THIS IS A LEGAL AGREEMENT BETWEEN YOU, THE EMPLOYEE, THE INDIVIDUAL, OR THE ENTITY IDENTIFIED AS "CUSTOMER" (AS DEFINED HEREinafter) AND Penso Enterprises Inc. THIS AGREEMENT STATES THE TERMS and conditions UNDER WHICH CUSTOMER MAY USE THE Crews Director. BY clicking on the accept button, INSTALLING, HAVING SOFTWARE INSTALLED ON CUSTOMER's BEHALF, COPYING, HAVING Crews Director COPIED ON CUSTOMER's BEHALF, USING OR HAVING SOFTWARE USED ON CUSTOMER's BEHALF, CUSTOMER INDICATES THAT CUSTOMER HAS READ AND UNDERSTANDS THIS AGREEMENT AND AGREES TO BE BOUND BY THE TERMS SET FORTH IN THIS AGREEMENT. IF "Crews Director" IS INSTALLED, COPIED OR USED ON BEHALF OF CUSTOMER, THE TERMS SET FORTH IN THIS AGREEMENT SHALL APPLY TO CUSTOMER AS WELL AS TO the INDIVIDUAL OR ENTITY INSTALLING, COPYING OR USING "Crews Director ON BEHALF OF CUSTOMER. this agreement shall be effective as of THE earlier of the date Crews Director is installed or used. "Crews Director" SHALL BE DEEMED ACCEPTED BY CUSTOMER TEN (10) DAYS AFTER THE DATE "Crews Director" IS DELIVERED TO CUSTOMER. IF CUSTOMER DOES NOT AGREE WITH THE TERMS and conditions SET FORTH IN THIS AGREEMENT, DO NOT install or USE "Crews Director" AND RETURN "Crews Director" TO Penso Enterprises Inc WITHIN TEN (10) DAYS OF THE DATE "Crews Director" IS DELIVERED TO CUSTOMER. ANY REFUNDS (IF APPLICABLE) SHALL BE SUBJECT TO Penso Enterprises Inc STANDARD REFUND POLICY IN EFFECT, LESS ANY RESTOCKING FEES AND OTHER APPLICABLE FEES. Crews Director Agreement This Crews Director Agreement ("Agreement") is made as of the Effective Date by and between Penso Enterprises Inc, a corporation with offices located at [531 Logan St Denver CO 80203] and the individual or entity identified on the Sales Agreement as customer ("Customer"). W I T N E S S E T H: WHEREAS, Penso Enterprises Inc owns that certain Crews Director application entitled Crews Director; and WHEREAS, Customer has had an opportunity to review and approve the functions and utilities of Crews Director and is familiar with the use and operation of Crews Director; and WHEREAS, Customer has independently determined that Crews Director will meet the needs of Customer for a [Customer Software Requirements] Crews Director application at the Facility (as defined below); and WHEREAS, Customer desires to receive a license to use Crews Director. NOW THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, Penso Enterprises Inc and Customer hereby agree as follows: ARTICLE I: RECITALS AND DEFINITIONS Section 1.01 -- Recitals: The above recitals and identification of parties are true and correct. Section 1.02 -- Definitions: The following definitions shall apply: Access: The term "Access" and variants thereof shall mean to store data in, retrieve data from or otherwise approach or make use of (directly or indirectly) through electronic means or otherwise. Crews Director: The term "Crews Director" shall mean the object code for that certain Crews Director application, including the Documentation, as provided by Penso Enterprises Inc to Customer hereunder, including Updates. Associate: The term "Associate" shall mean an employee of Penso Enterprises Inc or an independent contractor hired by Penso Enterprises Inc. Authorized Person: The term "Authorized Person" shall mean Customer or employees of Customer who agree in writing to maintain the confidentiality of Confidential Information and individuals or organizations who are authorized in writing by Penso Enterprises Inc to receive Confidential Information and who agree in writing to maintain the confidentiality of such Confidential Information. Cancellation Notice: The term "Cancellation Notice" shall mean that written notice sent by Penso Enterprises Inc to Customer seeking to cancel this Agreement because of breach of this Agreement by Customer. Confidential Information: The term "Confidential Information" shall mean all information concerning this Agreement, Crews Director, and the business and technical plans of Penso Enterprises Inc which is disclosed by Penso Enterprises Inc to Customer or learned by Customer. Defects: The term "Defects" shall mean programming errors which substantially impair the performance, utility and functionality of Crews Director, as represented in the Documentation. Defect Notice: The term "Defect Notice" shall mean that certain written notice from Customer to Penso Enterprises Inc identifying Defects. Delivery Date: The term "Delivery Date" shall mean the date Crews Director is delivered to Customer (as applicable). Deposit: The term "Deposit" shall mean a sum of money equal to fifty percent (50%) of the Price. Documentation: The term "Documentation" shall mean the Crews Director user guide (in electronic or printed format) as provided to Customer on the Delivery Date. Documentation Fee: The term "Documentation Fee" shall mean the sum of money paid by Customer to Penso Enterprises Inc for additional copies of Documentation requested by Customer pursuant to Section 3.02. determined in accordance with Penso Enterprises Inc then standard rates as of the date Customer's request for additional copies of the Documentation is received by Penso Enterprises Inc. Effective Date: The term "Effective Date" shall mean the earlier of the date that the Sales Agreement is executed by Penso Enterprises Inc and Customer or the date Crews Director is installed or used. Event of Bankruptcy: The term "Event of Bankruptcy" shall mean: (1) the filing of a petition under any insolvency or bankruptcy statute seeking the declaration of Customer as insolvent or bankrupt; (2) the filing of any action seeking receivership or reorganization of Customer pursuant to or under any insolvency or bankruptcy statute; or (3) the filing of any involuntary petition against Customer pursuant to any insolvency or bankruptcy statute if such petition shall remain unstayed or undismissed for a period of ten (10) days after filing. Implement: The term "Implement" and variants thereof (including, but not limited to, the terms "implementation", "implementing" and "implemented") shall mean to load. Maintenance Services: The term "Maintenance Services" shall mean Defect resolution services concerning Crews Director (excluding the System) as provided by Penso Enterprises Inc to Customer for the prevailing fees and time and material rates published by Penso Enterprises Inc and subject to Penso Enterprises Inc standard maintenance terms. Price: The term "Price" shall mean the total price to be paid by Customer to Penso Enterprises Inc for the System and for licensing Crews Director, as set forth in the Price Schedule. Restatements: The term "Restatements" shall mean Section 757 of the Restatement of Torts, Section 39 of the Restatement (Third) of Unfair Competition, Section 1 of the Uniform Trade Secrets Act, and Section 1839 of Title 18 of the United States Code (18 U.S.C. ¤ 1839). Services: The term "Services" shall mean Maintenance Services and that certain Crews Director installation, training, telephone support, development and consulting services as requested by Customer and approved by Penso Enterprises Inc in writing. Term: The term "Term" shall mean a period of time commencing on the Effective Date and continuing until this Agreement is terminated or canceled under Article IV. Third Party Technology: The term "Third Party Technology" shall mean third party software, computer, hardware, peripherals, components, devices, equipment and technology used in connection with or related to Crews Director. Unauthorized Access: The term "Unauthorized Access" shall mean any access to Crews Director except for the exclusive purpose of scheduling, project management, and training employees of Customer in the use of Crews Director. Unauthorized User: The term "Unauthorized User" shall mean any individual who accesses Crews Director except for: (1) employees of Customer authorized by Customer to access Crews Director and who agrees to maintain the confidentiality of Confidential Information for the exclusive purpose of performing [scheduling, project management], and training employees of Customer in the use of Crews Director and (2) Authorized Persons authorized in writing by Penso Enterprises Inc to access Crews Director. Updates: The term "Updates" shall mean the object code for updates, upgrades, new versions, new releases or modifications to Crews Director as generally made available by Penso Enterprises Inc from time to time to Penso Enterprises Inc customers for the applicable fee. Warranty Term: The term "Warranty Term" shall mean a period of time commencing on the Delivery Date and ending on the date which is sixty (60) days thereafter. ARTICLE II: SOFTWARE Section 2.01 -- Grant of License: Penso Enterprises Inc hereby grants to Customer a non-exclusive and non-transferable license to use Crews Director and to use the Documentation at the Facility for the License Term, subject to the terms and provisions of this Agreement. Section 2.02 -- Delivery: Customer hereby acknowledges Penso Enterprises Inc shall deliver Crews Director on the Delivery Date. Section 2.03 -- Acceptance: Crews Director shall be deemed accepted by Customer ten (10) days after the Delivery Date unless Defect Notice is received by Penso Enterprises Inc by such tenth day. Upon receiving Defect Notice from Customer, Penso Enterprises Inc shall review the asserted Defect to determine if the Defect is valid. If, in the reasonable professional judgment of Penso Enterprises Inc the asserted Defect is valid, Penso Enterprises Inc shall correct the Defect and resubmit Crews Director for acceptance by Customer. If, in the reasonable professional judgment of Penso Enterprises Inc the asserted Defect is not valid, Penso Enterprises Inc shall submit to Customer a written explanation of the reasons why such asserted Defect is not valid. The written explanation of Penso Enterprises Inc set forth herein shall be deemed accepted by Customer within ten (10) days after receipt by Customer of such written explanation unless Penso Enterprises Inc receives from Customer written notice rejecting such explanation and terminating this Agreement within such ten (10) day period. Upon receipt of Defect Notice from Customer by Penso Enterprises Inc as set forth above, Crews Director shall be deemed accepted by Customer except as to the asserted Defects specified in the Defect Notice. Section 2.04 -- Risk of Loss: Customer shall assume risk of loss to Crews Director as of the Delivery Date. Customer shall keep Crews Director protected and in good working order, maintained and insured against loss for full replacement value until the date that the Price is paid in full by Customer. Section 2.05 -- Authorized Use: Customer shall prevent Unauthorized Users from accessing Crews Director. Customer shall prevent Unauthorized Access to Crews Director. Customer shall promptly inform Penso Enterprises Inc of any and all Unauthorized Access (or suspected Unauthorized Access) and Unauthorized Users (or suspected Unauthorized Users) of which Customer has knowledge or suspicion. Access to Crews Director using third party products for purposes of manipulating, viewing, disclosing or using the internal structure of Crews Directorª or for creating a database, data dictionary or data model shall be deemed Unauthorized Access. Section 2.06 -- End Use: Customer hereby represents and warrants that Crews Director is being licensed by Customer for its own use at the Facility and not for rental, leasing, resale, sublicensing, distribution, outsourcing, or offering service bureau services. Section 2.07 -- Services: Customer may request Services, as approved by Penso Enterprises Inc. All Services shall be subject to the discretion of Penso Enterprises Inc and shall be subject to Penso Enterprises Inc standard service terms and applicable time and material rates. ARTICLE III: PAYMENT Section 3.01 -- Price: Customer shall pay the Deposit on the Effective Date. Section 3.02 -- Costs: Customer shall pay all costs incurred by Penso Enterprises Inc in performing this Agreement. Such costs shall include (without limitation) postage, freight, telecommunications, fees charged by third parties, telephone, travel, lodging, per diem, material and reproduction costs. Section 3.03 -- Invoicing and Payment: Services shall be performed by Penso Enterprises Inc at the time and material rates of Penso Enterprises Inc prevailing at the time such Services are rendered. Penso Enterprises Inc shall receive payment prior to Customer being added to the database by approved credit card. ARTICLE IV: TERMINATION Section 4.01 -- Termination Limitations: This Agreement shall only be terminated or canceled as provided under this Article IV. Section 4.02 -- Term: This Agreement shall be valid for the Term. Section 4.03 -- Termination: Customer may terminate this Agreement for convenience upon providing ten (10) days written notice of termination to Penso Enterprises Inc, subject to the terms and provisions of this Agreement. Section 4.04 -- Cancellation for Cause: If Customer violates its obligations under this Agreement, Penso Enterprises Inc may cancel this Agreement by sending Cancellation Notice describing the noncompliance to Customer. Upon receiving Cancellation Notice, Customer shall have ten (10) days from the date of such notice to cure any such noncompliance. If such noncompliance is not cured within the required ten (10) day period, Penso Enterprises Inc shall have the right to cancel this Agreement as of the eleventh day after the date of the Cancellation Notice. Section 4.05 -- Return: Upon termination or cancellation of this Agreement, Customer shall promptly remove (at Customer's expense) all customer information and data stored in Crews Director and return to Penso Enterprises Inc the Crews Director, the Documentation and all Penso Enterprises Inc materials provided by Penso Enterprises Inc to Customer hereunder and shall provide Penso Enterprises Inc with a certificate of compliance with this Section 4.05 signed by an authorized representative of Customer. Orders under the Sales Agreement terminated or cancelled by Customer or changes made by Customer within ten (10) days after the Effective Date or before implementation of Crews Director on the System has started (whichever is earlier) are subject to Penso Enterprises Inc and Manufacturer's standard return and refund policy in effect, including (without limitation) restocking fees and other applicable fees. Upon termination or cancellation of this Agreement ten (10) days after the Effective Date or after implementation of the Crews Director, Penso Enterprises Inc shall be entitled to retain all payments rendered to Penso Enterprises Inc under this Agreement, including (without limitation) the Deposit, the Price, payment for the Services, and payments in anticipation of Services. ARTICLE V: WARRANTY Section 5.01 -- Disclaimer of Warranties. CUSTOMER EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE CREWS DIRECTOR SOFTWARE IS AT CUSTOMER SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH CUSTOMER. THE Crews Director SOFTWARE IS PROVIDED "AS IS", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND Crews Director AND Crews Director'S LICENSORS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE Crews Director SOFTWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. Crews Director DOES NOT WARRANT AGAINST INTERFERENCE WITH CUSTOMER ENJOYMENT OF THE Crews Director SOFTWARE, THAT THE FUNCTIONS CONTAINED IN THE Crews Director SOFTWARE WILL MEET CUSTOMER REQUIREMENTS, THAT THE OPERATION OF THE Crews Director SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE Crews Director SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Crews Director OR AN Crews Director AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO CUSTOMER. Section 5.02 -- Third Party Warranties: Penso Enterprises Inc hereby assigns to Customer the benefit of any and all Manufacturer warranties for the Third Party Technology and may cooperate (as determined by Penso Enterprises Inc) with Customer in securing the benefit of any remedies available to Customer under any such Manufacturer warranty. Section 5.03 -- Service Warranty: Any Services provided by Penso Enterprises Inc pursuant to this Agreement shall be performed on a reasonable efforts basis in a timely and professional manner and shall conform to the standards generally observed in the industry for similar Services and shall be subject to Sections 5.01, 5.04, 5.05 and 5.08. SECTION 5.04 -- DISCLAIMER: THE WARRANTIES SET FORTH IN SECTIONS 5.01 AND 5.03 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND Penso Enterprises Inc HEREBY DISCLAIMS AND CUSTOMER HEREBY WAIVES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY AND ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF MERCHANTABILITY. Section 5.06 -- Third Party Claims: If a final judgment from a court of competent jurisdiction is entered against Customer upholding claims that Crews Director violates a United States patent, copyright, trade secret or other proprietary rights of a third party in the United States, provided that Customer gives Penso Enterprises Inc prompt written notice upon Customer's knowledge of any such claim, permits Penso Enterprises Inc to answer and defend (at Penso Enterprises Inc option) such claim or action and provides Penso Enterprises Inc with information, assistance and authority to assist Penso Enterprises Inc in the defense of such claim or action, Penso Enterprises Inc shall perform one or more of the following actions (as determined by Penso Enterprises Inc) within one year of the date final judgment in favor of such third party's claim is rendered by a court of competent jurisdiction: (1) Replacement: Replace Crews Director with a non-infringing Crews Director product of substantially equivalent functional and performance capability; (2) Modification: Modify Crews Director to avoid the infringement without substantially eliminating the functional and performance capabilities of Crews Director; (3) Obtain Agreement: Obtain a license for use of Crews Director from the third party claiming infringement for use of Crews Director. Penso Enterprises Inc shall have the right to participate or assume the defense (as determined by Penso Enterprises Inc) and Customer shall permit and authorize Penso Enterprises Inc to participate in or assume the defense of any such claim or action through legal counsel. The foregoing remedy does not apply and Penso Enterprises Inc shall have no obligation in connection with or relating to any third party infringement claim in connection with or related to (i) Customer's modification of Crews Director; (ii) Customer's failure to use Crews Director in accordance with the Documentation in effect; (iii) Customer's failure to use the most current release or version of Crews Director; (iv) Customer's combination, interface, operation or use of Crews Director with Third Party Technology; and (v) Penso Enterprises Inc compliance with designs, instructions, or specifications required by Customer. The remedies set forth herein shall be the sole and exclusive remedies of Customer under this Agreement for any and all claims of indemnification relating to infringement. Penso Enterprises Inc obligations set forth in this Section 5.06 shall not apply to the Third Party Technology. Section 5.07 -- Remedies: The exclusive remedy of Customer for any reason and for any cause of action whatsoever in connection with or relating to this Agreement, the System, Crews Director or any transaction involving Crews Director, regardless of the form of action, whether in contract or in tort, including negligence and breach of warranty, shall be limited to repair or replacement of Crews Director as determined by Penso Enterprises Inc. Section 5.08 -- Limitation of Damages: Penso Enterprises Inc shall not be liable to Customer in connection with or relating to this Agreement, the System, Crews Director and any transactions involving Crews Director for any direct, indirect, lost profits, consequential, exemplary, incidental or punitive damages, regardless of the form of action, whether in contract or in tort, including breach of warranty and negligence, regardless of whether Penso Enterprises Inc has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable. Notwithstanding anything to the contrary, the liability of Penso Enterprises Inc for any reason and for any cause of action whatsoever in connection with or relating to this Agreement, the System Crews Director and any transactions involving Crews Director shall be limited to the license fee for Crews Director. Section 5.09 -- Force Majeure: Penso Enterprises Inc shall not be liable for any failure by Penso Enterprises Inc to perform its obligations under this Agreement because of circumstances beyond the reasonable control of Penso Enterprises Inc, which such circumstances shall include (without limitation) natural disaster, terrorism, riot, sabotage, labor disputes, war, any acts or omissions of any government, governmental authority or third party, declarations of governments, transportation delays, power failure, computer failure, telecommunications failure, Third Party Technology, failure of Customer to cooperate with the reasonable requests of Penso Enterprises Inc, misuse of the System or Crews Director by Customer or third party, breach of this Agreement by Customer or a third party and any other events reasonably beyond the control of Penso Enterprises Inc. Section 5.10 -- Customer Indemnification: Customer shall release, defend, indemnify and hold harmless Penso Enterprises Inc (including its officers, directors, employees, affiliates, independent contractors, distributors, agents and successors) against any expense, loss, cost or liability (including, without limitation, interest, penalties, attorney fees and paralegal fees) arising from any and all claims, demands, damages or actions resulting from or related to (1) use of Crews Director by Customer, (including, without limitation, any claim regarding use of Crews Director by Customer in an infringing manner or any claim by third parties for breach of warranty, negligence, loss of data, libel, slander, unfair competition, trademark infringement, or invasion of privacy); (2) performance of Crews Director; (3) Customer's negligence or the acts (or any failure to act) of Customer hereunder; (4) any breach by Customer of the obligations of Customer hereunder; and (5) investigation or defense of any of the above or in asserting Penso Enterprises Inc rights hereunder. Section 5.11 -- Cooperation: Customer shall cooperate with Penso Enterprises Inc by providing Penso Enterprises Inc with information concerning Crews Director and the System as may be requested by Penso Enterprises Inc from time to time and by providing Penso Enterprises Inc with unrestricted access to the personnel, facilities, computers, computer Crews Director and data of Customer. Section 5.12 -- Maintenance: Customer hereby acknowledges and agrees that Customer shall solely be responsible for acquiring, installing, implementing, updating, upgrading, maintaining and replacing the System and all Third Party Technology for any reason, including (without limitation) for Updates or correction of Defects, including (without limitation) all costs, fees, taxes and payments in connection therewith or related thereto. Section 5.13 -- Security Interest: Penso Enterprises Inc hereby reserves and Customer hereby grants to Penso Enterprises Inc a purchase money security interest in the System and Crews Director to secure payment of the Price by Customer. In order to perfect such security interest, Customer hereby appoints Penso Enterprises Inc as the true and lawful attorney-in-fact of Customer and Customer hereby authorizes Penso Enterprises Inc to (1) execute in the name of Customer all forms, documents and financing statements deemed desirable by Penso Enterprises Inc, and (2) file copies of the Sales Agreement, this Agreement and any forms and financing statements with appropriate government agencies and offices as deemed necessary by Penso Enterprises Inc to perfect such purchase money security interest. Section 5.14 -- Repossession: If Customer fails to pay the balance of the Price when due (as provided in Section 3.01 of this Agreement), Penso Enterprises Inc shall have the right to enter the Facility and to repossess the System and Crews Director without further notice. If any Event of Bankruptcy occurs before payment of the balance of the Price when due (as provided in Section 3.01 of this Agreement), Penso Enterprises Inc shall be entitled to any and all remedies available to a secured creditor under the U.S. Bankruptcy Code and applicable state or federal law. ARTICLE VI: INTELLECTUAL PROPERTY Section 6.01 -- Ownership and Title: Title to Crews Director, including all ownership rights to patents, copyrights, trademarks and trade secrets therein or in connection therewith shall be the exclusive property of Penso Enterprises Inc. Customer hereby assigns, transfers and conveys to Penso Enterprises Inc any and all rights, title and interests Customer may have or accrue in Crews Director, including (without limitation) any and all ownership rights to patents, copyrights, trademarks and trade secrets therein or in connection therewith. Section 6.02 -- Confidential Information: Crews Director shall be deemed Confidential Information of Penso Enterprises Inc. Customer shall maintain the Confidential Information in strict confidence. Customer shall not disclose Confidential Information except to Authorized Persons. Customer shall not access, duplicate or use the Confidential Information except as otherwise permitted under this Agreement. Section 6.03 -- Trade Secrets: Customer hereby acknowledges and agrees that the Confidential Information (i) derives independent economic value (actual or potential) from not being generally known to, or readily ascertainable by, other persons who can obtain economic value from its disclosure or use; (ii) is the subject of reasonable efforts by Penso Enterprises Inc under the circumstances to maintain its secrecy; and (iii) is a trade secret as defined under Chapter 688 of the Florida Statutes [¤688.002(4)] and the Restatements. Section 6.04 -- Reverse Engineering: Customer shall not reverse engineer Crews Director and shall not allow Crews Director to be reverse engineered. Section 6.06 -- Copies: Customer shall not copy Crews Director and shall not allow Crews Director to be copied without the prior written consent of Penso Enterprises Inc. Section 6.07 -- Modifications: Customer shall not modify Crews Director and shall not allow Crews Director to be modified without the prior written consent of Penso Enterprises Inc. Customer shall not use Crews Director or any materials incident thereto to develop computer Crews Director without the prior written consent of Penso Enterprises Inc. If Crews Director is modified, such modifications shall be the sole and exclusive property of Penso Enterprises Inc and Penso Enterprises Inc shall own any and all rights, title and interests to such modifications and any resulting computer Crews Director, including (without limitation) any and all copyrights, patents and trade secrets therein or in connection therewith. Section 6.08 -- No Contest: Customer shall not contest or aid in contesting the ownership or validity of the trademarks, service marks, trade secrets, or copyrights of Penso Enterprises Inc. Section 6.09 -- Employee Pirating: Customer shall not induce or solicit (directly or indirectly) any Associate to leave the employ or hire of Penso Enterprises Inc. Customer shall not engage (directly or indirectly) the services of such Associate (as an employee, consultant, independent contractor, or otherwise) without the advance written consent of Penso Enterprises Inc. Section 6.10 -- U.S. Government Restricted Rights: If Customer is the U.S. Government or an agency or department thereof (collectively "Government"), Crews Director is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Crews Director Restricted Rights clause at 48 C.F.R. 52.227-19. Section 6.11 -- Proprietary Notices: Customer shall not remove, alter or obscure any copyright notices or other proprietary legends displayed by or used by Penso Enterprises Inc in connection with or related to Crews Director. Section 6.12 -- Trademarks: Penso Enterprises Inc trademarks, trade dress, logos, tradenames or insignia ("Penso Enterprises Inc Marks"), including (without limitation) Crews Director, are owned exclusively by Penso Enterprises Inc. Penso Enterprises Inc shall retain all rights, title and ownership interests in Penso Enterprises Inc Marks. Customer shall not (directly or indirectly) use any trademark, tradename, trade dress, insignia or logo that is similar to or a colorable imitation of any Penso Enterprises Inc Marks. Section 6.13 -- Continuation: The terms and conditions of this Article VI shall survive termination and cancellation of this Agreement. ARTICLE VII: MISCELLANEOUS Section 7.01 -- Assignments: All assignments of rights under this Agreement by Customer without the prior written consent of Penso Enterprises Inc shall be void. Section 7.02 -- Public Announcement: All public announcements of the relationship of Penso Enterprises Inc and Customer under this Agreement shall be subject to the prior written approval of Penso Enterprises Inc. Penso Enterprises Inc shall have the right to use the name of Customer as a reference for marketing purposes in connection with Crews Director. Section 7.03 -- Entire Agreement: This Agreement and the Sales Agreement contain the entire understanding of the parties and supersede previous verbal and written agreements between the parties concerning the System and Crews Director. In the event of a conflict between the terms of this Agreement and the terms of the Sales Agreement, the terms of this Agreement shall prevail. Section 7.04 -- Amendments and Modifications: Alterations, modifications or amendments of a provision of this Agreement shall not be binding unless such alteration, modification or amendment is in writing and signed by Penso Enterprises Inc and Customer. Section 7.05 -- Severability: If a provision of this Agreement is rendered invalid, the remaining provisions shall remain in full force and effect. Section 7.06 -- Captions: The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision thereof. Section 7.07 -- Counterparts: This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Section 7.08 -- Governing Law: This Agreement shall be governed by the laws of the State of [Colorado] without regard to any rules of conflict or choice of laws which require the application of laws of another jurisdiction and venue shall be in [Denver, Colorado]. Section 7.09 -- Notice: Notices shall be in writing and shall be deemed delivered when delivered by commercial overnight delivery service, by courier, Certified or Registered Mail with Return Receipt Requested or by hand to the address set forth below for Penso Enterprises Inc and to the address set forth on the Sales Agreement for Customer. Notice shall be deemed given on the date of receipt - as evidenced in the case of Certified or Registered Mail by Return Receipt. Section 7.10 -- Pronouns/Gender: Pronouns and nouns shall refer to the masculine, feminine, neuter, singular or plural as the context shall require. Section 7.11 -- Bankruptcy: If Penso Enterprises Inc must institute, defend, appear or attend a bankruptcy proceeding as a result of the filing of bankruptcy by Customer, fees and expenses shall be paid by Customer. If Customer has a bankruptcy proceeding filed against it, Penso Enterprises Inc shall recover attorney fees, expert witness fees, and other costs incurred by Penso Enterprises Inc in connection with the bankruptcy proceeding, hearing or trial. Section 7.12 -- Waiver: Any waiver of a provision of this Agreement by Penso Enterprises Inc shall not be binding unless such waiver is in writing and signed by Penso Enterprises Inc. Waiver by Penso Enterprises Inc of any breach of this Agreement shall not constitute waiver of any other breach. Any failure by Penso Enterprises Inc to enforce a provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Section 7.13 -- Relationship of the Parties: It is agreed that the relationship of Penso Enterprises Inc and Customer is primarily that of licensor and licensee or seller and customer respectively. Nothing herein shall be construed as creating a partnership, an employment relationship, or an agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party shall maintain its separate identity. Section 7.14 -- Arbitration: Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in accordance with the rules of the American Arbitration Association in [Denver, Colorado]. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Qualified Arbitrators shall be selected by the parties in accordance with the rules of the American Arbitration Association. Each party shall have the right of discovery as set forth in the Federal Rules of Civil Procedure. The Arbitration shall be administered by the rules of the American Arbitration Association. Section 7.15 -- Assurances: Each party hereby represents and warrants that all representations, warranties, recitals, statements and information provided to the other under this Agreement are true, correct and accurate as of the Effective Date to the best of their knowledge. Section 7.16 -- Litigation Expense: In the event of litigation or arbitration arising out of this Agreement, each party shall pay its own costs and expenses of litigation or arbitration (excluding fees and expenses of arbitrators and administrative fees and expenses of arbitration). Section 7.17 -- Equitable Remedies: The parties hereby acknowledge that damages at law may be an inadequate remedy to Penso Enterprises Inc. Penso Enterprises Inc shall have the right of specific performance, injunction or other equitable remedy in the event of a breach or threatened breach of this Agreement by Customer. Section 8.01 Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL CREWS DIRECTOR BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO CUSTOMER USE OR INABILITY TO USE THE CREWS DIRECTOR SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF CREWS DIRECTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO CUSTOMER Section 8.02 In consideration of the benefits received by them through the use of this Crews Director system and other good and valuable consideration, the receipt of which is hereby acknowledged, each Vendor, Resource and Client agree as follows: (a) Vendor and Resource agree that they shall look solely and exclusively to the Client for the payment of any sum or sums due them from a Client and that under no circumstances shall the Data Base Administrator have any responsibility or obligation whatsoever with respect to such payment.. (b) Client agrees that it will look solely to a Vendor or a Resource, as the case may be, for the performance of all work and the provision of all services agreed to be provided to Client by such Vendor or Resource and that under no circumstances shall the Data Base Administrator have any liability of any nature whatsoever to a Client with respect to the performance, non-performance or breach of any agreement by a Vendor or a Resource. Client also acknowledges that the Data Base Administrator makes no guaranty, warranty or representation to Client regarding the competency, skill or ability of a Vendor or a Resource, and that under no circumstances shall the Data Base Administrator have any liability of any nature whatsoever to Client for any act or omission of a Vendor or Resource. (c) Client, Vendor and Resource agree that the utilization of this Crews Director system shall not be deemed to create a partnership, joint venture or any other business relationship by and between them, or any of them, and the Data Base Administrator, and the Data Base Administrator shall not under any circumstances be deemed to be a party to any agreement by and between a Resource, a Vendor and a Client. (d) Client, Vendor and Resource hereby agree to indemnify and hold the Data Base Administrator and its agents, affiliates, officers, directors, servants and employees harmless from any and all liability, expenses (including reasonable investigation and defense costs), claims, suits, demands, actions and causes of action of any nature whatsoever regarding any loss, damage or injury to person or property, including death, that may be sustained by Client, Vendor or Resource or any other person or entity as a result of, or in any way related to, any transaction, understanding, arrangement, contract, agreement or any other undertaking resulting from, or facilitated by, the use of this Crews Director system. Section 8.03. When using the "Pay as You Go" option Resource agrees to the following: a. Resource will be invoiced on monthly basis. If payment is not received within 30 days of the date of the invoice then Database Administrator will charge the Resource's credit card that was provided upon registration with a 5% processing fee. Resource hereby consents without qualification to the credit card charge and processing fee provided for in this paragraph. All invoicing will be consistent with the billing rates set forth the Agreement." b. Billing will be based on usage as it shows in the database. Resource should check calendar regularly. Resource is responsible for accuracy of calendar. Database Administrator shall have no liability whatsoever to Resource in the event of any discrepancies or inaccuracies in the database or in the calendar regarding Resource's usuage. c. Billing rates are as follows: Any camera listing: $150US per each day used. All other listings: $60US per each day used. Section 8.04. Database Administrator reserves the right to terminate without prior notice the agreement between Database Adminstrator and Resource for any reason or for no reason. Any database activity will be terminated and all accrued, upaid obligations of Resource to Database Administrator shall be immediately due and payable in full without further demand.