License Agreement
 

This Non-Exclusive License Agreement ("Agreement") is between Digital Paths LLC, a privately owned corporation of the state of California, hereinafter referred to as "Digital Paths" and the Purchaser.

1. Acceptance. The delivery of the packaged product to the Purchaser by Digital Paths constitutes an offer to enter into this Agreement. By installing this product, purchaser accepts this Agreement and all the terms and conditions contained therein.

2. Defined Terms. The terms "Agreement", "Digital Paths" and "Purchaser" shall have the meanings indicated above. As used herein, the following terms shall have the following meanings: "Software" shall mean the Digital Paths Palm OS application. "Use" shall mean the use of the Software solely in connection with accessing content on the World Wide Web, and the maintaining of databases necessary to the software's operation.

3. Grant of License. Digital Paths hereby grants to Purchaser a non-exclusive license solely to Use the Software on one handheld computer and one desktop computer respectively. Any other use of the Software is expressly forbidden.

4. Term. This Agreement shall be for an indefinite term.

5. Maintenance and Upgrades. Digital Paths shall have no obligation pursuant to this Agreement to either maintain or upgrade the Software.

6. Confidentiality. The Purchaser hereby acknowledges and agrees that the Software in whatever form is proprietary and confidential and shall not be copied, loaned, dis-assembled or otherwise disclosed by Purchaser to any third party without the express prior written consent of Digital Paths.

7. Title to Intellectual Property Rights. All copyright, patent, trademark, trade secret, confidential information and other intellectual and proprietary rights in the Software and all derivative works thereof are and shall remain the property of Digital Paths.

8. Indemnification by Purchaser. Purchaser agrees to indemnify, defend and hold Digital Paths harmless from and reimburse Digital Paths on demand for any claim, demand, action, liability, damage, loss, cost or expense, including reasonable attorneys fees, brought against, made upon, or incurred by Digital Paths because of or arising out of any act or omission (including without limitation any breach hereof) of Purchaser, its officers, directors, employees, subcontractors, dealers or principals. The indemnification provided for this section shall survive the termination of this Agreement.

9. Exclusion of Incidental and Consequential Damages. Independent of, separable from and to be enforced independently of any other enforceable or unenforceable provision of this Agreement, neither party shall be liable to the other (nor to any person claiming rights derived from the rights of said other party) for incidental, consequential, special, punitive, or exemplary damages of any kind, including loss profits, loss of business or other economic damage, and further including any injury to property, as a result of breach of any term of this Agreement, regardless of whether the other party was advised, had reason to know or in fact knew of the possibility thereof. The parties hereto acknowledge that the foregoing sentence reflects an informed voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement, that such voluntary risk allocation was a material part of the bargain between the parties, and that the economic and other terms of this Agreement were negotiated and agreed to by the parties in reliance on such voluntary risk allocation.

10. Disclaimers. Digital Paths disclaims any and all warranties, conditions, or representations (express or implied), oral or written (with respect to any and all goods or services provided pursuant to this Agreement including any and all warranties or conditions of title, non-infringement, merchantability, or fitness or suitability for any particular purpose (whether or not Digital Paths knows, has reason to know, has been advised, or is otherwise in fact aware of any such purpose), whether alleged to arise by law, by reason of custom or usage in the trade, or by course of dealing.

11. Attorney's Fees. The parties agree that if it be determined by any court that any party has failed to perform its obligations herein, then the prevailing party or parties shall be entitled to recover reasonable attorney's fees, court costs and other reasonable expenses incurred in the enforcement of the rights and obligations set forth in this Agreement or in a claim for damages based on any breach of this Agreement.

12. Choice of Law. The parties agree that this Agreement is to be construed and interpreted according to the laws and statutes of the State of California or to the extent Federal pre-emption has occurred, by the laws and statutes of the United States, and that exclusive jurisdiction and venue for all actions hereon shall be vested with the courts of Orange County, California.

13. Entire Agreement. This Agreement constitutes the sole and only Agreement between the parties hereto regarding this transaction. Any prior agreements between the parties regarding this transaction and not expressly set forth herein are null and void.

14. No waiver of any breach of any of the provisions of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or other provisions hereof and no waiver shall be effective unless made in writing and signed by an authorized representative of the party making said waiver.

15. In the event that any provision of this Agreement shall be held to be illegal, or otherwise unenforceable, such provision shall be severed and the entire Agreement shall not fail on account thereof and the balance of the Agreement shall continue in full force and effect provided, however, that if the severing of such provision results in a material alteration of this Agreement, the remaining provisions of this Agreement shall be adjusted equitably so that no party benefits disproportionately.

16. Digital Paths reserves the exclusive right to and control of the use of its name, symbols, trademarks or servicemarks presently existing or hereafter established. Nothing in this Agreement shall be construed to grant any rights for the use of same to Purchaser.

17. This Agreement shall governed by and construed in accordance with the laws and statutes of the State of California, or to the extent federal preemption has occurred, by the laws and statutes of the United States of America.

18. This Agreement may not be amended or modified in any manner except by written agreement signed by both parties.

DPWeb License Agreement