GeoPoint On-Demand Developer License Terms and Conditions

In consideration for the mutual promises contained herein, Subscriber (as defined below) and Quova, Inc. (“Quova”) accept and agree to the following terms and conditions:

1  DEFINITIONS:  The following terms shall have the following meanings when used herein, and govern the access to and the use by Subscriber of the no-cost, application developer evaluation subscription service ordered by Subscriber from Quova in the event Quova accepts Subscriber’s application for such subscription:

A: “Agreement” means these Terms and Conditions and the Developer License granted herein.

B: “Documentation” means the applicable guides, service descriptions, technical specifications, and user manuals made available by Quova.

C: “Evaluation Period” means the period commencing on the date Quova issues and provides to Subscriber credentials for Subscriber’s access to the GeoPoint  On-Demand Hosted Web Service hereunder (the “Effective Date” of this Agreement) and ending on the earlier to occur of (i) the first anniversary of the Effective Date, (ii) the termination of this Agreement by Quova in accordance with its terms, or (iii) the establishment of a definitive and binding contractual agreement between the parties for Subscriber’s access to and use of the GeoPoint On-Demand Hosted Web Service for commercial (vis-à-vis development and evaluation) purposes.

D: “GeoPoint On-Demand Hosted Web Service” means the combination of the Postal Code Edition and Confidence Factors, Connection Information and Organization Information Modules of the GeoDirectory Server, together with a subscription to periodic updates of the Information, as web-hosted by Quova.

E: “GeoPoint Data File” means the Quova-proprietary machine-readable file or files containing the Information.

F: “GeoDirectory Server” or “GDS” means the executable program used to access the Information in the GeoPoint Data File.  The GeoDirectory Server includes the Quova application programming interfaces (“APIs”) and a version of the GeoPoint Data File designed specifically to work with the GeoDirectory Server.

G: “Information” means any data extracted or derived from the GeoPoint On-Demand Hosted Web Service, including the geographic location of an IP address, IP networks, information associated with IP networks, and any data that references IP addresses or networks.

H: “Subscriber” means the entity or person identified in the registration information submitted to Quova electronically in applying for the credentials for access to the GeoPoint On-Demand Hosted Web Service that are contemplated hereby.

2  LICENSE RIGHTS GRANT:  Subject to the terms and conditions of this Agreement, Quova grants to Subscriber a limited, personal, non-sublicensable, non-exclusive, non-transferable right to access and use the GeoPoint On-Demand Hosted Web Service for the sole and exclusive purpose of Subscriber’s internal, non-commercial evaluation and testing thereof for the development by Subscriber of one or more applications during the Evaluation Period (the “Developer License”).  Commercial use means either charging, directly or indirectly, end users or other consumers for access, directly or indirectly, to the Information and/or selling, licensing or otherwise providing the Information to end users or any third parties. Subscriber hereby expressly agrees to limit its use of the GeoPoint On-Demand Hosted Web Service and the Information to non-commercial, internal testing and research and development use only and the Developer License granted herein expressly excludes both (i) Subscriber’s use of the GeoPoint On-Demand Hosted Web Service and the Information to facilitate commercial transactions and (ii) Subscriber’s providing of direct access (or offer to provide such direct access) to the GeoPoint On-Demand Hosted Web Service or specific Information to any third party/ies including, without limitation, end users and other clients of Subscriber’s products and services.

3  OWNERSHIP; RESERVATION OF RIGHTS:  Quova retains all right, title and interest (including, without limitation, copyright and database rights) in and to the GeoPoint On-Demand Hosted Web Service and the Information, and to the form and content thereof.  Quova also reserves all rights not expressly granted to Subscriber by this Agreement.  No portion of the GeoPoint On-Demand Hosted Web Service may be copied, reproduced, modified, published, uploaded, posted, transmitted or distributed in any way without Quova’s prior written permission.  Neither the subscription granted to Subscriber by Quova hereunder nor this Agreement or any of its provisions provide Subscriber with any title to or ownership rights or interest in the GeoPoint On-Demand Hosted Web Service or Documentation (or any component of either), but only a right of limited access and use as expressly set forth herein.

4  LICENSE RESTRICTIONS:  Except as expressly provided in the Developer License granted herein and in Section 11(C) (Exceptions to License Restrictions and Deletion Obligations) below, Subscriber may not use either the GeoPoint On-Demand Hosted Web Service or the Information in any of the following ways:

A: Attempt or encourage others to attempt to reverse engineer, disassemble or decompile the GeoPoint On-Demand Hosted Web Service or any components thereof (except as may be expressly permitted by applicable law);

B: Attempt to recreate any of the Information from the GeoPoint On-Demand Hosted Web Service;

C: Other than in accordance with the Documentation supplied by Quova;

D: Other than as authorized in the Developer License and to the extent expressly set forth in the Developer License;

E: Publicly display the Information or in any way provide access to the Information, or use the Information for the benefit of, any other party for any purpose;

F: For commercial purposes that compete with Quova in its present line of business;

G: Archive, cache or temporarily store any portion of the Information (except as expressly set forth to the contrary in the Developer License or in this Agreement); or

H: Knowingly use any Information to personally identify an individual user or use the GeoPoint On-Demand Hosted Web Service in a manner that violates privacy or other applicable laws.

In addition to the foregoing, Subscriber agrees to limit its submissions of queries to the GeoPoint On-Demand Hosted Web Service to both (1) no more than One Thousand (1,000) per day (i.e., each 24-hour period commencing at Midnight, GMT) and (2) no more frequently than two (2) such queries per second. 

5  WARRANTIES; DISCLAIMERS; REMEDIES:

A: Quova Warranties.  Quova represents and warrants to and for the benefit of Subscriber that (i) Quova has all right and authority required to enter into this Agreement and to provide the GeoPoint On-Demand Hosted Web Service to Subscriber and (ii) the GeoPoint On-Demand Hosted Web Service and Information materially will conform to the Documentation therefor.

B: No Other Quova Warranties.  EXCEPT AS PROVIDED IN SECTION 5(A), THE GEOPOINT ON-DEMAND HOSTED WEB SERVICE AND INFORMATION ARE PROVIDED ON AN “AS IS” BASIS. QUOVA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE GEOPOINT ON-DEMAND HOSTED WEB SERVICE AND INFORMATION, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE, AND UNDERTAKINGS.  QUOVA DOES NOT WARRANT THAT THE GEOPOINT ON-DEMAND HOSTED WEB SERVICE AND INFORMATION WILL OPERATE UNINTERRUPTED OR WITHOUT DELAY OR BE ERROR-FREE, OR THAT ALL DEFECTS WILL BE CORRECTED.  QUOVA MAKES NO WARRANTY CONCERNING COMPLETENESS OF ANY RESULTS, DATA OR INFORMATION OBTAINED OR DERIVED THROUGH THE USE OF THE GEOPOINT  ON-DEMAND HOSTED WEB SERVICE OR INFORMATION.  ACCESS TO THE GEOPOINT ON-DEMAND HOSTED WEB SERVICE AND INFORMATION MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.  QUOVA IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR DAMAGE THAT MAY RESULT FROM SUCH PROBLEMS.  Some jurisdictions do not permit the disclaimer of certain warranties, so some of the foregoing may not be applicable to Subscriber.  To the extent that Quova may not disclaim warranties under applicable law, the duration and scope of such warranty will be the minimum possible thereunder.  Subscriber acknowledges that it is not relying on any warranty or representation except those expressly set forth above.

C: Remedies.  Quova’s sole obligation and Subscriber’s exclusive remedy for a breach of the above mentioned warranties will be for Quova to use reasonable efforts to fix the GeoPoint On-Demand Hosted Web Service and Information so that it conforms to the foregoing warranties.  The warranties do not apply to any damage(s) resulting from Subscriber’s misuse, abuse or neglect.

D: Subscriber Acknowledgment.  Subscriber acknowledges that, except as expressly set forth herein to the contrary, the use of the GeoPoint On-Demand Hosted Web Service hereunder is entirely at its own risk. 

6  UPDATES:  Updates to the GeoPoint On-Demand Hosted Web Service will be made available to Subscriber when commercially released at no additional charge(s).  As used herein, “Updates” shall mean all error corrections, bug fixes, modifications, and enhancements of the GeoPoint On-Demand Hosted Web Service as well as periodic updates of the GeoPoint Data File.  

7  CONFIDENTIALITY:

A: Access.  Each party (a “Recipient”) may have access to confidential, proprietary or trade secret information of the other party (the “Disclosing Party”), including, without limitation, the GeoPoint On-Demand Hosted Web Service, the Information and other technology used to provide the GeoPoint On-Demand Hosted Web Service, any and all documentation related to the GeoPoint On-Demand Hosted Web Service (including, without limitation, development or technical specifications, benchmark data, and any and all written, explanatory or technical material, user or reference manuals, information regarding the existence, features and capabilities of the GeoPoint On-Demand Hosted Web Service, etc.), the existence and terms of this Agreement, and the Disclosing Party’s ideas, trade secrets, procedures, methods, systems and concepts, in each case whether disclosed orally or in writing or through any media (the “Confidential Information”). 

B: Obligation of Confidentiality.  Recipient acknowledges that the Disclosing Party’s Confidential Information remains its sole and exclusive property.  Recipient will use Confidential Information solely for the purpose(s) for which it is provided.  Recipient will restrict disclosure of Confidential Information to its employees who have a need to know it, will not disclose Confidential Information to any other party, and will protect Confidential Information in the same way it protects its own Confidential Information of a similar nature, but in no event using less than reasonable measures.  In particular, Subscriber agrees that it will not (1) publish to any third party findings of any evaluation of the GeoPoint On-Demand Hosted Web Service against competitive products or (2) publish to any third party performance information concerning the GeoPoint On-Demand Hosted Web Service, including the results of any benchmark tests, competitive comparison or other evaluation of the GeoPoint On-Demand Hosted Web Service, in each case without prior written notice and pre-approval by Quova.  Further, neither party will make any public announcements concerning the other party or this Agreement.  Neither party will discuss the other party or this Agreement with any third parties or representatives of the press without the other party’s prior consent.

C: Exceptions to the Definition of Confidential Information.  No information will be deemed Confidential Information to the extent that Recipient can conclusively establish that it (1) was publicly available when disclosed to Recipient; (2) was communicated to Recipient by another party without any obligation of confidentiality; or (3) was in the Recipient’s possession free of any obligation of confidentiality when first communicated to Recipient.  Recipient will not be in violation of this Section 7 by making a disclosure in response to a valid order by a court or other governmental body, provided that Recipient provides the Disclosing Party prompt notice of such impending disclosure to permit the Disclosing Party to seek confidential treatment.

D: Entitlement to Injunctive Relief.  Each party acknowledges that money damages would not adequately compensate the other party in the event of a breach by such party of its obligations under this Section 7 and that injunctive relief therefore would be essential for the other party to adequately protect itself hereunder.  Accordingly, each party agrees that, in addition to any other remedies available to the other party at law or in equity, the other party shall be entitled to injunctive and other equitable relief in the event such party is in breach of any covenant or agreement contained in this Section 7.  The parties further agree to waive any requirement for the securing or posting of any bond in connection with the obtaining of any such equitable relief, and that this Section 7(D) is without prejudice to any other right(s) that the parties hereto may have for any failure to perform this Agreement.  The parties acknowledge that because the obligations imposed on them in this Section 7 are special, unique and of an extraordinary character, the making available of equitable remedies (including specific performance and injunctive relief) in this Section 7 is a condition to each party's entering into this Agreement.

E: Survival.  The parties’ obligations under this Section 7 will survive the amendment, expiration or termination of this Agreement.

8  INDEMNIFICATION

A: Infringement Claims.  Quova shall defend at its own expense all third party claims, suits or actions against Subscriber, its subsidiaries and affiliated corporations and related entities and all of their officers, directors, agents, contractors and employees and their successors and assigns (each, an “Indemnitee” and collectively, “Indemnitees”) to the extent that the claim, suit or action is based upon a claim by such third party that the GeoPoint On-Demand Hosted Web Service or Information infringes or misappropriates any U.S. patents, trademarks, copyrights or trade secrets.  Quova will pay those costs and damages finally awarded against Subscriber that are attributable to such a claim, suit or action, or those costs and damages agreed to in a monetary settlement.  Quova shall have no obligation under this Section or otherwise to the extent any such claim is based on (1) any use of the GeoPoint On-Demand Hosted Web Service not in accordance with this Agreement or for purposes not intended hereby, (2) any use of the GeoPoint On-Demand Hosted Web Service in combination with other products not in accordance with this Agreement if that combination causes the infringement, or (3) use or modification of the GeoPoint On-Demand Hosted Web Service by any person or entity other than as permitted by this Agreement.

B: Infringement Claim Remedies.  If the GeoPoint On-Demand Hosted Web Service or Information becomes the subject of an infringement claim, Quova, at its option and expense, may either (1) procure for Subscriber the right to continue using the GeoPoint On-Demand Hosted Web Service or Information, (2) replace or modify the GeoPoint On-Demand Hosted Web Service or Information so that it becomes non-infringing, or in the event that (1) and (2) are not commercially viable, (3) terminate this Agreement.

C: Indemnification Procedures.  Quova’s obligations in this Section 8 are conditioned on Subscriber providing Quova with the following: (i) prompt notice of any claim for which indemnification is sought; (ii) control of the defense and settlement of such claim(s); and (iii) reasonable assistance and cooperation at Quova’s expense.

D: Subscriber Indemnification.  Subscriber agrees to indemnify and hold Quova harmless from and against any and all claims, actions, losses, damages, liabilities, costs and expenses incurred or imposed on Quova arising out of or in connection with Subscriber’s use of the GeoPoint On-Demand Hosted Web Service hereunder, excepting to the extent the foregoing are expressly covered by Quova’s indemnification obligation in Section 8(A) above.  Subscriber’s obligations in this Section 8(D) are conditioned on Quova providing Subscriber with the following: (i) prompt notice of any claim for which indemnification is sought; (ii) control of the defense and settlement of such claim(s); and (iii) reasonable assistance and cooperation at Subscriber’s expense.

9  LIMITATION OF LIABILITY

A: Consequential and Incidental Damages:  NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF PROFIT OR REVENUE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER INCURRED OR SUFFERED AS A RESULT OF UNAVAILABILITY OF THE GEOPOINT  ON-DEMAND HOSTED WEB SERVICE OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF OR SHOULD HAVE FORESEEN THE POSSIBILITY OF SUCH DAMAGES.

B: Overall Limitation:  Each party’s total liability to the other under this Agreement will not exceed the amount of $100.00.  This limitation applies to all causes of action or claims in the aggregate, including, without limitation, breach of contract, breach of warranty, negligence, strict liability, misrepresentation and other torts.  Each party acknowledges that these limitations are reasonable, that they are an essential element of this Agreement and that absent such limitations they would not enter into this Agreement.

C: Exclusions:  The limitations set forth in Sections 9(A) and (B) shall not apply with respect to any damages or losses caused by Subscriber’s breach of the provisions of Section 2 (License Rights Grant) or Section 4 (License Restrictions) above, either party’s breach of Section 7 (Confidentiality) above, or either party’s breach of its respective indemnification obligations under Section 8 (Indemnification) above, or with respect to any amounts, damages or losses awarded in accordance with the provisions of Section 24 (Collection and Attorneys’ Fees) below. 

10  TAXES AND DUTIES: Subscriber shall be responsible for all applicable sales, value-added, use, excise and other such taxes or duties payable in respect of this Agreement.

11  TERMINATION:

A: Termination:  Either party may terminate this Agreement if the other party materially breaches its obligations after the non-breaching party provides thirty (30) days’ advance written notice of the material breach to the other party, unless the other party has cured the breach within such thirty- (30-)day period; provided, however, that any willful unauthorized use, copying, disclosure, distribution or sublicensing of the GeoPoint On-Demand Hosted Web Service, Information or Documentation or any related methods, algorithms, techniques, or processes will be deemed a material breach of this Agreement that cannot be cured.  Either party may terminate this Agreement immediately upon notice to the other if the other party liquidates, ceases to conduct its business or files for bankruptcy.  In addition, Quova retains the option to elect to terminate this Agreement, without cause and for its convenience, upon five (5) business days’ advance notice to Subscriber.

B:  Events upon Termination or Expiration:  Expiration or termination of this Agreement will not relieve the parties of any rights or obligations that accrue prior to expiration or termination.  Upon any expiration or termination, the Developer License (and all licenses) granted hereunder will cease, and Subscriber must immediately stop using and destroy any and all elements and components of the GeoPoint On-Demand Hosted Web Service and the Information in its possession.  Upon such event, Subscriber shall and must delete and purge from both primary and secondary (or other redundant) storage mediums all GeoPoint Data Files, Information, and derived information, electronic or otherwise.  Subscriber shall certify in writing to Quova its compliance with the provisions of this subsection.

C: Exceptions to License Restrictions and Deletion Obligations:  Notwithstanding any provision(s) of this Agreement that may be to the contrary (including, without limitation, the provisions of Section 4 {License Restrictions} and Section 11(B) {Events Upon Termination or Expiration} of this Agreement), the parties hereby agree that Subscriber may use, store and retain such elements of the Information that relate to events that transpired and to use of the GeoPoint On-Demand Hosted Web Service that occurred during the Evaluation Period during the term of this Agreement and for a commercially-reasonable period of time thereafter as required for commercially-reasonable record retention purposes.

12  UPDATES:  Updates to the GeoPoint On-Demand Hosted Web Service will be made available when commercially released at no additional charge(s).

13  COMPLIANCE WITH EXPORT LAWS:  Subscriber agrees that its performance hereunder will conform to all applicable laws, rules and regulations governing the export of technical information.  Subscriber may not export or re-export the GeoPoint On-Demand Hosted Web Service or the Information into any U.S. embargoed country or countries or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’ Denied Persons List or Entity List.  By accessing or using the GeoPoint On-Demand Hosted Web Service, Subscriber represents and warrants that it is not located in any such country or included on any such list.

14  INDEPENDENCE OF ACTION:  It is mutually acknowledged and agreed by both parties that Quova shall be at all times hereunder an independent contractor of Subscriber, all Quova personnel employed or engaged to perform any services on behalf of Subscriber shall be considered employees of Quova and not of Subscriber, and Subscriber shall have no right to control Quova in the conduct of Quova’s activities hereunder.  It further is mutually acknowledged and agreed by both parties that the parties, with respect to one another, are not partners, employees, representatives or agents of, or joint venturers with, one another.  Neither party hereto shall hold itself out as the agent or employee of, or joint venturer with, the other.  Neither party shall have any authority to act on behalf of the other, except to the extent necessary to perform its obligations under this Agreement, and neither shall have the power to bind the other or make any promises or representations on behalf of the other to third parties.  Each party shall bear its own: taxes, as applicable, to the subject of this Agreement, including, without limitation, assuming complete responsibility for all state, federal and local taxes and assessments including, without limitation, income, sales, use, transfer, payroll and similar taxes; insurance obligations (including, but not limited to, workers’ compensation, unemployment compensation, disability, pension and social security insurance and any foreign equivalents and any general liability insurance); obligations with respect to immigration procedures compliance; and obligations with respect to any other financial and related matters, including, without limitation, any necessary licenses and permits; in each case, arising out of its performance of its obligations under this Agreement.

15  ASSIGNMENT: Subscriber may not, by operation of law or otherwise, delegate or otherwise transfer its rights or obligations under this Agreement to any third party without Quova’s prior consent, and any attempt to do so will be void.  The merger, consolidation, sale of all or substantially all of the assets or transfer of a controlling interest of Subscriber is an “assignment” requiring Quova’s consent, which will not be unreasonably withheld, delayed or conditioned; provided, however, that the withholding of such consent shall be deemed to be reasonable in the event that the successor-in-interest to Subscriber’s interests (i) is believed by Quova in good faith to present a commercially-reasonable business, operational, reputational, security, governmental, or regulatory compliance concern to its business interests or (ii) is a competitor of Quova.

16  AGREEMENT:  This Agreement constitutes the entire integrated agreement between the parties hereto with respect to the subject matter hereof.  Except as expressly may be provided herein, this Agreement cancels and supersedes any and all prior agreements, commitments, negotiations, obligations, proposals, representations and understandings, whether oral or written, between the parties respecting the subject matter hereof.  To the degree that either or both of the parties hereto find it convenient to employ their standard form(s) of purchase order or acknowledgement of order in administering the terms of this Agreement, the party may do so but none of the terms and/or conditions printed or otherwise appearing or referenced on such form will be applicable to the license of the GeoPoint On-Demand Hosted Web Service hereunder.  In the case of a conflict between the terms or conditions printed or otherwise appearing on either party’s standard form of purchase order, acknowledgement of order or any other similar document used in administering the terms of this Agreement, the terms and conditions of this Agreement shall govern and any additional terms and/or conditions specified on such form(s) will apply only to the extent that the same are not inconsistent with the terms and conditions set forth herein or concern specific detail with respect to matters such as location and quantity, excepting and only to the limited extent such additional terms and conditions expressly are required by applicable law or governmental regulation to take precedence over the terms and conditions of this Agreement.

17  AMENDMENT:  This Agreement may not be amended, modified or revoked or any of its terms or provisions waived except by written document signed by both parties and making express reference hereto, and any attempt otherwise to amend, modify or revoke this Agreement or waive any of its terms or provisions shall be deemed to be of no force or effect. 

18  NOTICES:  All notices, reports of data and other communications required or permitted to be given under this Agreement or relating to or resulting from this Agreement shall be in writing and shall be delivered by hand or sent by facsimile (with confirmation of receipt) or by email (in the case of notices or other communications to Subscriber), or sent postage prepaid by registered, certified, or express U.S. mail or by reputable overnight courier service (such as FedEx), and shall be deemed given and received when delivered by hand or when sent by facsimile (with confirmation of receipt) or by email, or three days after sent when sent by mail (one business day in the case of express mail), or one business day after sent when sent by overnight courier service, addressed to Quova at Legal at Quova, 401 Castro, Mountain View, CA 94041 and addressed to Subscriber at its email address specified in the registration information submitted by Subscriber when applying for credentials to access to the GeoPoint On-Demand Hosted Web Service that are contemplated hereby, or at such other address as such party may from time to time designate by written notice to the other party as herein provided.

19  BINDING EFFECT:  The terms and provisions of this Agreement shall be binding upon, and shall inure to the benefit of, the parties and their respective permitted assigns, legal representatives and successors in interest.

20  NO THIRD PARTY BENEFICIARIES:  No term or provision of this Agreement is intended to be, or shall be, for the benefit of any person or entity not a party hereto, and no such other person or entity shall have any right or cause of action hereunder.  

21  AMBIGUITIES:  Each party hereto shall be deemed to have participated fully in the drafting, review and revision of this Agreement, and neither party shall be deemed to be the sole drafting party of this Agreement.  Any otherwise applicable rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement.

22  FORCE MAJEURE:  Neither party shall be considered to be in default in the performance of its obligations hereunder or otherwise liable hereunder to the other for any loss, damage, delay or failure to perform caused by acts of God, public enemy, strike, labor dispute, lockout, riot, war, acts of terror, fire, explosion, flood, earthquake, drought, or other similar cause beyond the reasonable control of, and not intentionally caused by, such party; provided that upon the occurrence of such an event, the party seeking to rely on this provision promptly under the circumstances shall give written notice to the other party of the nature and consequence of the cause.

23  ELECTRONIC SIGNATURES:  BY CHECKING THE “I AGREE TO THE QUOVA TERMS OF SERVICE” CHECK BOX DISPLAYED AS PART OF THE REGISTRATION PROCESS, YOU OR THE ENTITY ON WHOSE BEHALF YOU ARE SUBMITTING AN APPLICATION FOR CREDENTIALS TO ACCESS THE GEOPOINT ON-DEMAND HOSTED WEB SERVICE HEREUNDER AGREE TO BE BOUND  BY THESE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT IN AN ONLINE ELECTRONIC FORMAT, WHICH (UPON ACCEPTANCE BY QUOVA INDICATED BY ISSUANCE OF CREDENTIALS TO ACCESS THE GEOPOINT ON-DEMAND HOSTED WEB SERVICE) CONSTITUTE A LEGALLY-BINDING AGREEMENT.  IF YOU DO NOT WISH TO ACCEPT THESE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, PLEASE DO NOT CHECK THE “I AGREE TO THE QUOVA TERMS OF SERVICE” CHECK BOX DISPLAYED AS PART OF THE REGISTRATION PROCESS.

24  COLLECTION AND ATTORNEYS’ FEES:  If any lawsuit, arbitration or other legal or equitable proceeding is filed or  commenced arising out of or related to this Agreement or Subscriber’s use of or access to the GeoPoint On-Demand Hosted Web Service hereunder, the prevailing party shall be entitled to recover from the other party its attorneys' fees, costs and expenses (including the cost for services of in-house counsel), in addition to such other costs and expenses of suit or proceeding as may be allowed by law.

25  CHOICE OF LAW; JURISDICTION; VENUE:  This Agreement, and all questions concerning its validity, construction and performance (including any resulting counterclaims), shall be governed by and construed in accordance with the internal law of the State of California applicable to agreements executed, delivered and performed within such State and without giving effect to the conflict of laws principles of such State.  Any application of the United Nations Convention for the International Sale of Goods expressly is excluded.  Any dispute, claim or controversy arising out of or relating to this Agreement, including its enforcement and interpretation, shall be finally determined by either (i) an action brought in the State and Federal courts with venue in Santa Clara County, State of California to whose exclusive jurisdiction the parties hereby agree and irrevocably consent, and by execution and delivery of this Agreement the parties hereby irrevocably and unconditionally subject themselves to the jurisdiction (both subject matter and personal) of each such court and irrevocably and unconditionally waive to the extent permitted by applicable law: (a) any objection that either party might now or hereafter have to the venue of any such court in any action so instituted hereunder and (b) any claim that any action or proceeding so brought in any such court has been brought in an inconvenient forum (except, in each case, to the extent of the applicability of clause (ii) following) or (ii) in the event Subscriber is a person or entity residing, formed or otherwise conducting its business operations outside of the United States of America, by binding arbitration administered by the Arbitration Rules of the International Chamber of Commerce in Santa Clara County, California, USA, before one (1) arbitrator.  In either case, the language of such proceedings shall be English.  Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction.  Notwithstanding the foregoing clause with respect to possible arbitration, nothing in this Agreement shall limit either party’s right to seek immediate injunctive or other equitable relief whenever the facts or circumstances would permit such party to seek such relief in a court of competent jurisdiction.

26  WAIVER:  If either party fails to enforce or waives (either expressly or by implication) any right or election hereunder or the breach of any term or condition hereof, such action or inaction shall not operate as a waiver of any other right or election or other breach of such term or condition, nor of any part of this Agreement, nor of any other right, at law or in equity, or any other election, or of any claim which each may have against the other arising out of, connected with or related to this Agreement, whether of a similar or dissimilar nature thereto, nor shall such failure to enforce or waiver affect the validity of any provision hereof.

27  SURVIVAL OF PROVISIONS:  The expiration or termination of this Agreement shall not affect those provisions, and the rights and obligations therein, which either: (i) by their terms state or evidence the intent of the parties that the provisions survive the amendment, expiration or termination of this Agreement; or (ii) must survive to give effect to the provisions of this Agreement, including, without limitation, the provisions of this Agreement relating to ownership of intellectual property, confidentiality, disclaimers, warranties, limitation of liability, indemnification, governing law, and this paragraph.

28  SEVERABILITY:  Should any provision of this Agreement be adjudicated as invalid, illegal or unenforceable, it shall be considered severed from this Agreement and this Agreement and its remaining provisions shall remain in full force and effect unless as a result of such invalidity, illegality or unenforceability this Agreement would fail in its essential purpose.

29  CAPTIONS; CONSTRUCTION:  The captions of the Sections hereof are included merely for convenience of reference purposes only and in no way define, limit or describe the scope or intent of this Agreement or any of the provisions hereof.  As used herein, the singular of any term includes the plural, and vice versa, the use of any term is generally applicable to any gender and, where applicable, to a corporation, the word "or" is not exclusive and the word "including" is not limiting whether or not non-limiting language (such as "without limitation" or "but not limited to" or words of similar import) is used with reference thereto.

30  CAPACITY; AUTHORITY:  Subscriber acknowledges that it is required to complete a registration process. Subscriber certifies, represents and warrants to Quova that the information that is provided on behalf of Subscriber in the registration process is true, accurate, complete, current, and that it belongs to Subscriber or the party registering on Subscriber’s behalf.  Subscriber certifies to Quova that the individual registering on its behalf is at least 18 years old and has the legal capacity to form a binding contract under the law of the State of California.  The parties each represent and warrant to each other that each has the full right and authority to enter into, deliver and perform its obligations under this Agreement and all documents and instruments and transactions contemplated hereby or incidental hereto.  It is agreed and warranted by the parties that the individuals entering into this Agreement on behalf of the respective parties are authorized to bind to such an agreement the party on whose behalf such individual has acted.  No further proof of such authorization is or shall be required.

31  MARKETING:  In the event Subscriber elects to provide Quova with the Website URL address(es) of Subscriber or its application(s) as part of the registration information submitted by Subscriber when applying for credentials to access to the GeoPoint On-Demand Hosted Web Service that are contemplated hereby, Subscriber hereby grants to Quova the right to use, in accordance with Subscriber’s customary and reasonable policies and procedures concerning such use(s), Subscriber’s name, trademarks, web site URL address(es), and logos for marketing purposes as part of a general or illustrative list on Neustar’s or Quova's web site (or in Neustar’s corporate, promotional and marketing materials) of developers and their applications who have made use of the GeoPoint On-Demand Hosted Web Service; e.g., an “Application Gallery”.  Quova will neither (i) acquire any right, title or interest in or to the name, trademarks, domain name, or logos of Subscriber, except as herein expressly provided; nor (ii) impugn, contest, deny or challenge, or assist in any challenge of, the validity of Subscriber’s trademarks or Subscriber’s rights in and to its own name, trademarks, domain name, or logos.  Any rights in Subscriber’s trademarks not expressly licensed herein are reserved by Subscriber, and all use thereof by Quova shall accrue to the benefit of the trademark owner. Nothing contained herein shall be deemed to grant Quova any right, title or interest or to Subscriber’s trademarks, other than the license expressly granted herein.  As between the parties, each party acknowledges that the other is the sole and exclusive owner of its own name, trademarks, domain name, and logos.

32  GOVERNMENT SUBSCRIBERS:  The GeoPoint On-Demand Hosted Web Service, the GeoDirectory Service, the GeoPoint Data File and all Information contained therein are “commercial items” as defined in 48 C.F.R. 2.101.  Consistent with 48 C.F.R. 12.211 and 48 C.F.R. 12.212, such commercial items are provided to any U.S. Government End User(s) only as Commercial Items and with only those rights and licenses set forth herein and subject to the restrictions set forth in this Agreement.  All Government End Users acquire the License with only those rights expressly set forth herein. 

In accordance with the tailoring provisions of FAR 12.302, this Agreement amends certain provisions of FAR 52.212-4 as set forth herein, to the extent such provisions may be so tailored or amended in accordance with applicable law and government regulation.  To the extent the foregoing tailoring or amendment is so permitted, the provisions of this Agreement shall take precedence over any otherwise applicable and conflicting or inconsistent provisions of the documentation between the parties and any provisions of the FAR that may be referenced therein.