LICENSE TO INCORPORATE PMODE/W DOS EXTENDER IN APPLICATIONS This Agreement is made and entered into on ("Today's Date"), by and between Thomas Pytel and Charles Scheffold (Ryan Cramer is the agent), ("Owner"), located at 8300 Riding Ridge Place, McLean, VA 22102, Phone: (703) 448-6923. and __________________________________________________________ ("Developer"), located at _________________________________________________________________. BACKGROUND A. Owner is the creator and owner of all rights to PMODE/W as identified in Definition A, or an authorized agent thereof. B. Developer intends to develop any number of Applications, and in connection therewith desires to use and incorporate PMODE/W within Developer's Applications. C. Owner is willing to grant Developer the right to incorporate PMODE/W within Developer's applications, and PMODE/W as so incorporated world-wide. NOW THEREFORE, the parties hereby agree as follows: 1. DEFINITIONS. (a) PMODE/W is the software comprising the PMODE for WATCOM C/C++ DOS Extender ("PMODE/W"), Copyright 1995, Charles Scheffold and Thomas Pytel, including all subsequent versions thereof provided to Developer pursuant to this Agreement. (b) An Application is any computer program or set of computer programs that executes on IBM-PC compatible computers (eg. database, computer game, etc...) An Application may not be a DOS Extender. That is, it must not have the same purpose as, or compete directly with, PMODE/W. (c) To incorporate PMODE/W into an Application means to include the PMODE/W binary code as part of any and all programs included in the Application. 2. LICENSE. (a) Rights Granted to Developer. Owner grants Developer a perpetual, non-exclusive, paid-up license and right to; (1) incorporate PMODE/W within any and all of Developer's Applications. (2) market, promote, sell, license, and/or distribute copies of PMODE/W as part of Developer's Applications, both direct to end users and indirectly through distributors, dealers, resellers, agents, and other third parties. (b) Rights Reserved to Owner. Developer acknowledges Owner's representation that PMODE/W is the property of Owner, and, that Developer has no rights in the foregoing except those expressly granted by this Agreement. Nothing herein shall be construed as restricting Owner's right to sell, lease on a non-exclusive basis, license, modify, publish, or otherwise distribute PMODE/W, in whole or in part, to any other person. (c) No Unbundled Distribution. Developer shall not distribute or transfer in any way a copy of all or any part of PMODE/W separate and apart from the Developer's Applications. (d) License is non-transferable. Developer has no right to sell, lease, give, or in any other way transfer the rights granted it in this Agreement to any other company, person, or any other legal entity. (e) Proprietary Rights. Developer shall not modify, reverse engineer, reverse assemble, or reverse compile any part of PMODE/W. 3. OWNERS DELIVERY OBLIGATIONS. Owner will deliver a copy of the latest version of PMODE/W to Developer immediately following the execution of this Agreement. Owner will provide Developer with a copy of PMODE/W on a master diskette or in another mutually agreeable computer readable form that can be used by Developer. Any subsequent releases of PMODE/W shall be made available to the Developer at the Developer's request at no additional cost (usually by ftp or email). 4. OWNER'S WARRANTIES. (a) Authority. Owner represents that it has the right and authority to enter into this Agreement and to grant to Developer the rights to PMODE/W granted in this Agreement. (b) Non-infringement. Owner warrants to Developer that the incorporation and use PMODE/W within Applications will not infringe upon or misappropriate the property rights of any third party. (c) DISCLAIMER. THE FOREGOING ARE THE ONLY WARRANTIES MADE BY OWNER. OWNER SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 5. PAYMENT. In consideration of the rights granted to Developer in this Agreement, Developer will pay Owner the sum of $500.00 before delivery of PMODE/W. If in the Developer's sole opinion, within thirty days after execution of this Agreement, PMODE/W is unsuitable for production release in the Developer's Applications, the Owner will refund the one time sum of $500.00 (minus shipping charges) to the Developer and this agreement shall terminate. 6. COPYRIGHT NOTICES. Developer shall not remove, alter, cover, or obfuscate any copyright notice placed in or on PMODE/W by Owner, whether in machine language or human readable form. 7. INDEMNIFICATION. Owner will defend, indemnify, and hold Developer harmless from and against any and all liabilities, losses, damages, costs, and expenses (including legal fees) associated with any claim or action brought against Developer for infringement of any U.S. patent, copyright, trade secret, or other property right based upon the duplication, sale, license, or use of PMODE/W in accordance with this Agreement, provided that Developer promptly notifies Owner in writing of the claim and allows Owner to control, and fully cooperates with Owner in, the defense, and all related settlement negotiations. Owner shall have no liability for any settlement or compromise made without its consent. Upon notice of an alleged infringement, or if in the Owner's opinion such a claim is likely, Owner shall have the right, at its option, to obtain the right for Developer to continue to exercise the rights granted under this Agreement, substitute another work acceptable to Developer, or modify PMODE/W so that it is no longer infringing. 8. LIMITATION OF LIABILITY. OWNER'S LIABILITY TO DEVELOPER SHALL BE LIMITED TO DIRECT DAMAGES AND, EXCEPT AS PROVIDED IN THE SECTION TITLED "INDEMNIFICATION", SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID BY DEVELOPER TO OWNER HEREUNDER. IN NO EVENT WILL OWNER BE LIABLE FOR INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) SUFFERED BY DEVELOPER, EVEN IF IT HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 9. TERM AND TERMINATION. (a) Termination for Breach. Owner may terminate this Agreement only in the event of a material breach of the terms or conditions of this Agreement by Developer which breach is not cured within thirty days of written notice from Owner. In addition to these rights of termination, each party will have the right, in the event of an uncured breach by the other party, to avail itself of all remedies or causes of action, in law or equity, for damages as a result of such breach. (b) Effect of Termination. Upon termination of this Agreement for any reason, Developer will immediately cease production of all Applications containing PMODE/W. However, Developer shall have the right to distribute all copies of any Applications containing PMODE/W in Developer's inventory as of the date of termination. (c) Effect on End Users. Termination by either party will not affect the rights of any person who has acquired a copy of any of Developer's Applications. 10. GENERAL PROVISIONS. (a) Notices. All notices and demands hereunder shall be in writing and shall be serviced by personal service or by mail at the address of the receiving party set forth in this Agreement (or at such different address as may be designated by such party by written notice to the other party). All notices or demands by mail shall be certified or registered mail, return receipt requested, or by nationally- recognized private express courier, and shall be deemed complete upon receipt. (b) Governing Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the Commonwealth of Virginia of the United States of America. (c) Relationship of the Parties. Each party is acting as an independent contractor and not as an agent, partner, or joint venturer with the other party for any purpose. Except as provided in this Agreement, neither party shall have any right, power, or authority to act or to create any obligation, express or implied, on behalf of the other. (d) Survival of Certain Provisions. The indemnification obligations set forth in the Agreement shall survive the termination of the Agreement by either party for any reason. (e) Headings. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify, or place any construction upon or on any of the provisions of this Agreement. (f) All Amendments in Writing. No provisions in either party's purchase orders, or in any other business forms employed by either party will supersede the terms and conditions of this Agreement, and no supplement, modification, of amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. (g) Entire Agreement. The parties read this Agreement and agree to be bound by its terms, and further agree that it constitutes the complete and entire agreement of the parties and supersedes all previous communications, oral or written, and all other communications between them relating to the license and to the subject matter hereof. No representations or statements of any kind made by either party, which are not expressly stated herein, shall be binding on such party. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above. [Developer] [Owner] Signature: __________________________ Signature: __________________________ Title: __________________________ Title: __________________________ Date: __________________________ Date: __________________________