate allowed by law, whichever is less, from the date due until paid.  Failure by You to pay any amounts when due shall constitute sufficient cause for Company to terminate this Agreement and the licenses granted herein.

4.3          Taxes:  You shall be responsible for any and all applicable taxes, customs, duties, use, excise, sales and value-added taxes, tariffs or withholding taxes imposed as a result of the transactions contemplated by this Agreement. If a taxing authority determines that Company did not collect all applicable taxes, You shall remain liable to Company for such additional taxes, but not any interest or penalty assessed as the result of Company’s failure to timely collect such additional taxes.

5.0          AUDIT.

Audit: Company may, at its expense, audit Your compliance with the terms and conditions of sections 3.0 and 4.0 of this Agreement.  If an audit reveals that You have underpaid applicable license fees to Company, You shall be invoiced for such underpaid fees, which shall be due immediately upon receipt of such invoice.  If the underpaid fees are in excess of five percent (5%), You shall reimburse Company for all reasonable costs incurred to conduct the audit.  Notwithstanding the foregoing, You shall have the option, at Your expense, to request that the audit be performed by a mutually agreed upon independent auditor.

6.0          MARKETING

6.1          Press Release:  Upon the execution of this Agreement, Company shall have the right (i) to issue a press release announcing the existence of this Agreement and any other relevant information and (ii) to use Your logo on Company’s customer list on Company’s website.   Both parties have the right to issue any press release needed to comply with any governmental or securities law.

6.2          Website:  Company shall have the right to add Your name and trademark to its collective list of existing clients that appears on Company’s website or other media for as long as this Agreement is in effect.

7.0          TERM.

7.1          Term: Unless earlier terminated in accordance with the provisions of Section 13 (Termination), the license shall become effective as of the Effective Date and shall remain in effect until the date set forth in applicable Order Form. Thereafter, this Agreement shall automatically renew for subsequent periods of one month, unless, prior to the date of termination/expiration of the then-current term, either (i) You provide company with thirty (30) days prior written notice of Your intention not to renew, or (ii) Company provides You with sixty (60) days notice of its intention not the renew. If You have registered for the 30-Day Trial and elect not to purchase Services by submitting an Order Form prior to the expiry thereof, this Agreement will terminate upon completion of the 30-Day Trial period.

8.0          INTELLECTUAL PROPERTY RIGHTS.

8.1          Ownership:  You acknowledge that, as between You and Company, all right, title and interest in the Service and the Content, as well as to Company trademarks, trade names, logos or other proprietary marks (“Company Marks”) and other intellectual and proprietary rights therein, are and at all times shall remain the sole and exclusive property of Company, and shall be subject to the terms and conditions of this Agreement.  In the event You provide any suggestions, ideas, enhancement requests, or feedback to Company with respect to the Services and/or Content, You agree that Company may freely use, disclose, reproduce, license, distribute and otherwise commercialize the same in any Company product or service. This Agreement is not a sale and does not convey any rights of ownership in or related to the Services or the Content or any intellectual property rights owned by Company. You agree to fully comply with all federal, state, and local privacy laws in connection with use of the Services and the Content.

9.0          CONFIDENTIALITY.

9.1          General: Each party acknowledges that during the term of this Agreement it shall be entrusted with certain Confidential Information of the other party that should reasonably have been understood by the receiving party due to legends or other markings, the circumstances of disclosure or the nature of the information itself, to be proprietary and confidential to the disclosing party and agrees that it shall use reasonable care to protect the confidentiality thereof, using at least the same measures it would use to protect its own similar information and for a period of three (3) years after termination of this Agreement shall not (a) use such Confidential Information for any purpose except the performance of this Agreement, or (b) disclose any such Confidential Information to any person (except employees or agents on a need-to-know basis where such persons have agreed to be bound in writing to obligations of confidentiality), unless such disclosure is authorized by the other party in writing, or (c) disclose any such Confidential Information required by court or judicial order without first informing the other party and cooperating with such other party if such other party shall contest such disclosure.

Company has implemented commercially reasonable technical, physical and procedural controls, as is customary in the industry, to protect the security, confidentiality and integrity of the Client Data. Notwithstanding the foregoing, You acknowledge and agree that, use of or connection to the Internet provides the potential opportunity for illegal access to the Service and Client Data by unauthorized third parties.

9.2          Exceptions:  The obligations of each party under this Section 9 shall not apply to information that (i) was in a party’s possession without confidentiality restriction prior to disclosure; (ii) was generally known in the trade or business in which it is practiced by the receiving party at the time of disclosure, or becomes so generally known after such disclosure, through no act of the receiving party; (iii) has come into the possession of the receiving party rightfully from a third party without obligation of confidentiality; or (iv) was developed by the receiving party independently of and without reference to Confidential Information.

10.0        WARRANTIES.

10.1        Power and Authority:  Each party warrants to the other party that it has sufficient right and authority to enter into this Agreement, and to grant the rights and assume all of their respective rights and obligations set forth herein.

10.2        Service Warranties and Limitations

10.2.1      Company warrants that the Services shall perform substantially in accordance with the Documentation referenced in the Order Form during the relevant license term.   In the event that Client notifies Company in writing specifying in reasonable detail how the Service fails to meet such warranty, Company shall use reasonable commercial efforts to correct the defect at no additional charge.  Company shall not be liable to the extent any defect or error is caused, or contributed to, by use of the Service contrary to the applicable technical Documentation. Company shall have no liability in connection with any third party applications or components in connection with the Service.

10.2.2     Company does not warrant that the use of the Service will be uninterrupted, error-free or completely secure.  You acknowledge that there are certain risks inherent in internet connectivity that could result in the loss of privacy, Confidential Information and property.  Company shall not be responsible for the backup of any data provided by You.

10.3        No other Warranties:  THE FOREGOING WARRANTY OF COMPANY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE SERVICE SHALL OPERATE UNINTERRUPTED OR ERROR FREE.

11.0        INTELLECTUAL PROPERTY INFRINGEMENT.

11.1        Indemnity: Company shall indemnify and defend You, at its sole expense, against all liability and expenses, including reasonable attorney fees and costs, in any action or proceeding brought by a third party against You arising from a claim that use of the Services as provided herein infringes or misappropriates a duly issued  patent, copyright or trade secret of a third party in the country in which You are located, provided that You promptly notify Company in writing of such action.  In the event the Service in such action or proceeding is held to constitute an infringement, Company shall, at its expense, either:

11.1.1     procure for You the right to continue using said Service; or

11.1.2     replace same with an equivalent non-infringing Service, and extend this indemnity thereto; or

11.1.3       modify the infringing Service to make it non-infringing; or

11.1.4       remove the infringing portion of the Service.

11.1.5       if none of these options is available to Company on reasonable economic terms, then the applicable Order or this Agreement may be terminated at the option of either party hereto without further obligation or liability on the part of either party hereto.

11.2        Defence Against Action:  Company shall have the right to control the defence and/or settlement of such action and You shall provide reasonable assistance to Company in its defence thereof.   Notwithstanding the foregoing, Company shall have no obligation toward You for any claim arising from the foregoing infringement indemnity if any Service has been used by You other than as authorized by Company and/or as provided herein.

11.3        Disclaimer: THE FOREGOING STATES THE ENTIRE LIABILITY OF COMPANY AND YOUR SOLE REMEDY, FOR INFRINGEMENT OF ANY COPYRIGHT, PATENT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT WITH RESPECT TO ANY SERVICES FURNISHED HEREUNDER.

11.4        Indemnification by You. You shall indemnify and defend Company, at its sole expense, against all liability and expenses, including reasonable attorney fees and costs, in any action or proceeding brought by a third party arising from a claim that (i) the Client Data and/ or (ii) use of the Services in violation of this Agreement and/or Company’s instructions, infringes or misappropriates a duly issued  patent, copyright or trade secret of a third party, provided that Company promptly notifies You in writing of such action, gives You the right to control the defence and/or settlement of such action and provides reasonable assistance to Client in its defence thereof.

12.0        LIMITATION OF LIABILITY.

IN NO EVENT SHALL COMPANY BE LIABLE TO YOU FOR ANY REASON, WHETHER IN CONTRACT OR IN TORT, FOR ANY DIRECT DAMAGES ARISING OUT OF USE OF THE SERVICE OR OTHERWISE, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS RECEIVED FOR THE SPECIFIC SERVICE GIVING RISE TO SUCH LIABILITY DURING THE TWELVE MONTH PERIOD PRECEDING THE INTERPOSITION OF THE CLAIM.

UNDER NO CIRCUMSTANCES WILL COMPANY OR ITS RELATED PERSONS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY.

13.0        TERMINATION.

13.1        Default by Company:  Upon any material breach of this Agreement by Company, You shall have the right to terminate this Agreement and the licence granted hereunder effective on sixty (60) days written notice.  Such termination shall become automatically effective unless the Company shall have cured any material breach prior to the expiration of the sixty (60) day period.

13.2        Default by Client:  Upon any material breach of this Agreement by You, Company shall have the right to terminate this Agreement and the licence granted hereunder effective on sixty (60) days written notice.  Such termination shall become automatically effective unless You shall have cured the same prior to the expiration of the sixty (60) day period. Notwithstanding the foregoing, upon a material breach of the terms and conditions contained in Sections 3.0 (grant of licence) or 8.0 (intellectual property rights), Company shall have the right to terminate this Agreement and the licence granted hereunder effective -upon written notice.  Should such termination occur, You forfeit any of the monies paid to the Company.

13.3        Termination by Mutual Consent:  Company and You may terminate the licence and this Agreement by mutual consent upon such terms as they may be agreed in writing.

13.4        Consequences:    In the event of termination of this Agreement, You shall promptly return to Company all Confidential Information provided by Company in the Your possession. Additionally, You shall cease use of the Service(s) and (iii) certify in writing within thirty (30) days of termination of this Agreement that it has complied with the foregoing. It will be Your responsibility to export any of Your Client Data that You wish to retain, prior to the effective date of termination/expiration of this Agreement. You acknowledge that Client Data entered into the system during the Trial Period may not be retrievable.

13.5        Survival:  Sections 1, 3, 4, 8, 9, 11, 12, 13, 14, and 16 hereof shall survive any termination of this Agreement.

14.0        ASSIGNMENT.

14.1        This Agreement (and the licence granted hereunder) may not be assigned directly or by operation of law without the written consent of the non-assigning party, which consent shall not be unreasonably withheld, except that a party may assign this Agreement (and the licence granted hereunder) to (i) a subsidiary or parent of the assigning party, (ii) a successor corporation related to the assigning party by merger, consolidation, non-bankruptcy reorganization or governmental action, or (iii) a purchaser of substantially all of the assigning party’s assets, provided, however, that in the case of Client, the assignee shall expressly assume in writing all rights, obligations and duties of Client under this Agreement and the purchaser is not in competition with Company.  Any attempt to assign this Agreement in contravention of the preceding sentence is void.  The Client shall give prompt written notice of the assignment to the Company.  This Agreement shall inure to the benefit of and be binding upon the successors and assigns of Company and Client.

15.0            ADDITIONAL MARKETING AND PROMOTIONAL ACTIVITIES.

15.1        Consent: Upon written consent of the other party, You and Company may each use the other party’s trademarks, logos and/or tradenames in its advertising and printed materials in connection with  the benefits arising out of use of the Service.  Such written consent shall not be unreasonably withheld.    Written consent shall not be necessary for use of Your trademarks, logos and tradenames on the Company’s web page.  Each party acknowledges the other party’s exclusive ownership of, or right to use, its own trademarks, logos and tradenames and agrees not to dilute the other Party’s rights in its own trademarks.

15.2.1       Use of Trademark: Any use by You of Company’s trademarks, logos and/or tradenames will be subject to Client clearly displaying an acknowledgment of Company’s ownership of its trademarks, logos and tradenames.

16.0        GENERAL

16.1        Waiver:  The failure of either party to enforce in any one or more instances any of the terms and conditions of this Agreement or its Exhibits shall not be construed as a waiver of future performance of any such term or condition.  Waiver of any term or condition shall only be deemed to have been made if expressed in writing by the party granting such waiver.

16.2        Severability:  If any provision of this Agreement or its Exhibits shall be held by a court of law of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be reformed, construed and enforced to the maximum extent permissible, and the remaining provisions shall remain in full force and effect.

16.2A     Changes: Company shall be entitled to make changes in the content of the Service or to discontinue any Service upon reasonable prior written notice to You.

16.3        Force Majeure:  Neither party shall be liable or deemed to be in default for any delay or failure in performance under this Agreement or its Appendices or interruption of services resulting directly or indirectly from acts of God, civil or military authority, war, riots, civil disturbances, accidents, fire, earthquakes, floods, strikes, lock-outs, labor disturbances, foreign or governmental order, or any other cause beyond the reasonable control of such party.

16.4        Governing Law:  This Agreement and its Exhibits will be governed by, interpreted, and construed in accordance with the substantive laws of the Commonwealth of Massachusetts.

16.5            Binding Arbitration: Without limiting any of the parties rights to seek injunctive relief, any controversy or claim arising out of or relating to this Agreement or the breach of this Agreement, or the respective rights and responsibilities of the parties hereunder shall be settled by binding arbitration in the English language before a sole arbitrator administered by the American Arbitration Association in accordance with its commercial arbitration rules (the “Rules”) and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction.  The arbitration shall be held and the award made in the Commonwealth of Massachusetts.  The decision of the arbitrator shall be final and binding on both parties.  The arbitrator shall be chosen by agreement of the parties from a panel of persons with knowledge of computer software industry practices and contracts.  In the event the parties cannot agree on an arbitrator, the arbitrator shall be selected from the aforementioned panel pursuant to the Rules.  The parties, their representatives and participants and the arbitrator shall hold the existence, content and result of the arbitration in confidence, except to the limited extent necessary to enforce a final settlement agreement or to obtain or enforce a judgment on an arbitrator decision and award, except to the extent disclosure is deemed necessary or advisable in the opinion of the Company General Counsel under any federal or state securities laws.

16.6        Entire Agreement:  This Agreement together with its Exhibits, constitute the entire understanding between the parties, and supersede all prior discussions, representations, understandings or agreements, whether oral or in writing, between the parties with respect to the subject-matter of this Agreement.

16.7        Modifications and Amendments:  Any modification or amendment to this Agreement must be in writing and signed by authorized representatives of both parties.

16.8        Reserved

16.9        Currency:  All amounts are in US dollars.

17.0        NOTICES.

Any notice that is required to be given hereunder shall be in writing and delivered by courier service or mailed by pre-paid registered mail addressed to the parties’ respective addresses.  Any such notice so delivered shall be deemed to have been received by the addressee at the time and date when actually delivered or in any event within ten (10) days after sending in the manner provided herein.  The addresses provided herein may be changed at any time on prior written notice.