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Software and Software Support for the Software and/or Software Product(s), with the exception of the separate Software Subscription Agreement (per Article 1, Section C). No change or attempted waiver of any provision of this Agreement shall be binding unless expressed in writing and signed by the party against whom the same is sought to be enforced. T. Term. This Agreement is effective from the date on which both parties execute this Agreement as set forth on the signature page hereto and shall remain in effect until all provisions have been satisfied. The provisions of Software Licenses and other restrictions for Licensed Program Materials shall survive indefinitely and past the termination of all other provisions of this Agreement. U. Amendments. No amendment to this Agreement shall be effective unless it is in writing and signed by the duly authorized representative of both parties. No term or provision hereof shall be deemed waived and no breach excused unless waiver or consent to breach is in writing. For purposes of the Agreement, the only authorized representatives shall be: Active Network: ~, Purchaser:~dO~ /'~ ' ~ DuaneHarlan, President of RecWare Division {~0t~ tS~ ~r~.~C~ ~1 ~"~, ~J] Active Network ~ _ , .. 937 Enterprise Dr. ~~ C4 Sacramento, CA 95825 V. Source Code and Escrow of Software. Purchaser will not be provided with Active Network's source code. Purchaser and Active Network may choose to enter into a separate agreement for the escrow of Active Network's source code, at an additional fee. W. Title and Ownership. Title, ownership and right of use shall remain with Active Network until all sums due under this contract are paid. If payment is not made when due, Purchaser agrees, upon request of Active Network, to cease use of products which have not been paid for until full payment has been made to Active Network. X. Provision of Services. Purchaser agrees that Active Network's sole obligation for on-site services and on-site training is to supply a qualified installer or instructor for the designated number of service or training hours. Active Network neither warrants nor represents that after such training time any specific individual or individuals designated by Purchaser will be able to properly use and operate the Products. Y. Warranty of Products Manufactured by Active Network. Active Network warrants that upon delivery, Active Network developed Products shall be in reasonable conformance with Active Network's printed documentation. After delivery, should any part of the Licensed Program Materials media prove to be defective, Active Network will provide a replacement Licensed Program Material media at no charge to Purchaser for a period of 30 days from the date of original shipment by Active Network. THIS IS THE ONLY WARRANTY MADE AS TO THE PRODUCTS AND IS I~ LIEU OF ALL OTHER WARRANTIES, EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL ACTIVE NETWORK OR ITS EMPLOYEES BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE OR OTHER INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES. Z. Warranty of Products Not Manufactured by Active Network. Should Active Network provide products manufactured by others ("Third Party Products"), Purchaser shall seek and obtain warranty service for such products directly from the product manufacturer or authorized service center. With respect to Third Party Products, Active Network makes no warranties, whether express or implied, including without limitation warranties of merchantability or fitness for particular purpose. AA. Applicable Law and Venue. This Agreement shall be governed by the laws of the State of California. Any action or court proceeding which may arise from this Agreement shall be heard in the Courts in the County of San Mateo, CA. BB. Assignment. This Agreement may be assigned if Active Network participates in any merger or similar transaction in which a majority of Active Network's stock is transferred, provided that the assignee or successor assumes all rights and obligations under this Agreement. 3