SOFTWARE LICENSE AGREEMENT InterStream MPEG Player THIS SOFTWARE LICENSE AGREEMENT ("Agreement") is entered into between INTERSTREAM, INC., a Delaware corporation ("Licensor"), and you, the licensee. LICENSOR'S PROGRAM IS COPYRIGHTED AND LICENSED (NOT SOLD). LICENSOR DOES NOT SELL OR TRANSFER TITLE TO THE LICENSED PROGRAM TO YOU. THIS AGREEMENT IS PROVIDED IN ELECTRONIC FORM WITH YOUR COPY OF THE LICENSED PROGRAM AND MAY BE PRINTED FROM THE PROGRAM IF YOU CHOOSE TO DO SO. 1. License. Licensor grants you a nonexclusive license to use the computer program (in machine-readable form) referred to at the top of this Agreement (the "Licensed Program"), subject to the following terms and conditions. 2. Scope of Rights. This Agreement permits you to: 2.1 At your own facilities at the locations indicated in the License Request Form, install and use the Licensed Program on one or more of your own computers or file servers (for use only on your single computer network indicated in the License Request Form), provided the number of concurrent users of the Licensed Program does not exceed the authorized number of concurrent users indicated in the License Request Form. All use of the Licensed Program is restricted to use for serving the internal needs of your business only; and 2.2 Make one copy of the Licensed Program in machine-readable form, for nonproduction backup purposes only and only for operation on the authorized computer network, provided that Licensor's proprietary legend is included. All rights not specifically granted to you by Licensor in this Agreement are reserved to Licensor. 3. Fees and Payments. You are solely responsible for payment of any taxes (including sales or use taxes, intangible taxes, and property taxes) resulting from your acceptance of this license and your possession and use of the Licensed Program, exclusive of taxes based on Licensor's income. Licensor reserves the right to have you pay any such taxes as they fall due to Licensor for remittance to the appropriate authority. You agree to hold harmless Licensor from all claims and liability arising from your failure to report or pay such taxes. Licensor reserves the right to change its support and maintenance fees on advance notice to you (to apply on a prospective basis only). 4. Support. If you elect to receive support of the Licensed Program from Licensor and pay Licensor the applicable support fees, Licensor shall support the Licensed Program in the manner specified below. However, Licensor offers support only for the most current version of the Licensed Program issued by Licensor from time to time, so you must make sure to obtain and substitute or incorporate all new releases or fixes issued by Licensor pursuant to its support program. Under Licensor's support program Licensor shall provide to you all modifications to the Licensed Program in the form of fixes and further releases that Licensor makes generally available to all end-users. Licensor reserves the option to require the payment of an additional fee if substantial additional functions or improved performance are provided. Such modifications, when delivered, shall become part of the Licensed Program and shall be subject to all the terms of this Agreement. 5. Your Responsibilities. You are responsible for selecting an operator who is qualified to operate the Licensed Program on your own equipment and is familiar with the information, calculations, and reports that serve as input and output of the Licensed Program. Licensor reserves the right to refuse assistance or to charge additional fees if an operator seeks assistance with respect to such basic background information or any other matters not directly relating to the operation of the Licensed Program. The Licensed Program is designed for use with peripheral equipment and accessories not provided by Licensor. Licensor assumes no responsibility under this Agreement for obtaining or providing such equipment. You are also responsible for ensuring a proper environment and proper utilities for the computer or computer network on which the Licensed Program will operate. 6. Proprietary Protection and Restrictions. Licensor shall have sole and exclusive ownership of all right, title, and interest in and to the Licensed Program and all modifications and enhancements thereof (including ownership of all trade secrets and copyrights pertaining thereto), subject only to the rights and privileges expressly granted to you herein by Licensor. This Agreement does not provide you with title or ownership of the Licensed Program, but only a right of limited use. You must keep the Licensed Program free and clear of all claims, liens, and encumbrances. You may not use, copy, modify, or distribute the Licensed Program (electronically or otherwise), or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Licensor. You may not reverse assemble, reverse compile, or otherwise translate the Licensed Program. Your rights may not be transferred, leased, assigned, or sublicensed except for a transfer of the Licensed Program in its entirety to a successor in interest of your entire business who assumes the obligations of this Agreement or any other party who is reasonably acceptable to Licensor, enters into a substitute version of this Agreement, and pays an administrative fee. No service bureau, outsourcing, or time-sharing arrangement is permitted, except as expressly authorized by Licensor. You may permit third parties to access the Licensed Program solely on your behalf for the use authorized under this Agreement provided such third party remains under your direction and control, agrees to comply with the terms of this Agreement and provided you notify Licensor in writing of the identity of such third party prior to allowing such access. You may not install the Licensed Program in any other computer or computer network without Licensor's express authorization obtained in advance. If you use, copy, or modify the Licensed Program or if you transfer possession of any copy, adaptation, transcription, or merged portion of the Licensed Program to any other party in any way not expressly authorized by Licensor, your license is automatically terminated. You hereby authorize Licensor to enter your premises in order to inspect the Licensed Program and related records of usage in any reasonable manner during regular business hours to audit compliance with the terms hereof. You acknowledge that, in the event of your breach of any of the foregoing provisions, Licensor will not have an adequate remedy in money or damages. Licensor shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. Licensor's right to obtain injunctive relief shall not limit its right to seek further remedies. 7. Limited Warranty and Limitation of Liability. Licensor warrants, for your benefit alone, that the media on which the Licensed Program is provided shall be free from defects in materials and workmanship under normal use for a period of thirty (30) days from your receipt of the Licensed Program. As your exclusive remedy for any breach of the foregoing warranty, Licensor shall either repair or replace the Licensed Program media. In the event Licensor does not repair such defect or replace the Licensed Program after it has had a reasonable opportunity to do so, your exclusive remedy shall be the refund of the amount paid as the license fee for the Licensed Program. Licensor shall not be obligated to remedy any defect in the Licensed Program media, if the Licensed Program has been misused or damaged in any respect, or if you have not reported to Licensor the existence and nature of such defect promptly upon discovery thereof. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, LICENSOR DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES WITH RESPECT TO THE LICENSED PROGRAM, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ITS CONDITION, ITS CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, ANY NEGLIGENCE, AND ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE. Specifically by way of example and not limitation, Licensor expressly disclaims and negates any warranty that: (a) the functions performed by the Licensed Program will meet Licensee's requirements or will operate in the combinations that may be selected for use by Licensee or will achieve the results desired by Licensee; (b) the operation of the Licensed Program will be uninterrupted or error free in all circumstances; or (c) any or all defects in the Licensed Program will be corrected. The cumulative liability of Licensor to you for all claims relating to the Licensed Program and this Agreement, including any cause of action sounding in contract, tort, or strict liability, shall not exceed the total amount of all license fees paid to Licensor hereunder. This limitation of liability is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective. Licensor shall have no liability for loss of data or documentation, it being understood that you are responsible for reasonable backup precautions. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY LOSS OF PROFITS; ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; OR ANY CLAIMS OR DEMANDS BROUGHT AGAINST YOU, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DEMANDS. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. 8. Term of Agreement; Termination. Your license of the Licensed Program shall continue on a perpetual basis unless and until you breach any provision of this Agreement. In the event of such breach, this Agreement and the license granted hereunder shall terminate without any further action on the part of Licensor. Upon termination of this Agreement, all rights granted to you will terminate and revert to Licensor. Promptly upon termination of this Agreement for any reason or upon discontinuance or abandonment of your possession or use of the Licensed Program, you must return or destroy, as requested by Licensor, all copies of the Licensed Program in your possession (whether modified or unmodified), and all other materials pertaining to the Licensed Program (including all copies thereof). You agree to certify your compliance with such restriction upon Licensor's request. 9. Binding Arbitration. All disputes, disagreements or other claims between the parties, whether arising in contract, tort, or otherwise, shall be finally settled by binding arbitration in Dallas, Texas before a neutral arbitrator appointed by and acting pursuant to the Commercial Rules of the American Arbitration Association. In no event will the arbitrator(s) have the power to include any element of punitive damages or incidental or consequential damages in the arbitration award. Judgment on the arbitration award in accordance with this Agreement may be entered in any state or federal court of competent jurisdiction. 10. Notice to Government End Users. If the Licensed Program is licensed under the terms of a: GSA contract - use, reproduction or disclosure is subject to the restrictions set forth in the applicable ADP Schedule contract; DOD contract - use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of 252.227-7013; Civilian Agency contract - use, reproduction or disclosure is subject to 52.227-19(a) through (d) and restrictions set forth in this Agreement. 11. Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, other than the conflicts of law provisions thereof. No modification of this Agreement shall be binding unless it is in writing and is signed by an authorized representative of the party against whom enforcement of the modification is sought. References to your use or benefit include any subsidiaries you may own directly or indirectly by more than fifty percent (50%), provided that, to the extent of their use and benefit, they comply with the restrictions herein. Any notices required or permitted under this Agreement shall be in writing and delivered in person or sent by registered or certified mail, return receipt requested, with proper postage affixed. In the event that any of the terms of this Agreement is or becomes or is declared to be invalid or void by any court or tribunal of competent jurisdiction, such term or terms shall be null and void and shall be deemed severed from this Agreement and all the remaining terms of this Agreement shall remain in full force and effect. THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF LICENSOR'S OBLIGATIONS AND RESPONSIBILITIES TO YOU AND SUPERSEDES ANY OTHER PROPOSAL, REPRESENTATION, OR OTHER COMMUNICATION BY OR ON BEHALF OF LICENSOR RELATING TO THE SUBJECT MATTER HEREOF.