Camera Bits, Inc.
Photo Mechanic Enterprise
Master License Agreement

This Master License Agreement (“Agreement”) governs the use of the Software (defined below) by the Licensee identified in the applicable Order Form. By entering into an Order Form with Camera Bits, Inc., an Oregon corporation, located at 472 S. 1st Ave., Hillsboro, OR 97123 (“Camera Bits”) or downloading or otherwise accessing the Software, Licensee is bound by the terms of this Agreement.

1.0 General. This Agreement establishes the general terms and conditions with respect to Camera Bits’ provision of Software to Licensee. This Agreement, together with all Order Forms and other documents incorporated into the Agreement by reference are, collectively, the “Agreement.”

1.1. Order Forms. The Software to be provided, and any additional Service-specific terms and conditions, will be set forth in a separate document, or documents, as applicable, governed by this Agreement (“Order Form”). Licensee’s execution of an Order Form constitutes a binding purchase agreement for the items specified in such Order Form. To the extent any terms and conditions of this Agreement conflict with the terms and conditions of an Order Form, the terms and conditions of the Order Form shall control.

1.2. Definitions.
(i) “Software” means the proprietary software identified in the applicable Order Form(s), in object code format, including any Updates provided to Licensee pursuant to this Agreement.
(ii) “Updates” means any updates, bug fixes, patches, or other error corrections to the Software that Licensor generally makes available free of charge to all licensees of the Software.
(iii) “Technical Documentation” means user instructions, release notes, manuals, and online help files that describe the operation of the Software in the form generally made available to customers.
(iv) “Authorized User” means an employee or contractor of Licensee who Licensee permits to access and use the Software in accordance with this Agreement.
(v) “Licensee Content” means photos, images, and other content that Licensee uploads or imports in connection with the Software, including source data, location data, and other keywords, metadata, and information associated with such photos, images, and other content.
(vi) “Perpetual License” means a license that Licensee has purchased and that provides perpetual access rights to the then-existing Software, subject to Licensee’s compliance with this Agreement.
(vii) “Annual License” means a license that Licensee has purchased and that provides access rights to the Software for the license term specified in the Work Order, subject to Licensee’s compliance with this Agreement.

2.0 License.

2.1. License Grant. Subject to and conditioned on Licensee’s payment of fees and compliance with the terms and conditions of this Agreement, Camera Bits hereby grants Licensee a non-exclusive, non-sublicenseable, and non-transferable license during the Term to: (i) use the Software solely for Licensee’s internal business purposes, up to the number of Authorized Users set forth in an Order Form; and (ii) use and make a reasonable number of copies of the Technical Documentation (defined below) solely for Licensee’s internal business purposes in connection with Licensee’s use of the Software. The total number of Activations will not exceed the number set forth in the Order Form, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the license fees. Camera Bits will provide Licensee access to install Software in accordance with the applicable Order Form and the Technical Documentation. Licensee will host and access the Software through Licensee’s computer equipment, hardware, software, communications systems, network, and other infrastructure (“Technical Infrastructure”). Licensee is solely responsible for obtaining and maintaining, at its own expense, all equipment needed activate and operate the Software, including, without limitation, internet access and adequate bandwidth for Activation (defined below). Licensee acknowledges and agrees that Camera Bits does not monitor or evaluate Licensee Content transmitted through the Software, and Camera Bits shall not be responsible for the content of any Licensee Content. Licensee shall use the Software exclusively for authorized and legal purposes and consistent with all laws, rules, and regulations (“Applicable Law”) in relation to the Software and performance under the Agreement.

2.2. Activation. The Service uses an encrypted and unique identifier from the hardware on which the Software is installed (“Machine ID”) to authenticate a license key that contains flags to define the capabilities accessible by the Authorized User (“License Key”). The license is activated when an Authorized User registers the Software and is accepted by the Camera Bits licensing server (“Activation”). Camera Bits grants to Licensee one “Seat” license for each individual Activation identified by a Machine ID. A Seat license may be transferred to another machine by using the Software to deactivate the current Seat license (“Deactivation”) and completing the Activation process on another machine.

2.3. Restrictions on Use. Licensee shall not (i) sell, resell, distribute, host, lease, rent, license, or sublicense, the Software or any portion thereof; (ii) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Software or any portion thereof (except and only to the extent that Licensee may be permitted under applicable law to decompile only in order to achieve interoperability with the Software); (iii) write or develop any derivative works based upon the Software; (iv) modify, adapt, tamper with, or otherwise make any changes to the Software; (v) frame or mirror any materials Camera Bits provides or posts in connection with the Software; or (vi) remove or alter any of Camera Bits’ copyright notices or trademarks. CERTAIN PHOTO MECHANIC FEATURES ARE NOT INTENDED OR SUITABLE FOR USE, AND YOU MAY NOT USE PHOTO MECHANIC, IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OF, ERRORS OR INACCURACIES IN, OR INTERCEPTION OF, THE USER DATA COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT, OR WEAPONS SYSTEMS.

2.4. EULA. Before accessing the Software, each Authorized User must accept the End User License Agreement, available at http://www.camerabits.com/photo-mechanic-enterprise/enterprise-end-user-license-agreement/.

2.5. Licensee Content. Licensee retains all ownership of, is solely responsible for, all Licensee Content. Camera Bits takes no responsibility and assumes no liability for any Licensee Content.

2.6. Feedback. In the event Licensee submits or posts any creative suggestions, proposals, or ideas about Camera Bits’ products and services (“Feedback”), Licensee agrees that such submissions will be automatically treated as non-confidential and non-proprietary. Licensee hereby grants to Camera Bits a royalty-free, perpetual license to use, without any attribution or compensation to any party (including Licensee), any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever.

2.7. Third-Party Products. The Software may reference, allow access to or use third-party systems, software, or services (“Third-Party Products”) solely as a convenience to Licensee. To the extent that the Software contains or provides access to any Third-Party Products, the Software is not endorsing or making any representations or warranties as to such system, software, or service. Third-Party Products are subject to their own license terms. Camera Bits is not responsible for any Third-Party Products.
2.8. Updates. Any Updates to the Software are made available at the discretion of Camera Bits and subject to Licensee’s timely payment of all applicable fees. Camera Bits reserves the right to make Updates to the Software. The terms of this Agreement apply to any Updates made generally available for Authorized Users.

3.0 Ownership.

3.1. Ownership of Software and Documentation. Licensee acknowledges that, as between Licensee and Camera Bits, Camera Bits owns all right, title, and interest, including all intellectual property rights, in and to the Software and Technical Documentation. With respect to Third-Party Products, the applicable third-party licensors own all right, title and interest, including all intellectual property rights, in and to the Third-Party Products.

3.2. Ownership of Licensee Content. Camera Bits acknowledges and agrees that, as between Licensee and Camera Bits, Licensee owns all right, title, and interest, including all intellectual property rights, in and to the Licensee Content.

4.0 Warranty. To the extent permitted by law, this Warranty (“Warranty”) and remedies set forth in this section are exclusive and in lieu of all other warranties, remedies, and conditions, whether oral or written, and whether express, implied, or statutory.

4.1. Camera Bits Warranty. Camera Bits warrants to Licensee (i) the Software, if used in accordance with the Technical
Documentation and the terms of this Agreement, will perform materially as described in the Technical Documentation for 90 days after installation (“Warranty Period”); and (ii) Camera Bits will not design its systems to include any “back door,” “Trojan horse,” “worm,” “virus,” “preventative routines,” or other similar computer software routines. THE FOREGOING WARRANTIES DO NOT APPLY TO, AND CAMERA BITS STRICTLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO, ANY THIRD-PARTY PRODUCTS. If, during the Warranty Period, any Software fails to comply with this warranty, Camera Bits shall, subject to Licensee’s promptly notifying Camera Bits in writing of such failure, at its sole option, either: (i) repair or replace the Software, provided that Licensee provides Camera Bits with all information Camera Bits reasonably requests to resolve the reported failure, including sufficient information to enable the Camera Bits to recreate such failure; or (ii) refund the fees paid for such nonconforming Software, subject to Licensee’s ceasing all use of and, if requested by Camera Bits, returning to Camera Bits all copies of the Software. The remedies set forth in this Section are Licensee’s sole and exclusive remedies and Camera Bits’ sole liability under the limited warranty set forth in this Section 4.1.

4.2. Licensee Warranties. Licensee represents and warrants that: (i) Licensee and Authorized Users are authorized to provide all Licensee Content and that all Integrations requested by Licensee are authorized; (ii) Licensee’s and Authorized Users’ use of the Software and provision of Licensee Content will comply with all Applicable Laws.

4.3. Mutual Warranties. Each party represents and warrants the following: (i) the execution, delivery, and performance of this Agreement has been and shall be duly authorized by the executing party; (ii) the executing party’s performance of its obligations will not conflict with, result in a breach of, or constitute a default under any other material agreement to which that party is bound; and (iii) the executing party is in material compliance with all Applicable Laws with regard to its obligations under the Agreement.

4.4. Disclaimer of Warranties. THE FOREGOING LIMITED WARRANTY IS THE ONLY WARRANTY MADE BY CAMERA BITS AND STATES THE SOLE AND EXCLUSIVE REMEDIES FOR A BREACH OF WARRANTY OR CONDITION. EXCEPT FOR THE LIMITED WARRANTY PROVIDED IN SECTION 4.1, THE SOFTWARE IS PROVIDED “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND, AND CAMERA BITS DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, WITH RESPECT TO THE SOFTWARE, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, AND NONINFRINGEMENT. CAMERA BITS DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE WITHOUT DELAY, ERROR FREE, OR UNINTERRUPTED, THAT ANY BUGS OR DEFECTS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE WILL BE COMPATIBLE WITH LICENSEE’S HARDWARE OR WITH THIRD-PARTY SYSTEMS, SOFTWARE, OR SERVICES.

4.5. Results and Effort. Licensee understands and agrees work product and results from use of the Software may vary, and that performance, accuracy, and/or satisfactory quality are dependent on factors such as the features and quality of the camera or other photo capture device, Licensee’s effort, experience and knowledge, and other extraneous factors.

5.0 Fees and Payment.

5.1. Fees. Fees are set forth in the applicable Order Form and are based on the applicable Subscription Metrics. All fees are in United States dollars and are non-refundable and non-cancelable, except as expressly provided in this Agreement. All invoices and fee increase notices from Camera Bits shall be sent via email to the email address indicated in the applicable Order Form, unless otherwise specified.

5.2. Payment. All payment obligations will be invoiced to Licensee and shall be due 30 calendar days following the invoice date. Except as otherwise expressly specified in the Order Form, Licensee shall send such payment to the address included on the invoice, and such payments shall be made in United States dollars. Interest accrues on past-due balances until paid at the lesser of (i) 1.5% per month; and (ii) the highest rate allowed by law. Licensee shall reimburse Camera Bits for expenses incurred, including interest, court costs, and reasonable attorneys’ fees, in collecting amounts due to Camera Bits that are not under good faith dispute by Licensee.

5.3. Taxes. Except for any taxes on Camera Bits’ net income, all fees for the Software exclude any direct or indirect taxes, levies, duties, or similar governmental assessments, including value-added, use, or withholding taxes (“Taxes”). Licensee is responsible for paying all Taxes associated with Licensee’s purchases under any Order Form.

6.0 Term and Termination.

6.1. Term. The term for each instance of the Software purchased (“Initial Term”), and any renewal rights or extensions (each a “Renewal Term”), are described in the applicable Order Form (collectively, “Term”).
6.2. Suspension for Non-Payment. If any fees (which are not disputed by Licensee in good faith) are more than 30 calendar days past due, Camera Bits will have the right, in addition to all other rights and remedies available to it, to terminate this Agreement or any Order Form.

6.3. Termination. The Agreement may be terminated (i) by either party if the other party materially breaches the Agreement and does not cure the breach within 30 calendar days after receiving notice from the non-breaching party; (ii) if the other party becomes insolvent (generally unable to pay its debts as they become due) or the subject of a bankruptcy, conservatorship, receivership, or similar proceeding, or makes a general assignment for the benefit of creditors.

6.4. Effect of Termination.

(i) Perpetual Licenses. Upon termination or Licensee’s failure to remit annual maintenance fees under Section 6.2, Licensee will no longer have access to Updates or Support provided under the Agreement. However, so long as Licensee has fully paid the initial costs for the Perpetual License, Licensee may continue to use the then-current version of the Software present on the Authorized Users’ Activated Machine ID, without ongoing Support or Updates. Any access of the Software after termination shall be subject to the terms of the Agreement, which, by their nature, shall survive termination.
(ii) Term Licenses. Where Licensee has purchased a Term License, after termination or where Licensee fails to remit payment in accordance with the terms of Section 6.2 of the Agreement, Licensee shall no longer have access to the Software, Updates, or Support provided by Camera Bits.

7.0 Confidentiality.

7.1. Confidential Information. “Confidential Information” means all proprietary information disclosed to or accessed by Licensee relating to Camera Bits’ business, in whatever form or medium (whether or not specifically marked or otherwise identified as “Confidential” or “Proprietary”) including information related to (i) business operations and strategies, cost, pricing, profit, production, forecast and other accounting, economic and financial data; (ii) all data, concepts and information relating to the design, manufacturing, or marketing of Camera Bits products; and (iii) information that Camera Bits must keep confidential as result of obligations to third parties. Confidential Information does not include any information that Licensee can prove through written records: (w) was independently developed by Licensee without reference to the Confidential Information, and before the date Licensee received the Confidential Information; (x) is or becomes part of the public domain through no fault of Licensee (except for Personal Information); (y) was already known by Licensee at the time of disclosure; or (z) is approved by Camera Bits, in writing, for release.

7.2. Non-Use, Non-Disclosure, and Protection. Licensee will not use Confidential Information except as permitted under this Agreement. Licensee will not disclose Confidential Information to any nonparty without Camera Bits’ prior written consent, other than to Licensee’s employees and approved subcontractors who (i) need to know the Confidential Information, and (ii) are bound by confidentiality and use restrictions that are at least as restrictive as those described in this Agreement. Licensee will, at a minimum, exercise the same degree of care in protecting Camera Bits’ Confidential Information as it uses to protect its own Confidential Information. Licensee shall safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and no less than a reasonable degree of care. Licensee shall promptly notify Camera Bits of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further use or disclosure. Licensee will comply with all applicable laws, rules and regulations in connection with any use, transfer, communication, remote access or storage of Confidential Information.

7.3. Return of Confidential Information. Upon expiration or termination of this Agreement for any reason, or within 7 days after Camera Bits’ request, Licensee will return, or destroy and certify the destruction of, all copies of documents and other tangible material embodying or containing Confidential Information.

7.4. Subpoenas. Licensee agrees that if Licensee or any employee or agent is served with any subpoena or other compulsory judicial or administrative process calling for production or disclosure of Confidential Information, Licensee will immediately notify Camera Bits so that Camera Bits may take such actions as it deems necessary to protect its interests.

7.5. Duration. Licensee’s obligation to maintain the confidentiality and security of the Confidential Information remains even after termination of this Agreement and continues for so long as such Confidential Information remains confidential.

7.6. No License. Camera Bits retains its entire right, title, and interest in and to all Confidential Information, and no disclosure of Confidential Information hereunder will be construed as a license, assignment or other transfer of any such right, title, and interest to Licensee or any other person.

7.7. Remedies. Licensee acknowledges that breach of this paragraph will cause irreparable harm to Camera Bits and, in that event, in addition to other remedies provided by applicable law, Camera Bits will be entitled to immediately seek a temporary restraining order or preliminary injunction enforcing this agreement.

8.0 Indemnification.

8.1. By Licensee. Licensee will indemnify and defend Camera Bits and its officers, directors, employees and agents and their successors and assigns from any loss, liability, cost or expense (including legal fees and costs) (“Losses”) directly or indirectly arising out of or in connection with any claim, suit, or proceeding (“Claim”) by a nonparty to the extent arising out of or related to any: (i) breach of this Agreement; (ii) infringement, misappropriation or other violation of any person’s intellectual property right; (iii) fraud, gross negligence or willful misconduct by Licensee; (iv) violation of Applicable Law by Licensee; or (v) bodily injury, death or damage to property caused by the negligence or willful misconduct of Licensee, including its employees or agents.

8.2. By Camera Bits. Camera Bits will indemnify and defend Licensee and its officers, directors, shareholders, employees and agents from and against all Losses arising out of any claim by a nonparty to the extent it is based on or arising from any: (i) fraud, gross negligence or willful misconduct by Camera Bits; (ii) violation of Applicable Law by Camera Bits; or (iii) claim that the Software or Technical Documentation, or any use of the Software or Documentation in accordance with this Agreement, infringes or misappropriates such third party’s U.S. intellectual property rights, provided that Licensee promptly notifies Camera Bits in writing of the claim, cooperates with Camera Bits, and allows Camera Bits sole authority to control the defense and settlement of such claim.
(i) If such a claim under Section 8.2(iii) is made or appears possible, Licensee agrees to permit Camera Bits, at Camera Bits’ sole discretion, to (A) modify or replace the Software or Technical Documentation, to make it non-infringing, or (B) obtain the right for Licensee to continue use. If Camera Bits determines that none of these alternatives is reasonably available, Camera Bits may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Licensee and refund any prepaid amounts to Licensee promptly after such termination. THIS SECTION 8.2 SETS FORTH LICENSEE’S SOLE REMEDIES AND CAMERA BITS’ SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR TECHNICAL DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. Section 8.2(iii) will not apply to the extent that the alleged infringement arises from: (A) use of the Software in combination with data, software, hardware, equipment, or technology not provided by Camera Bits or authorized by Camera Bits in writing; (B) modifications to the Software not made by Camera Bits; (C) use of any version other than the most current version of the Software or Documentation delivered to Licensee; or (D) Third-Party Products.

9.0 Limitation of Liability. THE FOLLOWING LIMITATIONS SHALL NOT APPLY TO (i) BREACHES OF CONFIDENTIALITY OBLIGATIONS; (ii) VIOLATIONS OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; OR (iii) (iv) PAYMENT OF FEES. TO THE MAXIMUM EXTENT PERMITTED BY LAW:

9.1. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER, WHETHER UNDER THEORY OF CONTRACT, TORT, OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS, OR LOST DATA), WHETHER FORESEEABLE OR NOT, AND WHETHER OR NOT SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.2. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY’S AGGREGATE CUMULATIVE LIABILITY TO THE OTHER IN CONNECTION WITH THE AGREEMENT SHALL NOT EXCEED THE AGGREGATE CONTRACT VALUE FOR THE ONE (1) YEAR PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES.

10.0 Miscellaneous.

10.1. Disputes. The rights and liabilities of the parties arising out of or relating to this agreement will be governed by the laws of the State of Oregon, exclusive of choice of law remedies. Any litigation between the parties will be conducted exclusively in state or federal courts in Multnomah County, Oregon. The prevailing party in any litigation arising out of or relating to this agreement will be entitled to recover all reasonable attorneys’ fees and other expenses (in addition to statutory “costs” of litigation), including attorneys’ fees and expenses in connection with any trial, appeal, or petition for review.

10.2. Commercial Item. The Software and any accompanying Technical Documentation and related software were developed by Camera Bits and its suppliers at private expense and are deemed to be a “commercial item,” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Use, duplication, and disclosure by civilian agencies of the U.S. Government will be in accordance with FAR 52.227-19(c) or other agency data rights provisions, as may be applicable.

10.3. Notices. All notices under this Agreement will be in writing. Each notice will be deemed to have been received by the party to which it was addressed: (i) when delivered if delivered personally, (ii) when received by the addressee if sent by overnight courier, (iii) on the fifth business day after the date of mailing if sent by certified mail, or (iv) on the date sent by email if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient.

10.4. Assignment; Binding Effect; Severability. This Agreement may not be assigned or otherwise transferred by either party without the prior written consent of the other, which will not be unreasonably withheld; provided, however, that either party may assign in connection with a merger or sale of all or substantially all of its assets or to a company controlling, controlled by, or under common control with it. If any term or provision of this Agreement is deemed invalid or unenforceable, the remainder of this Agreement will be valid and enforced to the fullest extent permitted by law.

10.5. Entire Agreement; Amendment; Waiver. This Agreement including all Order Forms and exhibits, constitutes the entire understanding of the parties with respect to its subject matter and supersedes all prior agreements and understandings of the parties. No modification, change, amendment, or any waiver of rights with respect to this Agreement will be binding unless in writing signed by both parties. No waiver of any violation or nonperformance of this agreement in one instance will be deemed to be a waiver of any subsequent violation or nonperformance. In the case of any conflict between this Agreement and any Order Form, the terms of the Order Form will control, but only with respect to that particular Order Form and only if the Order Form references the provision of this Agreement that the Order Form intends to supersede.