SDK COMMERCIAL USE AGREEMENT This SDK COMMERCIAL USE AGREEMENT (this "Agreement") contains the terms and conditions between 3Gear Systems, Inc., a Delaware corporation having its principal place of business at 164 South Park Street, San Francisco, CA 94107 ("3Gear"), and you (and the organization you represent) ("Licensee") and it governs your use of the commercial version of the 3Gear software development kit provided by 3Gear, the 3Gear application programming interfaces ("3Gear API") and any related documentation (collectively, the "SDK"). By accessing the SDK for the prototyping, development and research purposes described herein ("Development"), you are consenting to be bound by and are becoming a party to the terms and conditions of this Agreement. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCESS THE SDK. 1. Development. 1.1 Subject to the terms of this Agreement (including without limitation payment of the applicable fees), 3Gear grants to Licensee a non-sublicensable, non-exclusive, non-transferable license to use the SDK on the number of machines agreed upon by the parties in connection with Licensee’s software application(s) ("Licensee Application") solely for Licensee’s Development purposes during the term of this Agreement, and not as a standalone product. Licensee may not install or use the SDK for any other purpose without 3Gear’s prior written consent, including without limitation in any manner or for any purpose that violates any law or regulation or any right of any person (including but not limited to intellectual property rights or rights of privacy). In addition, Licensee shall not use the SDK in connection with or to promote any Licensee Applications or other products, services, or materials that constitute, promote or are used for the purpose of dealing in: spyware, adware, or other malicious programs or code; counterfeit goods; items subject to U.S. embargo; unsolicited mass distribution of email; multi-level marketing proposals; hate materials; hacking/surveillance/interception/descrambling equipment; libelous, defamatory, obscene, pornographic, abusive or otherwise offensive content; prostitution; stolen products or items used for theft; fireworks, explosives, or hazardous materials; or weapons. Without limiting the foregoing, Licensee shall not use the SDK for any illegal purpose. Licensee networks, operating system and software of web server(s), routers, databases, and computer systems must be properly configured to Internet industry standards, as required to securely operate the Licensee Application. 3Gear may revise its policies and rules regarding the use of its SDK from time to time upon reasonable advance written notice, and Licensee agrees to comply with any revised policies and rules within a reasonable time after receipt thereof (but no later than 30 days). 1.2 3Gear shall at all times retain all title to and ownership of the SDK and all copies thereof. Licensee understand that 3Gear may modify or discontinue offering the SDK at any time. Licensee agrees to use the SDK only in the ordinary course of its Development, and Licensee will not modify, rent, sell, lease or transfer the SDK or any part thereof or use it for the benefit of a third party or otherwise outside the scope of the license granted above. From time to time as requested by 3Gear, Licensee agrees to participate in the feedback programs administered by 3Gear. 3Gear will own all right, title, and interest in the feedback Licensee provides and Licensee hereby makes all assignments necessary to accomplish the same. Licensee will not rent, sell, lease or otherwise transfer or allow access to the SDK or any part thereof or use it for the benefit of a third party. Licensee shall not reverse assemble, reverse compile or reverse engineer the SDK, or otherwise attempt to discover any SDK source code. 1.3 Licensee may include the words "powered by 3Gear" in any applications that use the SDK in a manner to be mutually agreed upon by the parties and subject to 3Gear’s trademark usage guidelines. Except for the foregoing, this Agreement does not include any right for 3Gear to use any trademark, service mark, trade name or any other mark of 3Gear or any other party or licensor. No rights or licenses are granted except as expressly and unambiguously set forth herein. 1.4 This Agreement does not entitle Licensee to any support for the SDK, unless Licensee makes separate arrangements with 3Gear and pays all fees associated with such support. Any such support provided by 3Gear shall be subject to the terms of this Agreement as modified by the associated support agreement. 2. Confidentiality. Licensee acknowledges that, in the course of using the SDK, it may obtain information relating to the SDK and/or 3Gear ("Proprietary Information"). Licensee shall (a) not use the Proprietary Information except for the Development, (b) not disclose such Proprietary Information to any party, other than its employees who have a "need to know" for the Development (provided that such employees are bound by written agreements respecting such Proprietary Information in accordance with the terms hereof) and (c) use at least reasonable measures to protect the confidentiality of such Proprietary Information. If Licensee is required by law to make any disclosure of such Proprietary Information, Licensee shall first give written notice of such requirement to 3Gear, and shall permit the 3Gear to intervene in any relevant proceedings to protect its interests in the Proprietary Information, and provide full cooperation to 3Gear in seeking to obtain such protection. Information will not be deemed Proprietary Information hereunder if such information is known or becomes known (independently of disclosure by 3Gear) to Licensee prior to receipt from 3Gear from a source other than one having an obligation of confidentiality to 3Gear, or becomes publicly known (other than through a breach hereof by Licensee). Upon expiration or termination of this Agreement or the earlier request of 3Gear, Licensee shall, at 3Gear’s option, return or destroy all Proprietary Information in Licensee’s possession or control. Licensee acknowledges and agrees that due to the unique nature of 3Gear’s Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, and therefore, that upon any such breach or threat thereof, 3Gear shall be entitled to seek an injunction and other appropriate equitable relief without posting a bond in addition to whatever remedies it may have at law. 3. Fees. Licensee shall pay for a license for each machine on which Licensee installs or uses the SDK. Licensee will be required to provide 3Gear information regarding Licensee’s credit card or other payment instrument. Licensee represents and warrants to 3Gear that such information is true and that Licensee is authorized to use the payment instrument. Licensee agrees to pay 3Gear the amount that is specified in accordance with any additional payment terms and this Agreement. All fees shall be non-refundable and payable in US dollars on the date they come due. 3Gear reserves the right to alter its prices at any time without prior notice. 4. Term; Termination. This Agreement will commence on the date Licensee downloads the SDK and continue until terminated. 3Gear may terminate this Agreement immediately if Licensee violates any provision of this Agreement. Upon termination of this Agreement, all licenses granted by 3Gear hereunder (including without limitation Section 1.1) shall terminate. All other rights and obligations of the parties that have accrued as of such termination, and Sections 1.2 and 2 through 10, shall survive termination. Upon termination of this Agreement for any reason, Licensee shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the SDK and shall so certify to 3Gear upon request that such actions have occurred. LICENSEE ACKNOWLEDGES THAT THE SDK MAY INCLUDE FEATURES TO PREVENT USE ON OR AFTER THE TERMINATION DATE AND/OR USE INCONSISTENT WITH THIS AGREEMENT. LICENSEE HEREBY GIVES 3GEAR THE RIGHT TO DISABLE THE SDK UNDER SUCH CIRCUMSTANCES AND SHALL HAVE NO CLAIM AGAINST 3GEAR FOR ANY DAMAGES INCURRED BY SUCH ACTION BY 3GEAR. 5. DISCLAIMER. The parties acknowledge that the SDK and the 3Gear API are provided "AS IS". 3GEAR DISCLAIMS ALL WARRANTIES RELATING TO THE SDK AND THE 3GEAR API, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FURTHER, 3GEAR DISCLAIMS ANY WARRANTY THAT LICENSEE’S USE OF THE SDK OR 3GEAR API WILL BE UNINTERRUPTED OR ERROR FREE. 6. Indemnity. Licensee agrees that 3Gear shall have no liability whatsoever for any use Licensee makes of the SDK. Licensee shall indemnify and hold harmless 3Gear from any and all claims, damages, liabilities, costs and fees (including reasonable attorneys’ fees) arising from the Licensee Applications or otherwise from Licensee’s use of the SDK. 7. Export Controls. Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-export of the SDK in violation of any such restrictions, laws or regulations. By accessing or using the SDK, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country. 8. Government Use. If Licensee is part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the SDK are restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The SDK is a "commercial item," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use of the SDK by the Government shall be governed solely by the terms of this Agreement. 9. LIMITATION OF LIABILITY. 3GEAR WILL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SOFTWARE OR TECHNOLOGY, OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS. 3GEAR WILL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. 3GEAR’S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY LICENSEE HEREUNDER IN THE TWELVE-MONTH PERIOD PRIOR TO THE APPLICABLE CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF 3GEAR WAS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY. 10. Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Licensee, and any such attempted assignment or transfer shall be void; 3Gear may freely transfer or assign this Agreement. This Agreement embodies the entire agreement and understanding of, and supersedes all prior agreements and understandings between, the parties in respect of the subject matter hereof. If any or any part of any provisions contained herein shall, for any reason, be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Neither party shall be deemed to be an employee, agent or other legal representative of the other party for any purpose whatsoever, or have the right or authority to assume or otherwise create any obligation or responsibility, express or implied on behalf of the other party or to bind the other party in any manner whatsoever.