Exhibit 10.13


 


The Lusk Group


4065
Highway 60, Vine Grove, KY 40175


Tel 270
828.2204 Fax 270 828.2221


 


July 15,2005


 


Lightspace Corporation


125 Cambridge Park Drive


Cambridge, MA 02140


 


	
  Attention:

  	
   

  	
  Mr. Gary Florindo

  
	
   

  	
   

  	
   

  
	
  Reference:

  	
   

  	
  Rocker II Club - Ft. Knox, KY

  
	
   

  	
   

  	
  Purchase Order No. M05-010-3

  
	
   

  	
   

  	
   

  
	
  Subject:

  	
   

  	
  Change Order No.1

  



 


Dear Mr. Florindo,


 


We are respectfully providing this Change Order for additional work to
be performed at the above referenced project.


 


•                                          Addition
of (21) non-interactive (white-lit) tiles to the border of the existing
installation. - $13,379.00 (75% down payment - 25% upon installation)


 


	
  Original
  Contract Amount

  	
   

  	
  $

  	
  127,492.00

  	
   

  
	
  Change Order
  No.1

  	
   

  	
  $

  	
  13,379.00

  	
   

  
	
  Revised
  Contract Amount

  	
   

  	
  $

  	
  140,871.00

  	
   

  



 


Point of contact for further information is the undersigned who can be
reached at (270) 828-2204.


 


	
  Sincerely,

  
	
   

  
	
   

  
	
  Wendell Goodman

  
	
  CEO

  



 

















 


SUBCONTRACT AGREEMENT


 


This
Agreement made this 25th day of April, 2005 by and between Lusk
Mechanical Contractors, Inc. of Vine Grove, Kentucky,
hereinafter called the Contractor, and Lightspace Corporation to
perform a portion of the Work on the following Construction Project:


 


	
  Delivery Order No.

  	
   

  	
  DABT23-01-D-lO05 DO #337

  
	
   

  	
   

  	
   

  
	
  Subcontract No.

  	
   

  	
  M05-010-3

  
	
   

  	
   

  	
   

  
	
  Project Name:

  	
   

  	
  Rocker II - Renovations- Ft. Knox

  
	
   

  	
   

  	
   

  
	
  Lusk Project Name:

  	
   

  	
  Rocker II- Renovations- Ft. Knox

  
	
   

  	
   

  	
   

  
	
  Lusk Project No.:

  	
   

  	
  MOS-010

  
	
   

  	
   

  	
   

  
	
  Cost Code:

  	
   

  	
  Amount:

  	
  $127,492.00

  
	
   

  	
   

  	
   

  
	
  Owner:

  	
   

  	
  Directorate of Contracting

  
	
   

  	
   

  	
  Bldg. 1109-B, Room 250

  
	
   

  	
   

  	
  Ft. Knox, Kentucky 40121

  
	
   

  	
   

  	
   

  
	
  Contract Number:

  	
   

  	
  DABT23-01-D-I005

  
	
   

  	
   

  	
   

  
	
  Contractor:

  	
   

  	
  Lusk Mechanical Contractors, Inc.

  
	
   

  	
   

  	
  4065 Highway 60

  
	
   

  	
   

  	
  Vine Grove, KY 40175

  
	
   

  	
   

  	
  Phone: (270) 828-2204

  
	
   

  	
   

  	
  Fax: (270) 828-2221

  
	
   

  	
   

  	
   

  
	
  Contractor’s Billing Address:

  	
   

  	
  Lusk Mechanical Contractors, Inc.

  
	
   

  	
   

  	
  Attn: Leigh Ann Alexander

  
	
   

  	
   

  	
  4065 Highway 60

  
	
   

  	
   

  	
  Vine Grove, KY 40175

  
	
   

  	
   

  	
   

  
	
  Subcontractor:

  	
   

  	
  Lightspace Corporation

  
	
   

  	
   

  	
  125 Cambridge Park Drive

  
	
   

  	
   

  	
  Cambridge, MA 02140

  
	
   

  	
   

  	
  502-937-9973

  
	
   

  	
   

  	
   

  
	
  Point of Contact:

  	
   

  	
  Gary Florindo

  
	
   

  	
   

  	
   

  
	
  Contract Amount:

  	
   

  	
  $127,492.00

  



 


Scope of Work: Provide
labor supervision, tools, materials, and equipment to install 21’ x 28’ surface
including an interactive surface measuring 8 x 12 tiles, a ring on non-lit/ non-interactive
tiles to fill the remainder of the space and an 8” ramp around the entire
surface per Quotation.


 





















 


ARTICLE 1.
-  SCOPE OF WORK


 


A.                                    The Contractor
contracts with the Subcontractor as an independent contractor to perform all
the work necessary and incidental to complete the Scope of Work specified in
Attachment J. The Subcontractor shall perform such work (hereinafter
called the “Subcontractor’s Work”) under the general direction of the
Contractor and in accordance with this Agreement and the Contract Documents
listed on Attachment I.


 


B.                                    In the event of
a conflict between this Agreement and the Contract Documents, this Agreement shall
govern.


 


ARTICLE 2.
-  SCHEDULE OF WORK


 


A.                                    Time is of the
essence for both parties, and they mutually agree to see to the performance of
their respective work and the work of their subcontractors so that the entire
Project may be completed in accordance with the Contract Documents and the
Schedule of Work. The Contractor shall prepare the Schedule of Work
and revise such schedule as the Work progresses.


 


B.                                    The Contractor
shall have the right to decide the time, order and priority in which the
various portions of the Work shall be performed. The Subcontractor shall
commence its work within two (2) days of notice to proceed from the
Contractor. If such work is interrupted, the Subcontractor shall resume such work
within two (2) working days from the Contractor’s notice to do so.


 


C.                                    The Scheduled
Date for Substantial Completion of the Subcontract is to be determined any contrary
provisions in the Contract Documents, the Work will be deemed to be “Substantially
Complete” when construction of all of the Work is sufficiently complete in
accordance with the Contract Documents so that the Owner can occupy and utilize
the Work for its intended use.


 


D.                                    Subcontractor
acknowledges and agrees that time is of the essence in completing the Work
required hereunder. If Subcontractor fails to achieve Substantial Completion by
the Scheduled Date of Substantial Completion, the Subcontractor will pay the
Contractor as liquidated damages, and not as a penalty, the amount of $0.00 Dollars ($0.00) per day,
until Substantial Completion of the Work is achieved. The Contractor may deduct
the above-stated liquidated damages from any amounts due the Subcontractor, or
the Contractor may require the Subcontractor to pay any liquidated damages
which exceed amounts due the Subcontractor within ten (10) days after such
request. Until any liquidated damages are paid to the Contractor, the
Contractor will be entitled to receive interest at the rate set forth in this
Agreement. The above-stated liquidated damages will be the Contractor’s
exclusive delay damage remedy for the Subcontractor’s failure to achieve
Substantial Completion on or before the Scheduled Date of Substantial
Completion, but such damages will in no way limit the Contractor’s entitlement
to damages for any other injury, damage or loss, other than for delay, for
which the Subcontractor may be responsible pursuant to the terms of this
Agreement or applicable law.


 





















 


ARTICLE 3.
-  PAYMENT


 


A.                                    The payment
provisions of this contract are governed by certain provisions in 31 U.S.C. Section 3901
et. Seq.


 


B.                                    No payment
received by the Subcontractor shall be used to satisfy any indebtedness other
than one owed by the Subcontractor to a person furnishing labor or materials
for use in performing the Subcontractor’s Work. The Contractor shall have the
right at all times to contact the Subcontractor’s subcontractors and suppliers
to ensure that the same are being paid promptly by the Subcontractor for labor
or materials furnished for use in performing the Subcontractor’s Work.


 


C.                                    In the event
the Contractor has reason to believe that labor, materials or other obligations
incurred in the performance of Subcontractor’s Work are not being paid, the
Contractor may give written notice of such claim. to the Subcontractor and
may take any steps deemed necessary to assure that any progress payment shall
be utilized to pay such obligations.


 


D.                                    The Contractor
shall provide the Subcontractor with written notice of any withholding of
payment, specifying the amount to be withheld, the specific causes for the
withholding under the terms of this Agreement, and the remedial actions to be
taken by the Subcontractor in order to receive payment of the amount withheld.


 


E.                                     The
Subcontractor shall submit progress payment applications to the Contractor no
later than the 25th day of each month for work performed up to and including
the 25th day of the month indicating work completed and, to the extent allowed
under Paragraph G, materials suitably stored during the preceding payment period.


 


F.                                      If approved in
advance by the Owner and Contractor, applications for payment may include
materials and equipment not incorporated in the Subcontractor’s Work but
delivered to and suitably stored at the site, Approval of payment applications
for such stored items on or off the site shall be conditioned upon submission
by the Subcontractor of bills of sale and applicable insurance to the Owner and
Contractor to establish the Owner’s title to such materials and equipment and
to protect the Owner’s and Contractor’s interest therein, including
transportation to the site.


 


G.                                    Notwithstanding
any other provision of this Subcontract, Subcontractor shall not be entitled to
receive any payment from the Contractor for any portion of the Work unless and
until the Contractor receives payment for such Work from the Owner, and the
Subcontractor expressly waives any right to assert a claim against the
Contractor unless and until the Contractor as received payment for such work
from the Owner. It is specifically understood and agreed that the payment of
any sums to Subcontractor under this Subcontract are dependent, as a condition
precedent, upon the Contractor receiving payment of such sums from the Owner.


 


H.                                   The
Subcontractor shall submit to the Contractor its Final Application for Payment
upon the Subcontractor’s Substantial Completion of the Work. Subcontractor
shall also deliver along with this Final Application for Payment any and all
warranties, guarantees, or documents relating to all machines, equipment, other
fixtures or property, which are included in the Project. The Contractor shall
not be entitled to receive Final Payment of the entire unpaid balance of the
Contract Price until (i) Subcontractor’s Work has been finally completed, 


 





















 


including all punchlist
Work, and accepted by Contractor and (ii) the Agreement has otherwise been
fully performed by the Subcontractor.


 


I.                                        Progress
payments or final payment due and unpaid under this Agreement shall bear
interest from the day after the required payment date until the date on which
payment of the amount due is made. Interest shall be computed on the basis of the
Federal Cost of Money Rate (Renegotiation Rate). (31 U.S.C. Section 3902(a))


 


J.                                        The
Subcontractor agrees to incorporate a payment clause and an interest penalty
clause conforming to the requirements of the Prompt Payment Act (31 U.S.C. Section 3905)
in its subcontracts with its subcontractors or suppliers and to require them to
include such clauses in their subcontracts with lower tier subcontractors or
suppliers.


 


ARTICLE 4.
-  CHANGES


 


A.                                    When the
Contractor so orders in writing, the Subcontractor, without nullifying this
Agreement, shall make any and all changes in the Work which are within the
general scope of this Agreement. Adjustments in the Contract Price or contract
time, if any, resulting from such changes shall be set forth in a Subcontract
Change Order pursuant to the Contract Documents. No adjustments shall be made
for any such changes performed by the Subcontractor that have not been so
ordered by the Contractor. If the Subcontractor wishes to make a claim for an
extension of time for achieving Substantial Completion, or an increase in the
Contract Price, Subcontractor shall give Contractor written notice within five (5) days
after the Occurrence of the event giving rise to such claim and before
Subcontractor proceeds to perform any additional work. Within fifteen (15)
days after providing such written notice, the Subcontractor shall submit a
written statement to the Contractor setting forth in detail (1) the nature
and cause of the claim, and (2) an itemized and substantiated statement of
the time extension or claim amount requested, or if sufficient information to
do so is unavailable, then a reasonable estimate of the time extension or claim
amount supported by such documentation as the Contractor may request. If
the Subcontractor has submitted a reasonable estimate, then within thirty (30)
days after submitting such reasonable estimate, Subcontractor shall submit the detailed
written statement required by the previous sentence. Any claim not made in
strict compliance with the provisions of this Paragraph is waived.


 


B.                                    In the event
that Contractor advises Subcontractor that extra work of the general type
undertaken by Subcontractor shall be required on the Project, Subcontractor
agrees that it will perform such work. If a lump sum price or unit price
for the extra work cannot be agreed upon, Subcontractor agrees to perform the
work on the basis of its actual material and labor costs for the extra work
plus eighteen percent (18%) of the actual labor and material cost of the extra
work for overhead and profit. Contractor shall not be liable for payment for
any extra work performed by Subcontractor, unless such work is expressly authorized
by Contractor in writing and Contractor is entitled to payment for same from
Owner.


 





















 


ARTICLE 5.
-  SUBCONTRACTOR PROVISIONS


 


A.                                    Labor, Materials, and Services. The Subcontractor shall
furnish all of the labor, materials, and services, including, but not limited
to, competent supervision, shop drawings, samples, and tools as are necessary
for the proper performance of the Subcontractor’s Work.


 


B.                                    Duty to Cooperate. The Subcontractor shall cooperate with the
Contractor and all others whose work may interfere with the Subcontractor’s
Work. The Subcontractor shall specifically note and immediately advise the
Contractor of any such interference with the Subcontractor’s Work, and
participate in the preparation of coordination drawings and work schedules in
areas of congestion.


 


C.                                    Clean-up and Safety. The Subcontractor shall follow the
Contractor’s cleanup and safety directions, and at all times keep the building
and premise tree from debris and unsafe conditions resulting from the Subcontractor’s
Work.. If the Subcontractor fails to immediately commence compliance with such
safety duties or commence cleanup duties within twenty-four (24) hours after
receipt from the Contractor of written notice of noncompliance, the Contractor may implement
such safety or cleanup measures without further notice and deduct the cost
thereof from any amounts due or to become due to the Subcontractor.


 


D.                                    Protection of Property. The Subcontractor shall
take necessary precautions to properly protect the work of others from damage
caused by the Subcontractor’s operations. Should the Subcontractor cause damage
to the Work or property of the Owner, the Contractor or others, the
Subcontractor shall promptly remedy such damage to the satisfaction of the
Contractor, or the Contractor may so remedy and deduct the cost thereof
from any                                               amounts due or
to become due to the Subcontractor.


 


E.                                     Taxes, Permits, Fees, Licenses, etc. The Subcontractor shall give
adequate notices to authorities pertaining to the Subcontractor’s Work and secure
and pay for all permits, fees, licenses, assessments, inspections and taxes
necessary to complete the Subcontractor’s Work in accordance with the Contract
Documents.


 


F.                                      Assignment of Contract. The Subcontractor shall not
assign this Agreement nor its proceeds nor subcontract the whole of the
Subcontractor’s Work without prior written approval of the Contractor.


 


G.                                    Notice of Non-Contracted Services. The Subcontractor agrees
that no claim for non-contracted construction services rendered or materials
furnished shall be valid unless the Subcontractor provides the Contractor with
written notice prior to furnishing of the services or materials.


 


H.                                   Subcontractor Responsibility for Work. Although the Contractor
shall establish the principle axis lines of the building and the site, the
Subcontractor shall layout and be strictly responsible for the accuracy of the
Subcontractor’s Work and for any loss or damage to the Contractor or others by
reason of the Subcontractor’s failure to set out or perform its work correctly.


 





















 


I.                                        Workmanship. Every part of the Subcontractor’s Work shall
be executed in strict accordance with the Contract Documents in the most sound,
workmanlike, and substantial manner. All workmanship shall be of the best of
its several kinds, and all materials used in the Subcontractor’s Work shall be
furnished in ample quantities to facilitate the proper and expeditious
execution of the work, and shall be new except such materials as may be expressly
provided in the Contract Documents to be otherwise.


 


J.                                        Skill and Care. In the event the scope of the Subcontractor’s Work
includes installation of materials or equipment furnished by others, it shall
be the responsibility of the Subcontractor to examine the items so provided and
thereupon handle, store and install the items with such skill and care as to
ensure a satisfactory and proper installation.


 


K.                                   Substitutions. No substitutions shall be made in the
Subcontractor’s Work unless permitted in the Contract Documents and only then
upon the Subcontractor receiving all approvals required under the Contract Documents
for substitutions. The Subcontractor shall indemnify the Contractor as a result
of such substitutions, whether or not the Subcontractor has obtained approval
thereof.


 


L.                                     Performance and Payment Bonds. Subcontractor will provide
Performance and Payment Bonds as required by the Contractor. Any such bonds
shall be in the forms attached hereto as Exhibit C and Exhibit D and
shall be by a surety satisfactory to the Contractor. The Contractor shall be listed
as the obligee on each such bond. In lieu of such surety bonds, the
Subcontractor may, at his option, deliver a certified check in the amount of
100% of the contract price to secure Subcontractor’s performance of the Work
hereunder and Subcontractor’s full payment of Subcontractor’s
sub-subcontractors and suppliers.


 


M.                                 As-Built Records. The Subcontractor wm maintain a written
as-built record of all changes in his work and submit this in information to
the designated Contractor Superintendent each day and a complete record to the
Contractor at the end of the work.


 


N.                                    Warranty. The Subcontractor guarantees and warrants its work
against all deficiencies and defects in materials and/or workmanship as called
for in the Contract Documents.


 


ARTICLE 6.
-  RECOURSE BY CONTRACTOR


 


A.                                    If the
Subcontractor refuses or fails to supply enough properly skilled workers,
proper materials, or maintain the Schedule of Work, or it fails to make
prompt payment for its workers, lower-tier subcontractors or suppliers, disregards
taws, ordinances, rules, regulations or orders of any public authority having
jurisdiction, or otherwise is guilty of a material breach of a provision of
this Agreement, the Subcontractor shall be deemed in default of this Agreement.
The Subcontractor shall within two (2) working days after receipt of
written notice commence and continue satisfactory correction of such default
with diligence and promptness.


 


B.                                    If the
Subcontractor fails to commence and satisfactorily continue correction of a
default within two (2) working days after receipt of the notice issued
under Paragraph A, then the Contractor may issue a second written notice,
by certified mail, to the Subcontractor and its surety, if any. Such notice
shall state that if the Subcontractor fails to commence and continue 


 





















 


correction of default within
two (2) working days after receipt of the notice, the Agreement will be
deemed terminated and the Contractor may use any materials furnished by
the Subcontractor to complete the Subcontractor’s Work. The Contractor also may furnish
materials, equipment and/or employ such workers or subcontractors as the
Contractor deems necessary to maintain the orderly progress of the Work. All of
the costs incurred by the Contractor in so performing the Subcontractor’s Work,
including reasonable overhead and attorney’s fees, shall be deducted from any
monies due or to become due to the Subcontractor. The Subcontractor shall be
liable for the payment of any amount by which such expense may exceed the
unpaid balance of the subcontract price.


 


C.                                    If
Subcontractor files a petition under the Bankruptcy Code, this Agreement shall
terminate if the Subcontractor or the Subcontractor’s trustee rejects the
Agreement or, if there has been a default.


 


D.                                    Should the
Owner suspend or terminate the Contract or any part of the Contract which
includes the Subcontractor’s Work, the Contractor shall so notify the
Subcontractor in writing and upon receipt of notice, the Subcontractor shall
immediately suspend the Subcontractor’s Work, follow all of Contractor’s
instructions, and mitigate all costs. In the event of such Owner suspension,
the Contractor’s liability to the Subcontractor is limited to the extent of the
Contractor’s recovery on the Subcontractor’s behalf under the Contract
Documents.


 


E.                                     In addition to
its rights under the FAR “Termination” Clauses, as incorporated herein, the Contractor
may terminate this Subcontract either in whole or in part without
cost to either party if the Owner does not, for whatever reason, execute the
Contract.


 


ARTICLE 7.
-  INDEMNIFICATION


 


A.                                    To the fullest
extent permitted by law, the Subcontractor shall indemnify and hold harmless
the Owner, and the Contractor and all of their agents and employees from and
against all claims, damages, loss and expenses, including but not limited to
attorney’s fees, arising out of or resulting from the performance of the
Subcontractor’s Work provided that any such claim, damage, Joss, or expense
attributable to bodily injury, sickness, disease, or death, or to injury to or
destruction of tangible property including the loss of use, resulting
therefrom, to the extent caused or alleged to be caused in whole or in part by
any negligent act or omission of the Subcontractor or anyone directly or
indirectly employed by the Subcontractor or for anyone for whose acts the
Subcontractor may be liable, regardless of whether it is caused in part by
a party indemnified hereunder, and such obligation shall not be construed to
negate, or abridge, or otherwise reduce any other right or obligation of
indemnity which would otherwise exist as to any party or person described in
this Article 7.


 


B.                                    In any and all
claims against the Owner or the Contractor or any of their agents or employees,
by any employee of the Subcontractor, anyone directly or indirectly employed by
the Subcontractor or anyone for whose acts the Subcontractor may be
liable, the indemnification obligation under this Article 7 shall not be
limited in any way by any limitation on the amount or type of damages, compensation
or benefits payable by or for the Subcontractor under workers or workmen’s
compensation acts, disability benefit acts or other employee benefit acts.


 





















 


C.                                    The
Subcontractor agrees to be bound by, and at its own cost, comply with all
federal, state and local laws, ordinances and regulations applicable to the
Subcontractor’s Work including, but not limited to, the applicable Federal
Acquisition Regulations agency supplemental regulations, equal employment
opportunity, minority business enterprise, women’s business enterprise
disadvantaged business enterprise, safety, and all other laws with which the
Contractor must comply according to the Contract Documents. The Subcontractor
shall be liable to the Contractor and the Owner for all loss, cost and expense
attributable to any acts of commission or omission by the Subcontractor, its
employees and agents resulting from the failure to comply therewith including
but not limited to any fines, penalties or corrective measures.


 


D.                                    The
Subcontractor shall pay all royalties and license fees that may be due on
the inclusion of any patented materials in the Subcontractor’s Work. The
Subcontractor shall defend all suits for claims for infringement of any patent
rights arising out of the Subcontractor’s Work, which may be brought
against the Contractor or Owner, and shall be liable to the Contractor and
Owner for all loss, including all costs, expenses, and attorney’s fees.


 


E.                                     The
Subcontractor agrees to indemnity and hold harmless the Contractor from any
liability to the Owner arising out of an alleged violation of certification
requirements of the Contract Disputes Act, the Prompt Payment Act, or other
federal statute relating to the validity of Subcontractor claims, proposals, applications
or requests for payment.


 


ARTICLE 8.
-  INSURANCE


 


A.                                    Prior to start
of the Subcontractor’s Work, the Subcontractor shall procure for the
Subcontractor’s Work and maintain in force Worker’s Compensation Insurance,
Employer’s Liability Insurance, Comprehensive General Liability Insurance,
Automobile Liability Insurance and all insurance required of the Contractor
under the Contract Documents. The Contractor and Owner shall be named as
additional insureds on each of these policies except for Worker’s Compensation.
This insurance shall include contractual liability insurance covering the Subcontractor’s
obligations under Article 7.


 


B.                                    The
Subcontractor’s Comprehensive General and Automobile Liability Insurance, as
required by Paragraph A, shall be written with limits of liability not less
than the following: 


 


	
  GENERAL LIABILITY:

  	
   

  	
  EACH

  OCCURRENCE

  	
   

  	
  AGGREGATE

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Comprehensive
  Form

  	
   

  	
  $

  	
  500,000.00

  	
   

  	
  $

  	
  500,000.00

  	
   

  
	
  Premises -
  Operation

  	
   

  	
  $

  	
  500,000.00

  	
   

  	
  $

  	
  500,000.00

  	
   

  
	
  Products/Completed &
  Operations Hazard

  	
   

  	
  $

  	
  500,000.00

  	
   

  	
  $

  	
  500,000.00

  	
   

  
	
  Contractual
  Insurance

  	
   

  	
  $

  	
  500,000.00

  	
   

  	
  $

  	
  500,000.00

  	
   

  
	
  Broad Form Property
  Damage

  	
   

  	
  $

  	
  500,000.00

  	
   

  	
  $

  	
  500,000.00

  	
   

  
	
  Independent
  Contractors

  	
   

  	
  $

  	
  500,000.00

  	
   

  	
  $

  	
  500,000.00

  	
   

  
	
  Personal
  Injury (with contractual and employee exclusions deleted)

  	
   

  	
  $

  	
  500,000.00

  	
   

  	
  $

  	
  500,000.00

  	
   

  



 

















 


	
  AUTOMOBILE LIABILITY:

  	
   

  	
  EACH

  OCCURRENCE

  	
   

  	
  AGGREGATE

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Comprehensive
  Form: Bodily Injury (Each Person)

  	
   

  	
  $

  	
  500,000.00

  	
   

  	
  $

  	
  500,000.00

  	
   

  
	
  Bodily
  Injury (Each Occurrence)

  	
   

  	
  $

  	
  500,000.00

  	
   

  	
  $

  	
  500,000.00

  	
   

  
	
  Owned -
  Property Damage

  	
   

  	
  $

  	
  500,000.00

  	
   

  	
  $

  	
  500,000.00

  	
   

  
	
  Hired -
  Property Damage

  	
   

  	
  $

  	
  500,000.00

  	
   

  	
  $

  	
  500,000.00

  	
   

  
	
  Non-Owned –
  Bodily Injury and Property Damage Combined

  	
   

  	
  $

  	
  500,000.00

  	
   

  	
  $

  	
  500,000.00

  	
   

  



 


	
  WORKER’S COMPENSATION & EMPLOYER’S LIABILITY:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Statutory,
  in accordance with Statutory Requirements, each accident.

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


C.                                    The
Subcontractor shall maintain in effect all insurance coverage required under
this Agreement at the Subcontractor’s sole expense and with insurance companies
acceptable to the Contractor. All Insurance policies shall contain a provision
that the coverages afforded thereunder shall not be cancelled or not renewed,
nor restrictive modifications added, until at least thirty (30) days prior
written notice has been given to the Contractor. Certificates of Insurance, or
certified copies of policies acceptable to the Contractor, shall be filed with the
Contractor five (5) days prior to the commencement of the Subcontractor’s
Work. In the event the Subcontractor fails to obtain or maintain any insurance
coverage required under this Agreement, the Contractor may terminate this Agreement.


 


D.                                    The Contractor
and Subcontractor waive all rights against each other and the Owner for loss or
damage to the extent covered by Builder’s Risk or any other property insurance,
except such rights as they may have to the proceeds of such insurance.
Upon request of the Subcontractor, the Contractor shall provide the
Subcontractor with a copy of the Builder’s Risk policy in force for the
Project. The Subcontractor shall satisfy itself to the existence and extent of
such insurance prior to commencement of the Subcontractor’s Work. If the Owner
or Contractor have not purchased Builder’s Risk insurance for the full
insurable value of the Subcontractor’s Work, less a reasonable deductible, then
the Subcontractor may procure, at the Subcontractor’s expense, such
insurance as will protect the interests of the Subcontractor in the Work.


 


ARTICLE 9.
-  DISPUTES


 


9.0.                            All claims, disputes or other matters in controversy between
the Subcontractor and the Contractor relating to, or arising out of, the
performance of the Subcontract (hereinafter referred to as “Disputes”) shall be
resolved in accordance with the provisions of this Article 9.


 


9.1.                            Government Disputes.


 


9.1.1.                  Disputes for which the Contractor or the Subcontractor
contends that the Government may be responsible (“Government Disputes”)
shall be resolved pursuant to the Contract “Disputes” clause.


 


9.1.2.                  For any Government Dispute, the Subcontractor shall submit a
detailed claim to the Contractor including, for any claim in excess of $50,000,
an appropriate Subcontractor certification stating that: (a) the claim is made
in good faith, (b) the supporting 


 





















 


dates are accurate to the best of the
Subcontractor’s knowledge and belief, (c) the amount requested accurately
reflects the Subcontract adjustment for which the Subcontractor believes the
Government is liable, and (d) the certifying official is duly authorized
to certify the claim on behalf of the Subcontractor. The Contractor shall, upon
receipt of adequate information from the Subcontractor, submit an appropriate
corresponding claim to the cognizant Contracting Officer pursuant to the
Disputes clause of the Contract.


 


9.1.3.                  If a decision on any question of fact or law is issued by
the Contracting Officer under the Contract “Disputes” clause and the decision
relates to this Subcontract, said decision, if binding upon the Contractor under
the Contract, shall also be binding upon the Contractor and the Subcontractor
with respect to this Subcontract. However, if the Subcontractor is affected by
such decision and if the Contractor elects nor to appeal such decision to the
appropriate Board of Contract Appeals or bring suit at the Court of Federal Claims
under the “Disputes” clause of the Contract, the Contractor shall notify the
Subcontractor promptly. After receipt of such notice by the Contractor, if the
Subcontractor submits a timely request to the Contractor to appeal such
decision or bring suit, the Contractor shall file an appeal or bring suit. If
the Contractor appeals such decision or brings suit, whether at its ejection or
at the Subcontractor’s request, any decision on such appeal or suit, if binding
upon the Contractor under the Contract, shall be binding on the Contractor and
the Subcontractor as relates to this Subcontract.


 


9.1.4.                  If a decision on any question of fact or law is issued by a
Board of Contract Appeals or the Court of Federal Claims relates to this
Subcontract, said decision, if binding upon the Contractor under the Contract,
shall also be binding upon the Contractor and the Subcontractor with respect to
this Subcontract. However, if the Subcontractor is affected by such decision
and if the Contractor elects not to appeal such decision, the Contractor shall
notify the Subcontractor promptly. After receipt of such notice by the
Contractor, if the Subcontractor submits a timely request to the Contractor to
appeal such decision, the Contractor shall tile an appeal. If the Contractor
appeals such decision, whether at its election or at the Subcontractor’s
request, any decision on such appeal, if binding upon the Contractor under the
Contract, shall be binding on the Contractor and the Subcontractor as relates
to this Subcontract.


 


9.1.5.                  If any appeal or suit is taken or brought by the Contractor,
whether at its election or at the Subcontractor’s request, the Subcontractor
shall assist the Contractor in its prosecution thereof in every reasonable
manner and the Subcontractor shall be afforded reasonable opportunity to participate
in the prosecution thereof to the extent the Subcontractor’s interest may be
affected. To the extent requested by the Contractor, the Subcontractor shall
prosecute for the Contractor any appeal or suit taken or brought at the
Subcontractor’s request and, in such event, the Contractor shall assist the
Subcontractor in every reasonable manner. All costs and expenses incurred by
the Contractor and the Subcontractor in prosecuting any appeal or suit taken or
brought solely at the Subcontractor’s request shall be paid by the
Subcontractor.


 


9.1.6.                  If as a result of any decision or judgment which is binding
upon the Contractor and the Subcontractor, the Contractor is unable to obtain
payment or reimbursement from the Government under the Contract for, or is required
to refund or credit to the Government, any amount with respect to any item of
cost or fee for which the Contractor has paid or reimbursed the Subcontractor,
the Subcontractor shall, upon demand, promptly repay 


 





















 


such amount, plus interest calculated
as if it were interest paid under the Disputes Clause of the Contract, to the
Contractor.


 


9.1.7.                  The parties agree to accept the relief as to a time
extension or additional compensation from the Government, if any, as well as all
other aspects of the final decision under the Contract Disputes Act following
appeal or the expiration of the time for appeal as full and final resolution of
any Government Dispute. However, in the event relief is denied, in whole or in
part, by the trier of fact on the grounds that the Government is not
responsible for the claim, the event of delay or its consequences, then either
party will retain the right to pursue a Non-Government claim against the other
party.


 


9.1.8.                  The rights and obligations herein shall survive completion
of and final payment under this Subcontract.


 


9.2.                            Non-Government Disputes. All Disputes other than Government Disputes, as well as
any disputes between the parties remaining after final determination of a
Government Dispute, shall be resolved in accordance with these provisions.


 


9.2.1.                  All claims, disputes and matters in question arising out of,
or relating to, this Agreement or the breach thereof, that the parties are
unable to resolve using the Government Disputes clause as described above, shall
be decided by arbitration in accordance with the Construction Industry
Arbitration Rules of the American Arbitration Association then in effect
unless the parties mutually agree otherwise. This agreement to arbitrate shall
be specifically enforceable under the prevailing arbitration law.


 


9.2.2.                  Notice of the demand for arbitration shall be filed in
writing with the other party to this Agreement and with the American
Arbitration Association. The demand for arbitration shall be made within a
reasonable time after written notice of the claim, dispute or other matter in
question has been given, and in no event shall it be made after the date of
final acceptance of the Work by the Owner or when institution of legal or equitable
proceedings based on such claim, dispute or other matter in question would be
barred by the applicable statute of limitations, whichever shall first Occur.
The location of the arbitration proceedings shall be the duty of the Contractor’s
headquarters.


 


9.2.3.                  The award rendered by the arbitrator(s) shall be final and
judgment may be entered upon it in accordance with applicable Jaw in any
court having jurisdiction.


 


9.2.4.                  All Non-Government Disputes that are not resolved through
arbitration shall be resolved by litigation in a court of competent
jurisdiction in the State of Kentucky. Each party sha1l bear its own costs and
expenses in connection with Non-Government Disputes.


 


9.3.                            Duty to Continue Performance.


 


9.3.1.                  Unless otherwise agreed in writing, the Subcontractor shall
carry on the Work and maintain the Schedule of Work pending the resolution
of any dispute, whether the dispute falls under 9.1 (Government Disputes) or 9.2
(Non-Government Disputes). If the Subcontractor continues to perform in
accordance with this clause, the Contractor shall continue to make payments in
accordance with this Agreement.


 





















 


ARTICLE 10.
-  CONTRACT INTERPRETATION


 


A.                                    Should
inconsistencies or omissions appear in the Contract Documents, it shall be the
duty of the Subcontractor to so notify the Contractor in writing within three (3) working
days of the Subcontractor’s discovery thereof. Upon receipt of notice, the
Contractor shall instruct the Subcontractor as to the measures to be taken and
the Subcontractor shall comply with the Contractor’s instructions.


 


B.                                    Irrespective of
the place of performance, this Subcontract will be construed and interpreted in
accordance with the Federal Common Law of Government Contracts as enunciated
and applied by Federal judicial bodies, boards of Contract appeals and quasi-judicial
agencies of the Federal Government. To the extent that the Federal common law
of government contracts is not dispositive, the laws of the State of Kentucky shall
apply.


 


C.                                    The partial or
complete invalidity of anyone or more provisions of this Agreement shall not
affect the validity or continuing force and effect of any other provisions. The
failure of either party hereto to insist, in any one or more instances, upon
the performance of any of the terms, covenants or conditions of this Agreement,
or to exercise any right herein, shall not be construed as a waiver or
relinquishment of such term, covenant, condition or right as respects further
performance.


 


D.                                    Should either
party employ an attorney to institute suit or demand arbitration to enforce any
of the provisions hereof, to protect its interest in any matter arising under
this Agreement or to collect damages for the breach of the Agreement, or to
recover on a surety bond given by a party under this Agreement, the prevailing
party shall be entitled to recover reasonable attorney’s fees, costs, charges,
and expenses expended or incurred therein.


 


E.                                     This Agreement
is solely for the benefit of the signatories hereto and represents the entire
and integrated agreement between the parties hereto and supersedes all prior
negotiations, representations, or agreements, either written or oral.


 


F.                                      The following
Order of Precedence shall govern in the event of a conflict between the
documents of this Subcontract, provided, however, that the subcontract shall
not be interpreted as authorizing a violation of any Federal Statute or
Executive Order.


 


1.                                                                                      Articles 1
through 13 of this Subcontract.


 


2.                                                                                      Attachments I
through VII of this Subcontract.


 


3.                                                                                      Exhibit A,
Contract Clauses Incorporated by Reference.


 


4.                                                                                      Exhibit B,
Certifications and Representations.


 


ARTICLE 11.
-  CLAUSES INCORPORATED BY REFERENCE


 


A.                                    The clauses of
the Contract listed in Exhibits A and B hereto are hereby incorporated by
reference, with the changes stated below made to reflect the fact that this
Subcontract is between the Contractor and the Subcontractor, not the Government
and the 


 





















 


Contractor. By signing this
agreement, the Subcontractor certifies that it meets all of the certification
requirements in Exhibit B.


 


B.                                    As used in the listed
clauses, the term “Contract” shall mean this Subcontract, the terms “Contracting
Officer” and “Government” shall mean the Contractor, the term “Contractor”
shall mean the Subcontractor, and the term “COTR” shall mean Lusk Mechanical
Contractors, Inc. Job Site Superintendent (“LJSS”), except the terms “Government”
and “Contracting Officer” do not change: (1) in the phrases “Government
Property,” “Government-Owned Property,” “Government Equipment,” “Government
Furnished Equipment,” and “Government-Owned Equipment”; (2) when a right,
act, authorization or obligation can be granted or performed only by the
Government or the Contracting Officer or his duly authorized representative; (3) when
access to proprietary information or other proprietary data is required; and (4) when
title to property is to be transferred directly to the Government.


 


ARTICLE 12.
-  OSHA REGULATION 1926.404(B)


 


All
subcontractors must insure compliance with OSHA Regulation 1926.404(b). You
must provide your own Ground Fault Circuit Interrupters or establish your
Assured Equipment Grounding Conductor Program.


 


ARTICLE 13.
-  SPECIAL PROVISIONS


 


A.                                    The Contract
Documents and other special provisions, if any, are listed in Attachment I to
this Agreement.


 


B.                                    Once the
Subcontractor begins work, certified payroll reports are due weekly until the
Subcontractor’s Work is complete. Reports must be submitted for all interim
weeks regardless of whether work is performed during that week. The last
payroll report for a job must be marked “final”. If the Subcontractor has
multiple jobs, reports are required on each separate job.


 


C.                                    All badges
issued to the Subcontractor’s employees for the purpose of obtaining access to
the base will be returned to the Contractor, before final billing will be paid.
If the Subcontractor’s employees are working on other jobs for the Contractor,
badges will be returned at the completion of the last job.


 


D.                                    The Davis Bacon
wage decision for this job is listed on Attachment I and included as Attachment
II.


 


E.                                     The Subcontractor
agrees to comply with the Equal Employment Opportunity Policy presented in
Attachment III.


 


F.                                      The
Subcontractor agrees to comply with the Drug Free Workplace Policy presented in
Attachment IV.


 


G.                                    The Request for
Taxpayer Identification Number shall be completed and is included as Attachment
V.


 





















 


H.                                   The Lusk
Mechanical Contractors, Inc. Subcontractor Application for Payment and
Lien Waiver must be turned in for payment and included as Attachment VI.


 


I.                                        The Statement
and Acknowledgment Form, SF 1413, must be completed prior to beginning work on
any project, and is included as Attachment VII.


 


IN
WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.


 


	
   

  	
  CONTRACTOR

  
	
   

  	
   

  
	
   

  	
   

  
	
  WITNESS:

  	
  Lusk Mechanical Contractors, Inc.

  
	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SUBCONTRACTOR

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  WITNESS:

  	
   

  	
  Lightspace Corporation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
									



 

















 


EXHIBIT A 

CONTRACT CLAUSES


 


	
  FAR 52.203-5

  	
   

  	
  Covenant Against Contingent Fees (APR ]
  984)

  
	
  FAR 52.203-7

  	
   

  	
  Anti-Kickback Procedures (JUL 1995)
  (mandatory clause for subcontracts exceeding $100,000)

  
	
  FAR 52.203-10

  	
   

  	
  Price or Fee Adjustment for Illegal or
  Improper Activity (SEPT 1990)

  
	
  FAR 52.203-12

  	
   

  	
  Limitation on Payments to Influence Certain
  Federal Transactions (JAN ] 990)

  
	
  FAR 52.209-6

  	
   

  	
  Protecting the Government’s Interest when
  Subcontracting with Contractors Debarred, Suspended, or Proposed for
  Debarment (JUL 1995)

  
	
  FAR 52.2 14-26

  	
   

  	
  Audit and Records - Sealed Bidding (OCT]
  995) (mandatory clause for subcontracts that exceed $500,000)

  
	
  FAR 52.215-2

  	
   

  	
  Audit and Records - Negotiation (OCT] 995)
  (Mandatory clause for subcontracts that exceed the simplified acquisition
  threshold of $100,000)

  
	
  FAR 52.215-22

  	
   

  	
  Price Reduction for Defective Cost or
  Pricing Data (OCT 1995)

  
	
  FAR 52.215-23

  	
   

  	
  Price Reduction for Defective Cost or
  Pricing Data (OCT I995)

  
	
  FAR 52.215-24

  	
   

  	
  Subcontractor Cost or Pricing Data (OCT
  1995) (For each Subcontract that exceeds $500,000, clause is mandatory)

  
	
  FAR 52.215-25

  	
   

  	
  Subcontractor Cost or Pricing Data -
  Modifications (OCT 1995) (For each Subcontract that exceeds $500,000, clause
  is mandatory)

  
	
  FAR 52.215-33

  	
   

  	
  Order of Precedence (JAN 1986)

  
	
  FAR 52.215-39

  	
   

  	
  Reversion or Adjustment of Plans for Post
  Retirement Benefits Other Than Pensions (PRB) (MAR 1996) (Mandatory Clause in
  Subcontracts where cost or pricing data is required)

  
	
  FAR 52.217-8

  	
   

  	
  Option to Extend Services (AUG 1989)

  
	
  FAR 52.217-9

  	
   

  	
  Option to Extend the Term of the Contract
  (MAR 1989) (Notification to Subcontractor 30 days before Contract expires).

  
	
  FAR 52.219-8

  	
   

  	
  Utilization of Small, Disadvantaged and
  Women-Owned Business Concerns (OCT 1995)

  
	
  FAR 52.222-1

  	
   

  	
  Notice to the Government of Labor Disputes
  (APR 1984)

  
	
  FAR 52.222-3

  	
   

  	
  Convict Labor (APR 1984)

  
	
  FAR 52.222-4

  	
   

  	
  Contract Work Hours and Safety Standards
  Act - Overtime Compensation (JULY 1995) (clauses (a) through (e) are
  mandatory for subcontracts in excess of$1 00,600 and must be inserted into
  lower tier subcontracts)

  
	
  FAR 52.222-6

  	
   

  	
  Davis-Bacon Act (FEB ]995)

  
	
  FAR 52.222-7

  	
   

  	
  Withholding of Funds (FEB 1988)

  
	
  FAR 52-222-8

  	
   

  	
  Payrolls and Basic Records (FEB 1988)

  
	
  FAR 52.222-9

  	
   

  	
  Apprentices and Trainees (FEB 1988)

  
	
  FAR 52.222-10

  	
   

  	
  Compliance with Copeland Act Requirements
  (FEB 1988)

  
	
  FAR 52.222-11

  	
   

  	
  Subcontracts (Labor Standards) (FEB 1988)
  (In paragraphs (b)(I) and (b)(2) “14 days” is changed to “10 days”)

  
	
  FAR 52.222-12

  	
   

  	
  Contract Termination - Debarment (FEB 1988)

  
	
  FAR 52.222-13

  	
   

  	
  Compliance with Davis-Bacon Act and Related
  Act Regulations (FEB 1988)

  
	
  FAR 52.222-14

  	
   

  	
  Disputes Concerning Labor Standards (FEB
  1988)

  



 

















 


	
  FAR 52.222-26

  	
   

  	
  Equal Opportunity (APR /984) (Subparagraph
  (b)(l) through (b)(I 1) mandatory for all Subcontract and Purchase Orders)

  
	
  FAR 52.222-27

  	
   

  	
  Affirmative Action Compliance Requirements
  for Construction (APR 1984)

  
	
  FAR 52.222-28

  	
   

  	
  Equal Opportunity Preaward Clearance of
  Subcontracts (APR 1984)

  
	
  FAR 52.222-35

  	
   

  	
  Affirmative Action for Special Disabled and
  Vietnam Era Veterans (APR 1984) (Mandatory clause for subcontracts or
  Purchase Orders $1 0,000 and above)

  
	
  FAR 52.222-36

  	
   

  	
  Affirmative Action for Handicapped Workers
  (APR 1984) (Mandatory clause for Subcontract or Purchase Order in excess
  of$2,500)

  
	
  FAR 52.222-37

  	
   

  	
  Employment Reports on Special Disabled
  Veterans and Veterans of the Vietnam Era (JAN 1988) (Mandatory clause for
  Subcontract or Purchase Order $10,000 and above)

  
	
  FAR 52.223-2

  	
   

  	
  Clean Air and Water (APR 1984)

  
	
  FAR 52.223-6

  	
   

  	
  Drug Free Workplace (JUL 1990) (In
  paragraph (b) “30 days” is changed to “20 days”) FAR 52.225-5, Buy
  American Act - Construction Materials (MAY 1992)

  
	
  FAR 52.225-10

  	
   

  	
  Duty-Free Entry CAPR J984)

  
	
  FAR 52.225-11

  	
   

  	
  Restrictions on Certain Foreign Purchases (MAY 1992)
  (mandatory clause for all subcontracts)

  
	
  FAR 52.225-15

  	
   

  	
  Buy American Act - Construction Materials
  Under Trade Agreements Act and North American Free Trade Agreement (JAN 1996)
  (mandatory clause for subcontract at any tier)

  
	
  FAR 52.227-1

  	
   

  	
  Authorization and Consent (JUL 1995)
  (Mandatory clause for subcontracts)

  
	
  FAR 52.227-2

  	
   

  	
  Notice and Assistance Regarding Patent and
  Copyright Infringement (AUG 1996) (Mandatory clause for subcontracts)

  
	
  FAR 52.227-4

  	
   

  	
  Patent Indemnity - Construction Contracts
  (APR 1984)

  
	
  FAR 52.228-5

  	
   

  	
  Insurance - Work on a Government
  Installation (SEPT 1989) (Mandatory clause for subcontracts)

  
	
  FAR 52.229-3

  	
   

  	
  Federal, State and Local Taxes (JAN 1991)

  
	
  FAR 52.229-4

  	
   

  	
  Federal, State and Local Taxes
  (Noncompetitive Contract) (JAN 1991)

  
	
  FAR 52.229-5

  	
   

  	
  Taxes - Contracts Performed in U.S.
  Possessions or Puerto Rico (APR 1984)

  
	
  FAR 52.228-13

  	
   

  	
  Alternative Payment Protections (JUN 1996)

  
	
  FAR 52.228-15

  	
   

  	
  Performance and Payment Bonds -
  Construction (SEP 1996)

  
	
  FAR 52.232-5

  	
   

  	
  Payments under Fixed-Price Construction
  Contracts (APR 1989)

  
	
  FAR 52.232-10

  	
   

  	
  Payments Under Fixed-Price
  Architect-Engineer Contracts (AUG 1987)

  
	
  FAR 42.232-16

  	
   

  	
  Progress Payments (JUL 1991)

  
	
  FAR 42.232-17

  	
   

  	
  Interest (JUN 1996)

  
	
  FAR 42.232-20

  	
   

  	
  Limitation of Cost (APR 1984)

  
	
  FAR 42.232-22

  	
   

  	
  Limitation of Funds (APR 1984)

  
	
  FAR 52.232-23

  	
   

  	
  Assignment of Claims (JAN 1986)

  
	
  FAR 42.232-27

  	
   

  	
  Prompt Payment for Construction Contracts
  (MAR 1994) (Mandatory clause for subcontracts)

  
	
  FAR 42.233-1

  	
   

  	
  Disputes (OCTI995)

  



 

















 


	
  FAR 52.233-3

  	
   

  	
  Protest after Award (AVG 1989)

  
	
  FAR 52.236-1

  	
   

  	
  Performance of Work by the Contractor (APR
  1984)

  
	
  FAR 52.236-2

  	
   

  	
  Differing Site Conditions (APR 1984)

  
	
  FAR 52.236-3

  	
   

  	
  Site Investigation and Conditions Affecting
  the work (APR 1984)

  
	
  FAR 52.236-4

  	
   

  	
  Physical Data (APR 1984)

  
	
  FAR 52.236-5

  	
   

  	
  Material and Workmanship (APR 1984)

  
	
  FAR 52.236-7

  	
   

  	
  Permits and Responsibilities (NOV 1991)

  
	
  FAR 52.236-8

  	
   

  	
  Other Contracts (APR 1984) (TEXT DEVIATION)

  
	
  FAR 52.236-9

  	
   

  	
  Protection of Existing Vegetation,
  Structures, Equipment, Utilities, and Improvements (APR 1984)

  
	
  FAR 52.236-10

  	
   

  	
  Operation and Storage Areas (APR 1984)

  
	
  FAR 52.236-11

  	
   

  	
  Use and Possession Prior to Completion (APR
  1984)

  
	
  FAR 52.236-12

  	
   

  	
  Cleaning Up (APR 1984)

  
	
  FAR 52.236-13

  	
   

  	
  Accident Prevention (Alternate I) (NOV
  1991)

  
	
  FAR 52.236-14

  	
   

  	
  Availability and Use of Utility Services
  (APR 1984)

  
	
  FAR 52.236-15

  	
   

  	
  Schedules for Construction Contracts (APR
  1984)

  
	
  FAR 52.236-17

  	
   

  	
  Layout of Work (APR 1984)

  
	
  FAR 52.236-21

  	
   

  	
  Specifications and Drawings (APR 1984)

  
	
  FAR 52.236-23

  	
   

  	
  Responsibility of the Architect-Engineer
  Contractor (APR 1984)

  
	
  FAR 52.236-24

  	
   

  	
  Work Oversight in Architect-Engineer
  Contracts (APR 1984) (keep KO in)

  
	
  FAR 52.236-25

  	
   

  	
  Requirements for Registration of Designers
  (APR 1984)

  
	
  FAR 52.236.27

  	
   

  	
  Site Visit (Construction) (FEB 1995)

  
	
  FAR 52.237-2

  	
   

  	
  Protection of Government Buildings,
  Equipment, and Vegetation (APR 1984)

  
	
  FAR 52.242-13

  	
   

  	
  Bankruptcy (APR 1991) (Change “five days”
  to “three days”)

  
	
  FAR 52.242-14

  	
   

  	
  Suspension of Work (APR 1984) (In paragraph
  (c) change “20 days” to “15 days”)

  
	
  FAR 52.243-1

  	
   

  	
  Changes - Fixed-Price (Alternate HI) (APR
  (984)

  
	
  FAR 52.243-4

  	
   

  	
  Changes (AVG 1987) (In paragraph (d) change
  “20 days” to “15 days”)

  
	
  FAR 52.244-1

  	
   

  	
  Subcontracts (Fixed-Price) (FEB 1995)

  
	
  FAR 52.244-2

  	
   

  	
  Subcontracts (Cost - Reimbursement and
  Letter Contracts) (FEB 1997)

  
	
  FAR 52.245-19

  	
   

  	
  Government Property Furnished “As Is” (APR
  1984)

  
	
  FAR 52.246-12

  	
   

  	
  Inspection of Construction (JUL 1986)

  
	
  FAR 52.246-23

  	
   

  	
  Limitation of Liability (FEB 1997)

  
	
  FAR 52.246-21

  	
   

  	
  Warranty of Construction (Alternate I) (APR
  1984)

  
	
  FAR 52.249-2

  	
   

  	
  Termination for the Convenience of the
  Government (Fixed-Price) (APR 1984)

  
	
  FAR 52.249-7

  	
   

  	
  Termination (Fixed-Price Architect-Engineer)
  (APR 1984)

  
	
  FAR 52.249-14

  	
   

  	
  Excusable Delays (APR 1984)

  
	
  FAR 52.249-8

  	
   

  	
  Default (Fixed-Price Supply and Service)
  (APR 1984) FAR 52.249-10, Default (Fixed-Price Construction) (APR 1984) FAR
  42.251-1, Government Supply Sources (APR 1984)

  
	
  FAR 52.252-2

  	
   

  	
  Clauses Incorporated by Reference (JUN
  1988) FAR 52.252-6, Authorized Deviations in Clauses (APR 1984)

  
	
  FAR 52.253-1

  	
   

  	
  Computer Generated Forms (JAN 199 l)

  



 

















 


EXHIBIT B


 


CERTIFICATIONS AND REPRESENT A TIONS


 


	
  FAR 52.203-2

  	
   

  	
  Certificate of Independent Price Determination
  (APR 1985)

  
	
  FAR 52.203-11

  	
   

  	
  Certification and Disclosure Regarding
  Payments to Influence Certain Federal Transactions (AP R I 99 l)
  (Certification mandatory for subcontract awards at any tier)

  
	
  FAR 52.209-5

  	
   

  	
  Certification Regarding Debarment, Suspension,
  Proposed Debarment, and other Responsibility Matter (MAR 1996)

  
	
  FAR 52.214-2

  	
   

  	
  Type of Business Organization - Sealed
  Bidding (JUL I987)

  
	
  FAR 52.215-6

  	
   

  	
  Type of Business Organization (JUL 1987)

  
	
  FAR 52.215-11

  	
   

  	
  Authorized Negotiators (APR 1984)

  
	
  FAR 52.216-2

  	
   

  	
  Economic Price Adjustment - Standard
  Supplies (JAN 1997)

  
	
  FAR 52.222-15

  	
   

  	
  Certification of Eligibility (FEB 1988)

  
	
  FAR 52.222-21

  	
   

  	
  Certification of Nonsegregated Facilities
  (APR 1984) (Mandatory Certification for Subcontractor)

  
	
  FAR 52.222-21

  	
   

  	
  Certification of Nonsegregated Facilities
  (APR 1984)

  
	
  FAR 52.222-22

  	
   

  	
  Previous Contracts and Compliance Reports
  (APR 1984)

  
	
  FAR 52.222-25

  	
   

  	
  Affirmative Action Compliance (APR 1984)

  
	
  FAR 52.223-1

  	
   

  	
  Clean Air and Water Certification (APR
  1984) (Mandatory for non-exempt Subcontractor) FAR 52.223-3, Hazardous
  Material Identification and Material Safety Data (JAN 1997)

  
	
  FAR 52.225-1

  	
   

  	
  Buy American Certificate (DEC 1989)

  
	
  FAR 52.225-6

  	
   

  	
  Balance of Payments Program Certificate
  (APR 1985)

  
	
  FAR 52.225-8

  	
   

  	
  Buy American Act - Trade Agreements,
  Balance of Payments Program Certificate CJAN 1994)

  
	
  FAR 52.227-21

  	
   

  	
  Technical Data Certification, Revision, and
  Withholding of Payment - Major Systems (JAN 1987)

  
	
  FAR 52.230-1

  	
   

  	
  Cost Accounting Standards Notices and
  Certification (APR 1996)

  



 






 










 


LIGHTSPACE CORPORATION 

END USER AGREEMENT – NO.    


 


This End User Agreement,
including all Exhibits attached hereto, (collectively, “Agreement”) is made as
of                      ,
2004, (“Effective Date”) by and between LIGHTSPACE CORPORATION (“LIGHTSPACE”),
a Delaware corporation with a place of business at 125 CambridgePark Drive,
Cambridge, MA 02140, and a place of business corporation with principal a (“CUSTOMER”).


 


WHEREAS. CUSTOMER desires
to purchase the LIGHTSPACE Product(s) and Services specified herein and
LIGHTSPACE agrees to provide the Product(s) and Services 10 CUSTOMER subject to
this Agreement.


 


NOW THEREFORE, in
consideration of the mutual promises and conditions in this Agreement, the
parties hereby agree as follows:


 


1.                                      Definitions. Certain definitions used in
this Agreement, and not otherwise defined herein. are as follows:


 


“Applicable
Specifications” means the functional and operational characteristics of the
Product(s) as described in the LIGHTSPACE’s then-current published Documentation.


 


“Authorized Computer”
means the specific computer system or systems delivered by LIGHTSPACE for use
by the CUSTOMER on which all Software shall be installed and operate.


 


“Catalog” means LIGHTSPACE’s
Product catalog that is either published on LIGHTSPACE’s internet website or
otherwise made available in written farm, as modified from time to time by LIGHTSPACE.


 


“Confidential Information”
means any information disclosed by the Discloser which is or should be
reasonably understood by the Recipient to be confidential or proprietary to the
Discloser, including, but not limited to. the material terms of this Agreement.
pre-release information relating to Product(s,) product designs, marketing
plans, customer lists, prices, policies, practices, technical processes and formulas,
source codes and other software. sales, cost and other unpublished financial
information, product and business plans, projections, and marketing data. Confidential
Information does not include information (a) independently developed by
employees of Recipient who have not had direct or indirect access to Discloser’s
Confidential Information; (b) generally known to the public through no act
or omission of Recipient; or; (c) obtained by a Recipient from any third
party not owing any confidentiality obligation to the Discloser; provided that (i) no
such exception shall apply except to the extent clearly demonstrated by the
Recipient; and (ii) only the specific information that meets the exclusion
shall be excluded and not any other information that happens to appear in
proximity to such excluded portion (for example, a portion of a document may be
excluded without affecting the confidential nature of those portions that do
not themselves qualify for exclusion).


 


“Discloser” means the
party disclosing Confidential Information or on whose behalf Confidential
Information is disclosed and such of Discloser’s suppliers, contractors and
customers as provide information in connection herewith.


 


“Documentation” means all
installation instructions, operations guides, manuals, errata sheets, read
files, and other materials provided by LIGHTS PACE to CUSTOMER in conjunction
with the Product(s), in whale or in part, in printed or electronic form.


 


“Fees” means, collectively,
the license fees for the Software, fees for Services and the purchase price of
the Hardware, as applicable, as set forth in each Order.


 


“Hardware” means the Tile
Platforms, Authorized Computers, and any other computer hardware and any other
peripherals which attach thereto to be sold to CUSTOMER hereunder.


 


“Lightsofts” means the
LIGHTSPACE application software described in the LIGHTSPACE Catalog.


 


“Losses” has the meaning
set forth in Section 16.


 


“LPOS” means LIGHTSPACE’s
Proprietary Operating System software installed on the Hardware.


 


“Maintenance Releases”
means versions of the Software that consist of error corrections or patches
made to the Software that accomplish performance, structural, or functional
improvements and are 


 

















 


offered generally or
selectively to other subscribers for Software Maintenance, but excluding new
Product(s) or Services (unless such new Product(s) or Services are offered by LIGHTSPACE
as part of its Catalog and CUSTOMER has purchased a license permitting
access to such new Product(s) or Services).


 


“Objectionable” means any
information in any medium or format, including without limitation text, data,
graphics, audio or video, content (or use of the content), or any action or
behavior, that: (a) is libelous or defamatory, pornographic, sexually
explicit, or unlawful or that encourages any of the foregoing; (b) a
reasonable person would consider harassing, abusive, threatening, harmful,
vulgar, profane, obscene, excessively violent. racially, ethnically or
otherwise objectionable or offensive in any way or promotes bigotry, racism or harm
against any group or individual; (c) constitutes a breach of any person’s
privacy or publicity rights, a misrepresentation of facts, hate speech or an
infringement or misappropriation of any third party’s intellectual property
rights of any kind, including without limitation, copyright. patent, trademark,
industrial design, trade secret, confidentiality or moral rights; (d) promotes
software or services that deliver unsolicited email, including without
limitation, bulk e-mail, surveys. contests, “junk mail,” “spam,” or chain
letters; (e) disrupts or interferes with the security of, or otherwise
abuses, the Product(s). LIGHTSPACE’s network or internet web sites, or any
services, system resources, accounts, servers or networks connected to same or
any affiliated or linked programs or services; (I) is subject to any
restriction upon transmission under any law or under contractual or fiduciary
relationships (such as inside information, proprietary and confidential information
learned or disclosed as part of an employment relationship or under a
nondisclosure agreement); or (g) violates or encourages others to violate
any applicable law.


 


“Order” means LIGHTSPACE’s
form of written purchase order to be submitted by CUSTOMER to LIGHTSPACE
and to be executed by the parties, that lists the Product(s) and Services that
CUSTOMER desires to obtain from LIGHTSPACE.


 


“Participant” shall mean
a CUSTOMER employee, contractor or customer to whom CUSTOMER permits access to
the Subscribed Lightsofts upon the terms and conditions set forth herein.


 


“Product(s)” shall mean
the Hardware and Software and all related Documentation received by CUSTOMER
from LIGHTSPACE.


 


“Recipient” means the
party receiving Confidential Information hereunder.


 


“Services” shall mean any
Installation Services. Support Services (as defined in Exhibit 6 hereto),
custom development services or other consulting services provided by LIGHTSPACE
pursuant to LIGHTSPACE’s form of Master Consulting Agreement with such
changes as may be agreed upon by the parties (“MCA”).


 


“Site” means any physical
address location or installation venue, whether permanent, temporary or
portable, where the Product(s) am duly authorized by LIGHTSPACE to CUSTOMER for
use or rental.


 


“Software” means the
following software that operates on the Hardware: (i) the LPOS, the
Subscribed Lightsofts which operate on the LPOS, and any other software
licensed to CUSTOMER pursuant to an accepted Order that is proprietary to
LIGHTSPACE; (ii) any Third Party Software offered by LIGHTSPACE; and (iii) any
Maintenance Releases to the software described In clauses (i) and (ii).


 


“Subscribed Lightsofts”
means the Lightsofts to which CUSTOMER has obtained a license hereunder.


 


“Term” has the meaning
set forth in Section 13.


 


“Third Party Software”
means software that is proprietary to a third party that is licensed to
CUSTOMER by LIGHTSPACE.


 


“Tile Platforms” means
the interactive electronic tile platforms or the peripheral (non-interactive)
tile platforms and the connecting components for such tile platforms to be sold
to CUSTOMER hereunder.


 


“Use Period” means the
period during the Term during which CUSTOMER will have access to and the right
to use a particular Subscribed Lightsoft, as such period is specified in the
Catalog as of the date of the commencement such license, or as may otherwise
be agreed upon by the parties in writing.


 


2.                                      Purchase Orders. CUSTOMER shall submit an Order
to LIGHTSPACE for each purchase or license of Product(s) and Services. Each
Order shall specify: 


 


2





















 


(i) name
and LIGHTSPACE product code number of each Product and Services ordered, (ii) quantity
of each Product ordered, (iii) Fees for each Product or Service, (iv) requested
delivery date. if applicable. and (v) shipping instructions and shall
reference that It is a Order issued under the terms of this Agreement. All
Orders are subject to LIGHTSPACE’s written acceptance. LIGHTS PACE agrees to
use commercially reasonable efforts to notify CUSTOMER within five (5) days
of receipt of an Order if the Order has not been accepted by LIGHTSPACE. In the
event of a conflict between the terms of this Agreement and those appearing in
such Order, the terms and conditions of this Agreement shall prevail. Once an
Order has been accepted in writing by LIGHTSPACE, CUSTOMER may not amend
or cancel any Order without the prior written consent of LIGHTSPACE, Any
attempted amendment or cancellation shall result in CUSTOMER’s forfeiture of
the Fees paid by CUSTOMER at the time the Order was accepted by LIGHTSPACE.


 


3.                                      Grant of
Software License.
(a)  Software. Subject to the terms and conditions of this
Agreement and the payment of all applicable Fees, and Section 3(b) with
respect to access to and use of Lightsofts, LIGHTSPACE hereby grants to
CUSTOMER a non-exclusive, nontransferable license, without the right to
sublicense, to (i) use the Software in object code form for its
internal purposes solely on the number of Authorized Computer(s) and Tile
Platform(s) specified in an accepted Order (and with respect to Subscribed
Lightsofts, solely during the applicable Use Period for each Lightsoft); and (ii) permit
Participants to use the Software on the number of Authorized Computer(s) and
Tile Platform(s) specified in an accepted Order.


 


(b)                                 Lightsofts. During the Term, LIGHTSPACE
will provide or make available to CUSTOMER the right to subscribe to the Lightsofts
at the subscription level (“Subscription Level”) set forth in the applicable
Order. Subscribed Lightsofts will be licensed to Customer pursuant to Section 3(a) above.
CUSTOMER is under no obligation, at any time during the Term to subscribe to
any Lightsofts. LIGHTSPACE reserves the right to modify the Catalog and/or its
Fees from time to time to reflect its then current offerings of Lightsofts. At
any time during the Term and upon payment of the then-current applicable Fee,
CUSTOMER may upgrade CUSTOMER’s Subscription Level. The Fees are not
refundable, and CUSTOMER will not receive any rebate or refund for downgrading
CUSTOMER’s Subscription Level or terminating this Agreement at any time during
the Term.


 


(c)                                  Ownership. All rights not expressly
granted hereunder are reserved 10 LIGHTSPACE. LIGHTSPACE retains all rights,
title and interest in (i) the Software and Documentation, and (ii) all
data generated by CUSTOMER’s and its Participants’ use of the Subscribed
Lightsofts, including without limitation any and all patents, patent
applications, copyrights, trade secrets, trademarks and other intellectual
property rights, and CUSTOMER shall not take any action inconsistent with such
title and ownership. CUSTOMER acknowledges and agrees that this Agreement
grants to CUSTOMER no title or right of ownership in the Software,
notwithstanding the use herein of the words “sale,” “sell,” “sold,” “purchase”
and the like.


 


4.                                      Hardware. Title to all Hardware shall
pass to CUSTOMER when the Fees for such Hardware have been paid in full. If any
Hardware on which the Software has been installed becomes subject to the
security interest of a third party, the agreement under which such Hardware is
secured must include provisions providing that the secured party (and its
assigns) shall have no rights with respect to possession or use of the Software
as installed on such Hardware and shall be obligated to remove (or permit
CUSTOMER to remove) the Software upon any repossession of the Hardware. CUSTOMER
acknowledges and agrees that: (i) the Hardware provided by LIGHTSPACE may contain
video and photographic recording devices, (ii) LIGHTS PACE shall be
permitted to use such devices to transmit and record video and photographic
images of CUSTOMER’s Site, the Subscribed Lightsofts and/or the Hardware, for
diagnostic, product improvement and other such internal purposes.


 


5.                                      Restrictions on
Use. (a)  CUSTOMER
may move the Product(s) and Documentation freely from one Site to another
Site so long as the CUSTOMER: (i) does not exceed the licensed number of
Authorized Computers and Tile Platforms; and (ii) does not move or attempt
to move the Product(s} outside the United States. CUSTOMER agrees that it will
not use or permit the Product(s) to be used in any manner, whether directly or
indirectly, that would enable CUSTOMER’s employees, contractors or agents or
any third party to use the Software on any computer system other than on the
number of licensed Authorized Computer(s) and Tile Platform(s). LIGHTSPACE
reserves the right, upon reasonable notice, to audit CUSTOMER’s compliance with
the provisions herein related to use 


 


3





















 


of
Product(s) at the Site(s). CUSTOMER shall, at its cost and expense, take
actions to comply with such audit.


 


(b)                                 CUSTOMER shall not (i) copy,
rent. lease, sublicense, time share, distribute. reproduce, use or allow access
to the Product(s) except as explicitly permitted under this Agreement; (ii) modify,
adapt. translate, prepare derivative works from, reverse engineer, decompile or
otherwise attempt to derive source code from the Product(s) or any internal
data files generated by the Product(s), except to the extent that such activity
is expressly permitted by applicable law notwithstanding this limitation; or (iii) remove,
obscure, or alter LIGHTSPACE’s copyright notices, trademarks, or other
proprietary rights notices affixed to or contained within the Product(s).
CUSTOMER shall be allowed to duplicate Documentation for CUSTOMER’s internal
use only. The source code for the Software and other trade secrets embodied
therein are not disclosed to CUSTOMER.


 


(c)                                  CUSTOMER and its Participants
shall not use and shall not permit a third party to use the Product(s) in an
Objectionable manner. CUSTOMER acknowledges and agrees that: (i) Participants
may separately register with LIGHTSPACE for use of or access to certain
LIGHTSPACE software and materials, which software and materials may function
in conjunction with the Product(s) installed at the Site; and (ii) LIGHTSPACE
does not pre-screen Participants’ use of LIGHTSPACE software and materials or
Participants’ development of software and materials that may function in
conjunction with the Product(s} installed at the Site, nor shall LIGHTSPACE
assume any responsibility for any Objectionable material therein. Customer will
be liable for any breach of this Agreement by a Participant.


 


(d)                                 CUSTOMER is only being granted
the rights to use the Product(s) at the Sites and shall not export or
re-export, directly or indirectly (including via remote access) Product(s) or
other information or materials provided by LIGHTSPACE hereunder, to any country
for which the Uni1ed States or any other relevant jurisdiction requires any
export license or other governmental approval at the time of export without
first obtaining such license or approval. CUSTOMER shall defend and indemnify
LIGHTSPACE from and against any Losses arising out of any claim that Product(s)
or other information or materials provided by LIGHTS PACE hereunder were
exported or otherwise accessed, shipped or transported in violation of
applicable laws and regulations. CUSTOMER agrees that it will comply with all
applicable federal, state, and local laws and regulations governing the use of
the Product(s).


 


6.                                      Services. (a) Installation
Services. CUSTOMER may, pursuant to an Order, request that LIGHTSPACE perform installation
services with respect to the Product(s) (“Installation Services”). Such Installation
Services shall be performed at LIGHTSPACE’s then current rates as set forth in
the applicable Order. Upon receipt of such Order requesting Installation
Services, LIGHTSPACE shall make arrangements with CUSTOMER to install the
Product(s) at the agreed upon Sites. LIGHTSPACE shall not perform any customization
of the Product(s) in connection with the Installation Services, unless such
customization is accomplished pursuant to Section 6(c) hereof.


 


(b)                                 Maintenance and Support. LIGHTSPACE’s current support
policy for the Software (as amended from time to time by LIGHTSPACE, the “Support
Policy”) is set forth in Exhibit 6 hereto. CUSTOMER may elect to
obtain Support Services (as defined in the Support Policy) for the Software at
LIGHTSPACE’s current price and may, pursuant to the Support Policy, elect to
renew support at such prices and upon such terms and conditions as LIGHTSPACE may publish
from time to time. If CUSTOMER elects to obtain Support Services, the terms of
this Agreement. supplemented by the Support Policy terms, shall govern the
support arrangements. Any Maintenance Releases of the Software delivered by way
of support services shall be treated for all purposes under this Agreement as
Software and all intellectual property rights therein shall be retained by LIGHTSPACE.


 


(c)                                  Customization and Consulting
Services. During
the Term, LIGHTSPACE may, upon request. provide or make available to CUSTOMER
customization and consulting services as shall be mutually agreed upon by the
parties. CUSTOMER is under no obligation, at any time during the Term to obtain
such customization and consulting services. Any requested LIGHTSPACE
customization or consulting service shall be provided pursuant to the terms of
the MCA.


 


7.                                      Shipments. Product(s) will be shipped
F.O.B. LIGHTSPACE’s principal place of business at 125 CambridgePark Drive,
Cambridge, MA 02140. CUSTOMER is responsible for the cost of all shipping, handling,
insurance and any fees, taxes and duties. All risk of loss with respect to the
Product(s) shall pass to CUSTOMER when such Product(s) are delivered to the
carrier for shipment to CUSTOMER. Unless previously agreed to by LIGHTSPACE, 


 


4





















 


Product(s)
shall be shipped in LIGHTSPACE’s standard packaging.


 


8.                                      Delivery and
Acceptance. (a) Delivery
schedules for the Product(s) are subject to LIGHTSPACE’s then-current lead
times and Product(s) availability. LIGHTSPACE will make reasonable efforts to meet
delivery dates quoted or acknowledged, but shall in no event be liable for
failure to meet any such daters). LIGHTSPACE shall have the right to deliver
Product(s) prior to any agreed upon delivery date. LIGHTSPACE reserves the
right to make deliveries in installments and any Order or invoice shall be
severable as to any such installments. Delay in delivery or default of any
installment shall not relieve CUSTOMER of its obligation to accept and pay for
remaining installments. CUSTOMER shall carefully inspect all deliveries of Product(s)
as they are received by CUSTOMER and report to LIGHTS PACE promptly, but in any
event within seven (7) calendar days after receipt of shipment (“Inspection
Period”), any alleged error, shortage. defect or nonconformity of such Product(s).
CUSTOMER’s acceptance of each purchase or license of Product(s) (in each case,
an “Acceptance”) shall occur as follows:


 


(i)                                     If CUSTOMER shall not have
purchased LIGHTSPACE’s Installation Services, then CUSTOMER shall be deemed to
have Accepted Product(s) upon the expiration of the Inspection Period, if
CUSTOMER shall not have notified LIGHTSPACE of any non-conformity in the
Product(s) prior to the expiration of such period.


 


(ii)                                  If CUSTOMER shall have purchased
LIGHTSPACE’s Installation Services, then upon the installation of the
Product(s) by LIGHTSPACE, CUSTOMER shall demonstrate such Acceptance of the
Product(s) by immediately signing and delivering to LIGHTSPACE, LIGHTSPACE’s form of
Customer Acceptance Form, as provided by LIGHTSPACE to Customer.


 


Notwithstanding the
foregoing, any production use by CUSTOMER of the Product(s) shall be deemed to
be CUSTOMER’s Acceptance of the Product(s) for purposes of this Section. The
foregoing shall be CUSTOMER’s sole and exclusive means of Acceptance of the
Product(s).


 


9.                                      Payment Terms. (a) CUSTOMER shall pay to
LIGHTSPACE the applicable Fees in the amounts and on the dates set forth in
each Order. CUSTOMER shall pay for each Order as follows: (/) (or Product(s).
Customer shall pay 50% o( the applicable Fees set forth in the Order at the
time the Order is placed, and the remaining 50% upon the Acceptance of
Product(s) by CUSTOMER in accordance with Section 8 above: (ii) for
Maintenance and Support Services, Customer shall pay the applicable Fees in
accordance with Exhibit 8 and, (iii) for consulting services in
accordance with the MCA. In the event of an adverse change in CUSTOMER’s
creditworthiness, as determined by UGHTSPACE in its good faith judgment,
LIGHTSPACE may require alternative payment terms for Product(s) or
withhold or suspend the shipment of Product(s). Payment shall be In U.S.
dollars. All payments shall be due and payable upon receipt by CUSTOMER of
LIGHTSPACE’s invoice.


 


(b)                                 CUSTOMER grants to LIGHTSPACE a
security interest in all Product(s) in the amount of the Fees payable, plus all
other amounts due hereunder and all costs of collection incurred by LIGHTSPACE
(including but not limited to court costs and reasonable attorneys’ fees), and
any proceeds therefrom, and agrees that LIGHTSPACE retains, in addition to any
other rights of LIGHTSPACE, a right of repossession in such Product(s) until
such time as CUSTOMER has paid for such Product(s) in full, or a right to
require CUSTOMER to effect (at CUSTOMER’s expense) return delivery of such Product(s)
to LIGHTSPACE. CUSTOMER agrees to cooperate and execute all financing
statements and other documents as may be necessary for LIGHTSPACE to
perfect a security interest In the Product(s), and hereby authorizes a
designated representative of LIGHTSPACE to file any financing statement without
the signature of the CUSTOMER, to the extent permitted by applicable law, and
to file a copy of this Agreement in lieu of a financing statement, in
connection with the perfection of such security interest. Overdue amounts shall
bear interest in an amount equal to one and one-half percent (1.5%) of the
unpaid balance per month (or portion thereof), or if less, at the highest
interest rate permitted by applicable law, calculated monthly from the date
payment was due until the date payment is made. CUSTOMER shall not withhold or
set off from any amounts due to LIGHTSPACE, any amounts claimed to be owed by LIGHTSPACE
to CUSTOMER for any reason whatsoever.


 


(c)                                  Fees included in accepted Orders
are exclusive of all shipping charges and all federal, state, municipal and all
other governmental excise, sales, use, and similar taxes, duties, or tariffs.
CUSTOMER agrees to pay all such shipping charges. taxes, duties, and tariffs.
CUSTOMER must provide LIGHTSPACE with written certification for any 


 


5





















 


claim
of tax or other exemption prior to shipment of Product(s) or the performance of
Services. If LIGHTSPACE is required to pay additional taxes, duties, and tariffs
CUSTOMER shall immediately reimburse and hold LIGHTS PACE harmless for all such
taxes.


 


10.                               Limited
Warranty. (a) 
Unless otherwise specified in the Order, for a period of ninety (90) days from
the date of Acceptance (“Warranty Period”), LIGHTSPACE warrants that the unaltered
Product(s) will substantially conform to the Applicable Specifications. During
the Warranty Period, nonconforming Product(s) may be returned by CUSTOMER
if CUSTOMER; (i) obtains a RMA from LIGHTSPACE in accordance with Section 11;
(ii) returns nonconforming Product(s) by a method of shipment approved by UGHTSPACE;
and (iii) Product(s) are received by LIGHTSPACE in good condition, without
their markings altered, defaced, or removed. and accompanied with a written
description of the defect(s). The foregoing warranty does not apply to (A) any
Product(s) (A) that have been subject to, misuse, neglect, accident or
which are not capable of being tested by LIGHTSPACE under its normal test
conditions, or (B) any alterations, modifications, combinations or enhancements
of the Product(s) not created by LIGHTS PACE. LIGHTS PACE shall have no
liability for any warranty claim based upon the combination, operation, or use
of the Product(s). with equipment, data. or software not furnished by LIGHTSPACE.
LIGHTSPACE does not warrant that the Product(s) are error free, will operate
without interruption or are compatible with all equipment and/or software
configurations. CUSTOMER acknowledges that use of the Product(s) may result
in unexpected results, loss of data or other unpredictable damage or loss to
CUSTOMER. LIGHTSPACE’s sole and exclusive liability and CUSTOMER’s sole and
exclusive remedy for any breach of the foregoing warranty shall be, at
LIGHTSPACE’s option, to repair, replace, or refund the Fees paid by CUSTOMER
for the defective Product(s).


 


(b)                                 EXCEPT AS PROVIDED IN THIS
SECTION, LIGHTSPACE MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT
TO THE PRODUCT(S), INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, NON INTERFERENCE
WITH ENJOYMENT AND ALL OTHER WARRANTIES ARISING OUT OF OR IN CONNECTION WITH
THE SALE, LICENSE, AND/OR PURCHASE OF THE PRODUCT(S), OR THE USE, REPAIR OR
PERFORMANCE THEREOF, OR ANY COURSE OF DEALING OR COURSE OF PERFORMANCE UNDER ANY
AGREEMENT BETWEEN CUSTOMER AND LIGHTSPACE.


 


11.                               Return Policy. CUSTOMER must obtain a Retum
Material AUlhorization (“RMA”) prior to returning any Product(s) to LIGHTSPACE
for any reason. Product(s) returned to LIGHTS PACE without an RMA will not be
accepted and will be returned to CUSTOMER al CUSTOMER’s sole risk and expense.
CUSTOMER shall be responsible for the cost of all shipping, handling. and insurance
for all Product(s) returned to LIGHTSPACE. CUSTOMER may return defective
Hardware to LIGHTSPACE only during the Warranty Period; thereafter LIGHTSPACE
will use commercially reasonable efforts to repair Hardware at LIGHTSPACE’s
then-current hourly rates.


 


12.                               Discontinuance
of Product(s). LIGHTSPACE
reserves the right to discontinue Dr withdraw any Product(s) from its Catalog
at any time, LIGHTSPACE will use commercially reasonable efforts to provide
CUSTOMER with three (3) months prior written notice of any such
discontinuance or withdrawal of Product(s) from its Catalog. CUSTOMER shall
have the right to make a last-time purchase of such discontinued or withdrawn
Product(s), provided CUSTOMER accepts delivery of all such Product(s) within
three (3) months from the date of LIGHTSPACE’s notice of discontinuance or
withdrawal. With respect to Subscribed Lightsofts that are discontinued, upon
written request by CUSTOMER, CUSTOMER may be offered the right to obtain a
perpetual license for such discontinued Lightsoft on terms to be mutually
agreed upon in writing by both LIGHTSPACE and CUSTOMER.


 


13.                               Term and
Termination. (a) The
term of this Agreement shall commence as of the Effective Date and shall remain
in force until terminated by either party in accordance with this Section (“Term”).


 


(b)                                 Either party may terminate
this Agreement on not less than thirty (30) days prior written notice if the
other party (i) is in material breach of any provision of this Agreement
and the party in breach does not cure said breach within such thirty (30) day
period, (ii) files a petition in bankruptcy, Dr has such petition filed
against it (which petition is not discharged within thirty (30) days after such
filing). (iii) makes an assignment for the benefit of creditors, or if a
receiver, trustee. custodian or similar agent is appointed or takes possession
of its assets, or 


 


6





















 


(iv) generally
ceases business in the ordinary course. LIGHTSPACE shall have the right to
terminate any outstanding Order issued under this Agreement and to refuse any
new Order if CUSTOMER commits any breach of this Agreement and fails to remedy
such breach within thirty (30) days after written notice by LIGHTSPACE of such
breach. Continued shipment by LIGHTSPACE following CUSTOMER’s default shall not
constitute any waiver by LIGHTSPACE of its rights and remedies under this
Agreement nor shall it relieve the CUSTOMER of any its obligations herein. LIGHTSPACE’s
termination of this Agreement and/or repossession of the Product(s} shall be
without prejudice to any other remedies that LIGHTSPACE may have at law or
in equity.


 


(c)                                  Upon the expiration or
termination of this Agreement for any reason, the license and all other rights
granted hereunder to CUSTOMER shall immediately cease, and CUSTOMER shall
immediately: (i) return the applicable Software to LIGHTSPACE together
with all Documentation; (ii) purge all copies of the Software from any
other computer storage medium or device on which CUSTOMER has placed or
permitted others to place the Software; (iii) destroy LIGHTS PACE
Confidential Information in CUSTOMER’s custody, possession Dr control and
certify in writing to LIGHTSPACE within two (2) weeks that it has complied
with this Section; and pay to LIGHTSPACE all outstanding obligations under the
Agreement or Order. Notwithstanding the foregoing, Sections 1, 3(c), 4, 5,9,
10, 11 and 13-30 shall survive expiration or termination of this Agreement.


 


14.                               Confidential
Information. (a) Each
party acknowledges that Confidential Information of the other party may be
disclosed during the course of this Agreement. Each Recipient agrees that it
will (i) not disclose the Discloser’s Confidential Information to anyone
except to perform the Recipient’s obligations hereunder; (ii) take
steps that are substantially equivalent to the steps it takes to protect its
own proprietary information (and in any event no less than reasonable steps),
during the Term and following expiration or termination of this Agreement, to
prevent the duplication or disclosure of Discloser’s Confidential Information,
other than to its employees or agents who must have access to such Confidential
Information to perform such party’s obligations hereunder, who each agree
to comply with this provision; and (iii) use the Confidential Information
only for the purposes specifically permitted hereunder or if not stated herein,
solely to perform the Recipient’s Obligations hereunder. Each Recipient
shall bear the responsibility for breaches of this Section by any of its employees,
contractors Dr agents Irrespective of whether the breach occurs during or after
the period of the employment, agency or contractor relationship. LIGHTS PACE
shall have the right to refer to CUSTOMER as its customer, and may use
CUSTOMER as a reference account without any Obligation of confidentiality.


 


(b)                                 Either party may disclose
Confidential Information required to be disclosed by law; provided that it
shall (i) notify the Discloser hereunder promptly upon learning about any
Court Order or other legal requirement that purports to compel disclosure of
any Confidential Information; and (ii) cooperate with the Discloser (at
Discloser’s expense) in the exercise of the Discloser’s right to protect the
confidentiality of the Confidential Information before any tribunal or
governmental agency. Disclosure of Confidential Information pursuant to a court
order or other legal requirement that purports to compel disclosure of any
Confidential Information shall not constitute publication Dr otherwise alter
the character of that information as Confidential Information as between the parties
hereunder.


 


(c)                                  The parties agree that any
breach Dr threatened breach of this Section by a Recipient would cause not
only financial harm, but irreparable harm to the Discloser; and that money
damages will not provide an adequate remedy. In the event of a breach or
threatened breach of this Section by a Recipient, the Discloser shall, in
addition to any other rights and remedies it may have, be entitled (without
the necessity of posting any bond or surety) to an injunc1ion restraining the Recipient
from disclosing or using, in whole or in part, any Confidential Information


 


15.                               Limitation of
Liability.
EXCEPT FOR WITH RESPECT TO THIRD PARTY CLAIMS UNDER SECTION 16. MISUSE OF
LIGHTSPACE’S INTELLECTUAL PROPERTY AND BREACH OF THE CONFIDENTIALITY OBLIGATIONS
UNDER SECTION 14, NEITHER PARTY SHALL BE LIABLE FOR LOSS OF PROFITS OR
SAVINGS OR LOSS OF BUSINESS, INCLUDING BUT NOT LIMITED TO SPECIAL OR
CONSEQUENTIAL DAMAGES, WHICH MAYBE CAUSED BY, DIRECTLY OR INDIRECTLY, THE
INADEQUACY OF THE PRODUCT(S) FOR ANY PURPOSE OR USE THEREOF OR BY ANY DEFECT OR
DEFICIENCY THEREIN, EVEN IF SUCH PARTY HAS BEEN ADVISED, KNEW, OR SHOULD HAVE
KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR WITH 


 


7





















 


RESPECT
TO THIRD PARTY CLAIMS UNDER SECTION 16, MISUSE OF LIGHTS PACE’S
INTELLECTUAL PROPERTY AND BREACH OF THE CONFIDENTIALITY OBLIGATIONS UNDER SECTION 14,
EACH PARTY’S LIABILITY FOR DAMAGES, IF ANY, SHALL NOT EXCEED THE AMOUNTS PAID
TO LIGHTS PACE BY CUSTOMER FOR THE PRODUCT(S) UNDER THIS AGREEMENT, NO ACTION,
REGARDLESS OF FORM, ARISING OUT OF ANY TRANSACTION UNDER THIS AGREEMENT MAY BE
BROUGHT BY EITHER PARTY MORE THAN ONE YEAR AFTER THE INJURED PARTY HAS
KNOWLEDGE OF THE OCCURRENCE WHICH GIVES RISE TO THE CAUSE OF SUCH ACTION.


 


16.                               Indemnity. (a) By LIGHTSPACE. LIGHTSPACE
will defend, indemnify and hold harmless CUSTOMER, its subsidiaries, parent corporations.
affiliates, officers. directors, independent contractors, partners,
shareholders, employees. agents, successors and assigns from and against a
claim, suit. demand, loss, damage. expense (including reasonable attorney’s
fees) or liability asserted by a third party (collectively, “Losses”) arising
from or related to any third party claim that the Product(s) infringes a valid
United States patent, trademark or copyright. LIGHTS PACE shall have no
liability or obligation to CUSTOMER under this Section 16(a) with
respect to any claim in the event and to the extent based upon: (i) use of
the Product in an application or environment or on a platform or with
devices for which the Product was not designed or contemplated (it being expressly
agreed that the Software is intended to operate on the Hardware). (ii) modifications,
alterations, combinations or enhancements of 1he Product not created by LIGHTSPACE,
(iii) any patent, trademark or copyright in which CUSTOMER or any
affiliate has an interest, or (iv) failure of CUSTOMER to Install any
corrections or Maintenance Releases of the Product made available by LIGHTSPACE.
CUSTOMER shall indemnify and hold LIGHTS PACE harmless from all costs, damages
and expenses (including reasonable attorneys’ fees) arising from any claim
enumerated in clauses (i) through (iv) above. In addition, LIGHTSPACE,
at LIGHTSPACE’s option and expense, may (i) procure for CUSTOMER the
right to con1inue using such Product, (ii) replace or modify the Product
so it becomes noninfringing, or (iii) if options (i)-(ii) are not
available, terminate CUSTOMER’s license to the allegedly infringing Product and
pay to CUSTOMER an amount not to exceed the value of the Product for which
CUSTOMER has paid a fee, depreciated on a straight line basis over a three (3) year
period.


 


(b)                                 By CUSTOMER. CUSTOMER shall
defend, indemnify and hold LIGHTSPACE, its subsidiaries, parent corporations,
affiliates, officers, directors, independent contractors, partners,
shareholders, employees, agents, successors and assigns harmless against any
Losses to the arising from (1) CUSTOMER’s or its Participants’: (i) use
of the Product(s), including without limitation the posting or display of any
Objectionable material in connection with the Product(s); (ii) negligence
or intentional misconduct; or, (iii) failure to comply with applicable
laws; and (2) damage to or destruction of property of other persons or the
death or injury of third persons, including but not limited to employees or
invitees of LIGHTSPACE or CUSTOMER which damage, destruction, death or injury
results from or is caused by any act or omission of CUSTOMER, its employees. servants,
agents, or representatives.


 


(c)                                  Procedure. To receive the benefit of
indemnification under Sections 16(a) or 16(b),. the party seeking
indemnification must promptly notify the indemnifying party in writing of a
claim or suit and provide reasonable cooperation (at the indemnifying party’s
expense) and tender to the indemnifying party (and its insurer) full authority
to defend or settle the claim or suit. Neither party has any obligation to indemnify
the other party in connection with any settlement made without the indemnifying
party’s written consent. The indemnitee has the right to participate at its own
expense in the claim or suit and in selecting counsel therefor.


 


17.                               Notices: All notices relating to this
Agreement shall be in writing and delivered by courier or by hand or sent to
the other party by first class certified prepaid mail or by common carrier
with the ability to track and confirm delivery and shall be sent to the
following addresses:


 


To LIGHTSPACE:


 


Lightspace Corporation


125 CambridgePark Drive


Cambridge, MA 02140


Attn                        CEO


 


	
  To CUSTOMER:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attn:

  	
   

  	
   

  	
   

  
				



 


8

















 


Notices shall be deemed
to have been duly given (i) upon personal delivery, (ii) upon deposit
in the mail if mailed by certified mail, return receipt requested. postage
prepaid, (iii) upon deposit with a recognized courier with next-day
delivery instructions, or (iv) upon confirmation of transmission, if sent
by confirmed fax, to the address or fax number set forth below or such other
address or fax number as either party may specify by notice sent in
accordance with this Section 17.


 


18.                               Force Majeure. Except for CUSTOMER’s payment
obligations to LIGHTSPACE, neither party shall be responsible for failure to
fulfill its obligations under this Agreement due to causes beyond its
reasonable control including, but not limited to, accidents, labor disputes,
military conflicts, acts of government, acts of terrorism, insurrections,
riots, explosions, lightning, earthquakes. fires, storms and floods. No default
shall be caused by and LIGHTSPACE shall not be responsible to CUSTOMER for any
loss, damages, or penalty resulting from any delay or failure to perform the
obligations of LIGHTSPACE herein that are due to any cause beyond LIGHTSPACE’s control.
Anticipated delivery dates by LIGHTSPACE shall be deemed extended for a period of
time equal to the time lost due to any such delay excusable under this Section.


 


19.                               Governing Law
and Severability.
The validity, construction and performance of this Agreement shall be governed
by and construed in accordance with the laws of the Commonwealth of
Massachusetts without reference to choice of law principles. If any term or
provision of this Agreement or the application of any such provision of this
Agreement shall be held by a tribunal of competent jurisdiction to be contrary
to law, invalid or unenforceable, the remaining provisions of this Agreement
shall remain in fun force and effect. The United Nations Convention on
Contracts for the International Sale of Goods shall not apply to this
Agreement.


 


20.                               Resolution of
Disputes; Waiver of Jury Trial; Exclusive Remedies. In the event of any claim or
dispute between the parties hereto with respect to the interpretation or
application of this Agreement that cannot be reasonably resolved by a meeting
of the principal representative of the parties, such dispute shall be settled
by arbitration before three arbitrators (selected from a panel of persons
having experience with and knowledge of the subject matter of this Agreement,
at least one of whom shall be an attorney) in Boston, Massachusetts and
administered by the American Arbitration Association in accordance with its
Commercial Arbitration Rules, Any provisional or equitable remedy which would
be available from a court of law shall be available from the arbitrators to the
parties in such proceeding. Judgment upon the award of the arbitrators may be
enforced in any court having jurisdiction thereof, The parties hereby consent
to: (i) the jurisdiction of the federal or state courts sitting or located
in Boston, Massachusetts for any action: (a) to compel arbitration, (b) to
enforce the award of the arbitrators, (c) prior to the appointment and
confirmation of the arbitrators, for temporary, interim or provisional
equitable remedies; or (d) arising from or related to a breach of
confidentiality or misuse of LIGHTSPACE intellectual property; and (ii) service
of process in any such action by registered mail, return receipt requested, or
by any other means provided by law. EACH PARTY AND HEREBY VOLUNTARILY WAIVES
ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN.


 


21.                               Injunctive
Relief.
CUSTOMER agrees that any breach of this Agreement will cause LIGHTSPACE
irreparable harm and that the damage will be difficult to determine and that
money damages alone will not be an adequate remedy. Therefore, LIGHTSPACE shall
have the right to seek injunctive relief against any breach or threatened
breach of this Agreement.


 


22.                               U.S. Government
Restricted Rights.
If the Product(s) are acquired by or on behalf of a unit or agency of the
United States Government (the “Government”), the Government agrees that such
Product(s) include “commercial computer software” and “commercial computer
software documentation”, and that absent a written agreement to the contrary,
the Government’s rights with respect to such Product(s) are, in the case of
civilian agency use, RESTRICTED RIGHTS, as defined in FAR §52.227-19, and if
for the Department of Defense use, limited by the terms of this Agreement,
pursuant to DFARS §227.7202-1 through §227.7202-4 as applicable. The use of the
Product(s) by the Government constitutes acknowledgment of LIGHTSPACE’s
proprietary rights in the Product(s). Contractor/manufacturer is LIGHTSPACE. LIGHTSPACE’s
address is set forth at the end of this Agreement.


 


23.                               Modification,
Amendment, Supplement or Waiver. No modification, amendment, supplement or waiver of this
Agreement, or any to its provisions, 


 


9





















 


shall
be binding upon the parties hereto unless made in writing and duly signed by
both parties. Any waiver of a provision of this Agreement. or of a breach or
default under this Agreement. shall apply only in the specific instance and
purpose given, and shall not constitute a waiver of any other default. Any
failure or delay by either party to enforce compliance with any term or
condition of this Agreement shall not constitute a waiver of such term or
condition.


 


24.                               Entire
Agreement. This
Agreement, including all attachments, schedules and exhibits hereto,
constitutes the entire agreement between the parties in connection with the
subject matter hereof and supersede all prior and contemporaneous agreements,
understandings, negotiations and discussions, whether oral or written, of the
parties. and there are no warranties, representations and/or agreements among
the parties in conjunction with the subject matter hereof except as specifically
set forth or referred to herein. All attachments, schedules and exhibits hereto
are expressly incorporated by reference, and subject to. this Agreement, and in
the event of any conflict between the terms and provisions of this Agreement
and the terms and provisions of any such exhibit, schedule or attachment,
or any Order or other invoice or any written acceptance thereof. then the terms
and provisions this Agreement shall govern.


 


25.                               Assignment;
Successors. The
rights and licenses granted CUSTOMER hereunder are restricted solely and
exclusively to CUSTOMER. CUSTOMER shall not assign, transfer or sublicense this
Agreement or any of its rights or delegate the performance of any of CUSTOMER’s
obligations under this Agreement without the prior written consent of LIGHTSPACE.
Any such assignment, transfer, sublicense or delegation without LIGHTSPACE’s
prior written consent shall be void. All the terms and conditions of this
Agreement are binding upon and inure to the benefit of the parties hereto, and
their successors and assigns and legal representatives.


 


26.                               Relationship of
Parties. Both
parties will, in all matters relating to this Agreement, act as independent
entities. Neither party will take any action that assumes or creates, or
represent that it has any authority to assume or create, any obligation, order,
agreement, contract, or other binding commitment. express or implied, on behalf
of the other party. or represent the other as agent, representative. employee,
or in any other capacity.


 


27.                               Attorneys’ Fees. In any action, suit or
proceedings brought hereunder, the successful or prevailing party shall be
entitled to recover its reasonable attorneys’ fees and other costs incurred in
connection with the action, suit or proceeding, in any addition to any other
relief to which such party may be entitled.


 


28.                               Miscellaneous. Nothing in this Agreement,
express or implied, shall, is intended to, or shall be construed to. confer
upon or to give any person, firm or corporation, except the parties hereto, any
rights or remedies under or by reason of this Agreement. The language used in this
Agreement shall be deemed to be the language chosen by the parties to express
their mutual intent, and no rule of strict construction shall be applied
against any party. This Agreement may be executed in multiple
counterparts, ~ach of which shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.


 


IN WITNESS WHEREOF, THE
PARTIES HERETO HAVE CAUSED THIS AGREEMENT, INCLUSIVE OF ALL EXHIBITS, TO BE
EXECUTED BY THEIR DULY AUTHORIZED REPRESENTATIVES.


 


	
  LIGHTSPACE CORPORATION

  	
   

  
	
   

  	
   

  
	
  Signature:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  CUSTOMER

  	
   

  
	
   

  	
   

  
	
  Signature:

  	
  /s/ Robert Curdif

  	
   

  	
   

  
	
   

  	
   

  
	
  Name: 

  	
  Robert Curdiff

  	
   

  	
   

  
	
   

  	
   

  
	
  Title:

  	
  EST/P.M.

  	
   

  	
   

  
						



 


10






 










 


Lightspace System Quotation


 


	
  Lightspace Corporation

  	
   

  	
  Customer: Oliver Friedman

  
	
  125 Cambridge Park Drive, Cambridge. MA 02140

  	
   

  	
  Company: Global Entertainment

  
	
  Main phone: (617) 868.1700, Fax: (617) 868-1799

  	
   

  	
  Location: Montreal, Canada

  



 


Lightspace System Description:


Overall Dimensions: 21.4’ x 21.4’ (Includes
a 2 tile Peripheral Tile border and 8” ramp around the entire surface)


 


	
  Hardware and Software

  	
   

  	
  Qty

  	
   

  	
   

  	
   

  
	
  Interactive Tile R3.3 (16” x 16”)

  	
   

  	
  126

  	
   

  	
   

  	
   

  
	
  Peripheral Tile Rf,2 (16” x 16”)

  	
   

  	
  108

  	
   

  	
   

  	
   

  
	
  Club Scene Control Station w/ LMS and
  Network

  	
   

  	
  1

  	
   

  	
   

  	
   

  
	
  LS Control Station R 20 w/ Monitor and
  Accessories

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lightspace Management System (lMS) VI.3

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LS Communications Center

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Club Scene Software Package

  	
   

  	
  1

  	
   

  	
   

  	
   

  
	
  Base Lightsoft Package V1.0 (Incl. 100 Lightsofts)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lightsoft Creator V1.3

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Installation Package

  	
   

  	
  1

  	
   

  	
   

  	
   

  
	
  400 Amp Power Supply & Accessories

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Vinyl Floor Covering and Border Ramps

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Installation Kit

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  System Installation & Training

  	
   

  	
  1

  	
   

  	
   

  	
   

  
	
  Site Survey and Installation

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3 Day Onsite System Operation and Training

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Service Agreement (2 years)

  	
   

  	
  1

  	
   

  	
   

  	
   

  
	
  24.7 Telephone and Email Support

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Real time Troubleshooting Support

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SUB TOTAL

  	
   

  	
   

  	
   

  	
  $

  	
  167,106

  	
   

  
	
   

  	
  DISCOUNT

  	
   

  	
   

  	
   

  	
  $

  	
  45,106

  	
   

  
	
   

  	
  TOTAL

  	
   

  	
   

  	
   

  	
  $

  	
  122,000

  	
   

  



 


* Notes:


 


1.              Additional Vinyl Covering and Custom Overlays
are available for purchase.


2.              Custom software and application development is
available at $250 per hour (8 hour minimum).


3.              Based upon the findings of a Site Survey,
additional installation charges may apply.


4.              This proposal does not include fees for
electricians, building contractors, inspectors, and other related installation
fees.


5.              Post installation, onsite maintenance and
support is available at $575 per day plus T&E.


6.              Onsite training is conducted on the day of
system installation.


7.              All hardware excluding consumables (vinyl and
overlays) are covered by a 2 year warranty.


8.              A portion of this order (up to 50%) will be
supplied with “used” tiles. If customer decides to replace these tiles, they
will be responsible for shipping.


 


PAYMENT
TERMS:


 


	
  Non-Refundable Down Payment due upon
  signing of this quote

  	
   

  	
  $

  	
  15,000.00

  	
   

  
	
  Remainder due upon acceptance of shipment

  	
   

  	
  $

  	
  107,000.00

  	
   

  



 


I have
reviewed and accept, pricing, terms (End-User Agreement) and agree to purchase
the Lightspace System.


 


Quote
prepared by: Gary Florindo, Lightspace Corporation


 


 


	
  Signature:

  	
   

  	
   

  	
  Date:
  Jan.11, 2005

  	
   

  	
   

  



 


 


	
  GFF

  	
   

  	
  Quote valid for 30 days

  



 














 


LIGHTSPACE CORPORATION

END USER AGREEMENT No. 04-004


 


This End User Agreement, including all Exhibits attached hereto
(collectively, “Agreement”) is made as of November
30, 2004 (“Effective Date”), by and between LIGHTSPACE CORPORATION (“LIGHTSPACE”),
a Delaware corporation with a place of business at 125 CambridgePark Drive,
Cambridge, MA 02140, and THE PARTY AND EVENT
DESIGNERS, a                   
corporation with a principal place of business in Dallas, Texas (“CUSTOMER”).


 


WHEREAS, CUSTOMER desires to purchase the L.IGHTSPACE Product(s) and
Services specified herein and LIGHTSPACE agrees to provide the Product(s) and
Services to CUSTOMER subject to this Agreement.


 


NOW THEREFORE, in consideration of the mutual promises and conditions
in this Agreement, the parties hereby agree as follows:


 


1.             Definitions. Certain definitions used in
this Agreement. and not otherwise defined herein, are as follows:


 


“Applicable Specifications” means the
functional and operational characteristics of the Product(s) as described in
the LIGHTSPACE’s then-current published Documentation.


 


“Authorized Computer” means the specific
computer system or systems delivered by LIGHTSPACE for use by the CUSTOMER on which
all Software shall be installed and operate.


 


“Catalog” means LIGHTSPACE’s Product
catalog that is either published on LIGHTSPACE’s Internet website or otherwise
made available in written form, as modified from time to time by LIGHTSPACE.


 


“Confidential Information” means any
information disclosed by the Discloser which is or should be reasonably
understood by the Recipient to be confidential or proprietary to the Discloser,
Including, but not limited to, the material terms of this Agreement,
pre-release information relating to Product(s,) product designs, marketing plans,
customer lists, prices, policies, practices, technical processes and formulas,
source codes and other software, sales, cost and other unpublished financial information,
product and. business plans projections, and marketing data. Confidential
Information does not include information (a) Independently developed by
employees of Recipient who have not had direct or indirect access to Disclosers
Confidential Information; (b) generally known to the public through no act or
omission of Recipient; or (c) obtained by a Recipient from any third party not owing
any confidentiality obligation to the Discloser; provided that (i) no such
exception shall apply except to the extent clearly demonstrated by the Recipient;
and {ii} only the specific information that meets the exclusion shall be excluded
and not any other information that happens to appear in proximity to such
excluded portion (for example, a portion of a document may be excluded without
affecting the confidential nature of those portions that do not themselves
qualify for exclusion).


 


“Discloser” means the party disclosing
Confidential Information or on whose behalf Confidential Information is disclosed
and such of Discloser’s suppliers, contractors and customers as provide information
in connection herewith.


 


“Documentation” means all Installation
Instructions, operations guides, manuals, extra sheets, read files, and other
materials provided by LIGHTSPACE to CUSTOMER in conjunction with the
Product(s), in whole or in part, in printed or electronic form.


 


“Fees” means, collectively, the license
fees for the Software, fees for Services and the purchase price of the
Hardware, as applicable, as set forth In each Order.


 


“Hardware” means the Tile Platforms,
Authorized Computers, and any other computer hardware and any other peripherals
which attach thereto to be sold to CUSTOMER hereunder.


 


“Lightsofts” means the LIGHTSPACE
application software described in the LIGHTSPACE Catalog.


 


“Losses” has the meaning set forth in
Section 16.


 


“LPOS” means LIGHTSPACE’s Proprietary
Operating System software installed on the Hardware.


 


“Maintenance Releases” means versions of
the Software that consist of error corrections or patches made to the Software
that accomplish performance, structural, or functional Improvements and are offered
generally or selectively to other subscribers for Software Maintenance, but
excluding new Product(s) or Services (unless such new Product(s) or Services
are offered by LIGHTSPACE as part of its Catalog and CUSTOMER has purchased a
license permitting access to such new Product(s) or Services).


 

















 


“Objectionable” means any Information in
any medium or formal, including without limitation text, data, graphics, audio
or video, content (or use of the content), or any action or behavior, that: (a)
is libelous or defamatory, pornographic, sexually explicit, or unlawful or that
encourages any of the foregoing; (b) a reasonable person would consider harassing,
abusive, threatening, harmful, vulgar. profane, obscene, excessively violent,
racially, ethically or otherwise objectionable or offensive in any way or
promotes bigotry, racism or harm against any group or Individual; (c)
constitutes a breach of any person’s privacy or publicity rights, a
misrepresentation of facts, hate speech or an infringement or misappropriation
of any third party’s intellectual property rights of any kind, including
without limitation, copyright, patent, trademark, industrial design, trade secret,
confidentiality or moral rights; (d) promotes software or services that deliver
unsolicited email, including without limitation, bulk e-mail, surveys, contests,
“junk mail,” “spam,” or chain letters; (e) disrupts or interferes with the
security of, or otherwise abuses, the Product(s), LIGHTSPACE’s network or
Internet web sites, or any services, system resources, accounts, servers or
networks connected to same or any affiliated or linked programs or services;
(f) is subject to any restriction upon transmission under any law or under contractual
or fiduciary relationships (such as Inside Information, proprietary and
confidential information learned or disclosed as part of an employment
relationship or under a nondisclosure agreement); or (g) violates or encourages
others to violate any applicable law.


 


“Order” means that form of written
purchase order submitted by CUSTOMER to LIGHTSPACE and executed by the parties,
that lists the Product(s) and Services that CUSTOMER desires to obtain from
LIGHTSPACE as well as the appropriate Fees and payment terms for such
Product(s) and Services.


 


“Participant” shall mean a CUSTOMER
employee, contractor or customer to whom CUSTOMER permits access to the
Subscribed Lightsofts upon the terms and conditions set forth herein,


 


“Product(s)” shall mean the Hardware and
Software and all related Documentation received by CUSTOMER from LIGHTSPACE.


 


“Recipient” means the party receiving
Confidential Information hereunder.


 


“Services” shall mean any Installation
Services, Support Services (as defined In Exhibit A hereto), custom development
services or other consulting services provided by UGHTSPACE pursuant to LIGHTSPACE’s
form of Master Consulting Agreement with such changes as may be agreed upon by
the parties (“MCA”).


 


“Site” means any physical address location
or installation venue, whether permanent, temporary or portable, where the
Product(s) are duly authorized by LIGHTSPACE to CUSTOMER for use or rental.


 


“Software” means tile following software
that. operates on the Hardware: (i) the LPOS, the Subscribed Lightsofts which
operate on the LPOS; and any other software licensed to CUSTOMER pursuant to an
accepted Order that is proprietary to LIGHTSPACE; (ii) any Third party Software
offered by LIGHTSPACE and (iii) any Maintenance Releases to the software
described in clauses (i) and (ii).


 


“Subscribed Lightsofts” means the Lightsofts
to which CUSTOMER has obtained a license hereunder.


 


“Term” has the meaning sat forth in
Section 13.


 


“Third Party Software” means software
that is proprietary to a third party that is licensed to CUSTOMER by LIGHTSPACE.


 


“Tile Platforms” means the interactive
electronic tile platforms or the peripheral (non-interactive) tile platforms and
the connecting components for such tile platforms to be sold to CUSTOMER hereunder.


 


“Use Period” means the period during the
Term during which CUSTOMER will have access to and the right to use a
particular Subscribed Lightsoft, as such period is specified in the Catalog as
of the date of the commencement such license, or as may otherwise be agreed
upon by the parties in writing.


 


2.             Purchase Orders. CUSTOMER shall submit an Order
to LIGHTSPACE for each purchase or license of Product(s) and Services. Each
Order shall specify: (i) name and LIGHTSPACE product code number of each
Product and Services ordered; (ii) quantity of each Product ordered; (iii) Fees
for each Product or Service; (iv) requested delivery date, if applicable, and
(v) shipping instructions and shall reference that it is an Order Issued under
the terms of this Agreement. All Orders are subject to LIGHTSPACE’s written
acceptance. LIGHTSPACE agrees to use commercially reasonable efforts to notify
CUSTOMER within five (5) days of receipt of 


 


2





















 


an Order if the
Order has not been accepted by UGHTSPACE, In the event of a conflict between
the terms of this Agreement and those appearing in such Order, the terms and
conditions of this Agreement shall prevail. Once an Order has been accepted in
writing by LIGHTSPACE, CUSTOMER may not amend or cancel any Order without the
prior written consent of LIGHTSPACE. Any attempted amendment or cancellation
shall result in CUSTOMER’s forfeiture of the Fees paid by CUSTOMER at the time
the Order was accepted by LIGHTSPACE.


 


3.             Grant of Software License. (a) Software. Subject
to the terms and conditions of this Agreement and the payment of all applicable
Fees, and Section 3(b) with respect to access to and use of Lightsofts, LIGHTSPACE
hereby grants to CUSTOMER a non-exclusive, nontransferable license, without the
right to sublicense to (i) use the Software in object code form for its
internal purposes solely on the number of Authorized Computer(s) and Tile
Platform(s) specified in an accepted Order (and with respect to Subscribed
Lights, solely during the applicable Use Period for each Lightsoft); and (ii)
permit Participants to use the Software on the number of Authorized Computer(s)
and Tile Platform(s) specified in an accepted Order.


 


(b)           Lightsofts. During the Term, LIGHTSPACE
will provide or make available to CUSTOMER the right to subscribe to the Lightsofts
at the subscription level (“Subscription
Level”) set forth in the applicable Order. Subscribed Lightsofts
will be licensed to Customer pursuant to Section 3(a) above. CUSTOMER is under
no obligation, at any time during the Term to subscribe to any Lightsoft. LIGHTSPACE
reserves the right to modify the Catalog and/or its Fees from time to time to
reflect its then-current offerings of Lightsofts. At any time during the Term and
upon payment of the then-current applicable Fee, CUSTQMER may upgrade CUSTOMER’s
Subscription Level. The Fees are not refundable and CUSTOMER will not receive
any rebate or refund for downgrading CUSTOMER’s Subscription Level or terminating
this Agreement at any time during the Term.


 


(c)           Ownership. All rights not
expressly granted hereunder are reserved to LIGHTSPACE. LIGHTSPACE retains all
rights, title and interest in (i) the Software and Documentation, and (ii) all
data generated by CU5TOMER’s and its Participants’ use of the Subscribed Lightsofts,
including without limitation any and all patents, patent applications,
copyrights, trade secrets, trademarks and other intellectual property rights,
and CUSTOMER shall not take any action inconsistent with such title and
ownership. CUSTOMER acknowledges and agrees that this Agreement grants to CUSTOMER
no title or light of ownership in the Software, notwithstanding the use herein
of the words “sale,” “sell,” “sold,” .purchase” and the like.


 


4.             Hardware. Title to all Hardware shall
pass to CUSTOMER when the Fees for such Hardware have been paid in full. If any
Hardware on which the Software has been installed becomes subject to the
security interest of a third party, the agreement under which such Hardware Is
secured must include provisions providing that the secured party (and its assigns)
shall have no rights with respect to possession or use of the Software as installed
on such Hardware and shall be obligated to remove (or permit CUSTOMER to
remove) the Software upon any repossession of the Hardware. CUSTOMER
acknowledges and agrees that (i) the Hardware provided by LIGHTSPACE may
contain video and photographic recording devices, (ii) LIGHTSPACE shall be
permitted to use such devices to transmit and record video and photographic images
of CUSTOMER’s Site, the Subscribed Lightsofts and/or the Hardware, for diagnostic,
product improvement and other such internal purposes.


 


5.             Restrictions on Use. (a) CUSTOMER may move the
Product(s) and Documentation freely from one Site to another Site so long as
the CUSTOMER: (i) does not exceed the licensed number of Authorized Computers
and Tile Platforms; and (ii) does not move or attempt to move the Product(s)
outside the United States. CUSTOMER agrees that it will not use or permit the
Product(s) to be used in any manner, whether directly or indirectly, that would
enable CUSTOMER’s employees, contractors or agents or any third party to use
the Software on any computer system other than on the number of licensed
Authorized Computer(s) and Tile Platform(s). LIGHTSPACE reserves the right, upon
reasonable notice, to audit CUSTOMER’s compliance with the provisions herein
related to use of Product(s) at the Site(s). CUSTOMER shall, at its cost and
expense, take actions to comply with such audit.


 


(b)           CUSTOMER shall not (i) copy, rent,
lease, sublicense, time share. distribute. reproduce, use or allow access to
the product(e) except as explicitly permitted under this Agreement; (ii)
modify, adapt, translate, prepare derivative works from, reverse engineer,
decompile or otherwise attempt to derive source code from the Product(s) or any
internal data 


 


3





















 


files generated
by the Product(s),except to the extent that such activity is expressly
permitted by applicable law notwithstanding this limitation; or (ii) remove,
obscure. or alter LIGHTSPACE’s copyright notices. trademarks, or other
proprietary rights notices affixed to or contained within the Product(s).
CUSTOMER shall be allowed to duplicate Documentation for CUSTOMER’s internal
use only. The source code for the software. and other trade secrets embodied
therein are not disclosed to CUSTOMER.


 


(c)           CUSTOMER and its Participants shall
not use and shall not permit a third party to use the Product(s) in an
Objectionable manner. CUSTOMER acknowledges and agrees that: (i) Participants
may separately register with LIGHTSPACE for use of or access to certain LIGHTSPACE
software and materials, which software and materials may function in
conjunction with the Product(s) installed at the Site; and (ii) LIGHTSPACE does
not pre-screen Participants’ use of LIGHTSPACE software and materials or
Participants’ development of software and materials that may function in
conjunction with the Product(s) installed at the Site, nor shall LIGHTSPACE
assume any responsibility for any Objectionable material therein. Customer will
be liable for any breach of this Agreement by a Participant.


 


(d)           CUSTOMER is only being granted the
rights to use the product(s) at the Sites and shall not export or re-export,
directly or indirectly (including via remote access) Product(a) or other
information or materials provided by LIGHTSPACE hereunder, to any country for
which the United States or any other relevant Jurisdiction requires any export
license or other governmental approval at the time of export without first obtaining
such license or approval. CUSTOMER shall defend and indemnify LIGHTSPACE from
and against any Losses arising out of any claim that Product(s) or other
information or materials provided by LIGHTSPACE hereunder were exported or
otherwise accessed, shipped or transported in violation of applicable laws and
regulations. CUSTOMER agrees that it will comply with all applicable federal,
state and local laws and regulations governing the use of the Product(s).


 


6.             Services. (a)  Installation
Services. CUSTOMER
may, pursuant to an Order, request that LIGHTSPACE perform Installation
services with respect to the Product(s) (“Installation Services”). Such
Installation Services shall be performed at LIGHTSPACE’s then-current rates as
set forth in the applicable Order. Upon receipt of such Order requesting
Installation Services, LIGHTSPACE shall make arrangements with CUSTOMER to
install the Product(s) at the agreed upon Sites. LIGHTSPACE shall not perform
any customization of the Product(s) in connection with the Installation
Services, unless such customization is accomplished pursuant to Section 6(0)
hereof.


 


(b)           Maintenance and Support. LIGHTSPACE’s
current support policy for the software (as amended from time to time by
UGHTSPACE, the “Support Policy”) is set forth in Exhibit A hereto. CUSTOMER may
elect to obtain Support Services (as defined in the Support Policy) for the
Software at LIGHTSPACE’s current price and may, pursuant to the Support Policy,
elect to renew support at such prices and upon such terms and conditions as
LIGHTSPACE may publish from time to time. If CUSTOMER elects to obtain Support
Services, the terms of this Agreement, supplemented by the Support Policy
terms, shall govern the support arrangements. Any Maintenance Releases of the
Software delivered by way of support services shall be treated for all purposes
under this Agreement as Software and all intellectual property rights therein
shall be retained by LIGHTSPACE.


 


(c)           Customization and Consulting
Services. During the Term, LIGHTSPACE may, upon request. provide or make available
to CUSTOMER customization and consulting services as shall be mutually agreed
upon by the parties. CUSTOMER is under no obligation, at any time during the
Term to obtain such customization and consulting services. Any requested
LIGHTSPACE customization or consulting service shall be provided pursuant to
the terms of the MCA.


 


7.             Shipments. Product(s) will be shipped
F.O.B. LIGHTSPACE’s principal place of business at 125 CambridgePark Drive,
Cambridge, MA 02140. CUSTOMER is responsible for the cost of all shipping,
handling, Insurance and any fees, taxes and duties. All risk of loss with respect
to the Product(s) shall pass to CUSTOMER when such Product(s) are delivered to
the carrier for shipment to CUSTOMER Unless previously agreed to by LIGHTSPACE,
Product(s) shall be shipped in LIGHTSPACE’s standard packaging.


 


8.             Delivery and
Acceptance. (a)  Delivery schedules for the Product(s) are subject
to LIGHTSPACE’s then-current lead times and Product(s) availability. LIGHTSPACE
will make reasonable efforts to meet delivery dates quoted or acknowledged, but
shall in no event be liable for failure to meet any such date(s). LIGHTSPACE shall
have the right to deliver Product(s) prior to any 


 


4





















 


agreed upon
delivery date. LIGHTSPACE reserves the right to make deliveries in installments
and any Order or invoice shall be severable as to any such installments. Delay
in delivery or default of any installment shall not relieve CUSTOMER of its obligation
to accept and pay for remaining installments. CUSTOMER shall carefully inspect
all deliveries of Product(s) as they are received by CUSTOMER and report to LIGHTSPACE
promptly, but in any event within seven (7) calendar days after receipt of
shipment (“Inspection Period”), any alleged error, shortage, defect or
nonconformity of such Product(s). CUSTOMER’s acceptance of each purchase or
license of Product(s) (in each case, an “Acceptance”) shall occur as follows:


 


(i)            If CUSTOMER shall not have purchased
LIGHTSPACE’s Installation Services, then CUSTOMER shall be deemed to have
Accepted Product(s) upon the expiration of the Inspection Period, if CUSTOMER
shall not have notified LIGHTSPACE of any non-conformity in the Product(s)
prior to the expiration of such period.


 


(ii)           If CUSTOMER shall have purchased LIGHTSPACE’s
Installation Services, then upon the Installation of the Product(s) by LIGHTSPACE,
CUSTOMER shall demonstrate such Acceptance of the Product(s) by immediately signing
and delivering to LIGHTSPACE, LIGHTSPACE’S form of Customer Acceptance Form as
provided by LIGHTSPACE to Customer.


 


Notwithstanding the foregoing, any production use by CUSTOMER of the
Product(s) shall be deemed to be CUSTOMER’s Acceptance of the Product(s) for
purposes of this Section. The foregoing shall be CUSTOMER’s sole end exclusive
means of Acceptance of the Product(s).


 


9.             Payment Terms. (a)  CUSTOMER shall pay to LIGHTSPACE the
applicable Fees In the amounts and on the dates set forth in each Order. Unless
specified differently in an Order, CUSTOMER shall pay for each Order as
follows: (i) for Product(s), Customer shall pay 50% of the applicable Fees set
forth in the Order at the time the Order is placed, and the remaining 50% upon
the Acceptance of Product(s) by CUSTOMER in accordance with Section 8 above;
(ii) for Maintenance and Support Services, Customer shall pay the applicable
Fees in accordance with Exhibit A; and (iii) for consulting services in
accordance with the MCA. In the event of an adverse change in CUSTOMER’s
creditworthiness, as determined by LIGHTSPACE in its good faith judgment,
LIGHTSPACE may require alternative payment terms for Product(s) or withhold or
suspend the shipment of Product(s). Payment shall be in U.S. dollars. All
payments shall be due and payable upon receipt by CUSTOMER of LIGHTSPACE’s
invoice.


 


(b)           CUSTOMER grants to LIGHTSPACE a
security interest in all Product(s) in the amount of the Fees payable, plus all
other amounts due hereunder and all costs of collection incurred by LIGHTSPACE,
including but not limited to court costs and reasonable attorneys’ fees). and
any proceeds therefrom, and agrees that LIGHTSPACE retains, in addition to any
other rights of LIGHTSPACE, a right of repossession in such Product(s) until
such time as CUSTOMER has paid for such Product(s) in full, or a right to
require CUSTOMER to effect (at CUSTOMER’s expense) return delivery of such
Product(s) to LIGHTSPACE. CUSTOMER agrees to cooperate and execute all
financing statements and other documents as may be necessary for LIGHTSPACE to
perfect a security interest in the Product(s), and hereby authorizes a
designated representative of LIGHTSPACE to file any financing statement without
the signature of the CUSTOMER, to the extent permitted by applicable law, and
to file a copy of this Agreement in lieu of a financing statement, in
connection with the perfection of such security interest. Overdue amounts shall
bear interest in an amount equal to one and one-half percent (1.5%) of the
unpaid balance per month (or portion thereof), or if less, at the highest interest
rate permitted by applicable law, calculated monthly from the date payment was
due until the date payment is made. CUSTOMER shall not withhold or set off from
any amounts due to LIGHTSPACE, any amounts claimed to be owed by LIIGHTSPACE to
CUSTOMER for any reason whatsoever.


 


(c)           Fees included in accepted Orders are
exclusive of all shipping charges and all federal, state, municipal and all
other governmental excise, sales, use, and similar taxes, duties, or tariffs. CUSTOMER
agrees to pay all such shipping charges, taxes, duties, or tariffs. CUSTOMER
must provide LIGHTSPACE with written certification for any claim of tax or
other exemption prior to shipment of Product(s) or the performance of Services.
If LIGHTSPACE is required to pay additional taxes, duties and tariffs CUSTOMER
shall immediately reimburse and hold LIGHTSPACE harmless for all such taxes.


 


10.          Unlimited Warranty. (a)  Unless otherwise specified in the Order, for
a period of one year from the date of Acceptance (“Warranty Period”), 


 


5





















 


LIGHTSPACE warrants
that the unaltered Product(s) will substantially conform to the Applicable
Specifications. During the Warranty Period, nonconforming Product(s) may be
returned by CUSTOMER if CUSTOMER: (i) obtains a RMA from LIGHTSPACE in
accordance with Section 11; (ii) returns nonconforming Product(s) by a method
of shipment approved by LIGHTSPACE; and (iii) Product(s) are received by LIGHTSPACE
in good co/condition, without their markings altered, defaced, or removed, and
accompanied with a written description of the defect(s). The foregoing warranty
does not apply to (A) any Product(s) (A) that have been subject to, misuse,
neglect, accident or which are not capable of being tested by LIGHTSPACE under its
normal test conditions, or (B) any alterations, modifications, combinations or
enhancements of the Product(s) not created by LIGHTSPACE. LIGHTSPACE shall have
no liability for any warranty claim based upon the combination, operation, or
use of the Product(s) with equipment, data, or software not furnished by LIGHTSPACE.
LIGHTSPACE does not warrant that the Product(s) are error free, will operate
without interruption or are compatible with all equipment and/or software configurations.
CUSTOMER acknowledges that use of the Product(s) may result in unexpected
results, loss of data or other unpredictable damage or loss to CUSTOMER. LIGHTSPACE’s
sole and exclusive liability and CUSTOMER’s sole and exclusive remedy for any
breach of the foregoing warranty shall be at LIGHTSPACE’s option, to repair,
replace, or refund the Fees paid by CUSTOMER for the defective Product(s).


 


(b)           EXCEPT AS PROVIDED IN THIS SECTION,
LIGHTSPACE MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE
PRODUCT(S), INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE, .NON-INFRINGEMENT, NONINTERFERENCE WITH ENJOYMENT
AND ALL OTHER WARRANTIES ARISING OUT OF OR IN CONNECTION WITH THE SALE,
LICENSE, AND/OR PURCHASE OF THE PRODUCT(S), OR THE USE, REPAIR OR PERFORMANCE
THEREOF, OR ANY COURSE OF DEALING OR COURSE OF PERFORMANCE UNDER ANY AGREEMENT
BETWEEN CUSTOMER AND LIGHTSPACE.


 


This Limited Warranty does not apply to any Product or portion of a
Product which LIGHTSPACE identifies as a “Consumable”.


 


11.          Return Policy. CUSTOMER must
obtain a Return Material Authorization (“RMA”) prior to returning any Product(s)
to LIGHTSPACE for any reason. Product(s) returned to LIGHTSPACE without an RMA
will not be accepted and will be returned to CUSTOMER at CUSTOMER’s sole risk
and expense. CUSTOMER shall be responsible for the cost of all shipping, handling,
and insurance for all Product(s) returned to LIGHTSPACE. CUSTOMER may return
defective Hardware to LIGHTSPACE only during the Warranty Period; Thereafter
LIGHTSPACE will use commercially reasonable efforts to repair Hardware at LIGHTSPACE’s
then-current hourly rates.


 


12.          Discontinuance of
Product(s).
LIGHTSPACE reserves the right to discontinue or withdraw any Product(s) from
its Catalog at any time. LIGHTSPACE will use commercially reasonable efforts to
provide CUSTOMER with three (3) months prior written notice of any such discontinuance
or withdrawal of Product(s) from its Catalog. CUSTOMER shall have the right to
make a last-time purchase of such discontinued or withdrawn Product(s),
provided CUSTOME.R accepts delivery of all such Product(s) within three (3)
months from the date of LIGHTSPACE’s notice of discontinuance or withdrawal.
With respect to Subscribed Lightsofts that are discontinued, upon written
request by CUSTOMER, CUSTOMER may be offered the right to obtain a perpetual
license for such discontinued Lightsoft on terms to be mutually agreed upon in
writing by both LIGHTSPACE and CUSTOMER.


 


13.          Term and Termination. (a)  The term of this Agreement shall commence as
of the Effective Date and shall remain in force until terminated by either
party in accordance with this Section (“Term”).


 


(b)           Either party may terminate this
Agreement on not less than thirty (30) days prior written notice. If the other
party (i) is in material breach of any provision of this Agreement and the
party in breach does not cure said breach within such thirty (30) day period, (ii)
files a petition in bankruptcy, or has such petition filed against it (which
petition is not discharged within thirty (30) days after such filing), (iii)
makes an assignment for the benefit of creditors, or if a receiver, trustee,
custodian or similar agent is appointed or takes possession of its assets, or (iv)
generally ceases business in the ordinary course. LIGHTSPACE shall have the
right to terminate any outstanding Order issued under this Agreement and to
refuse any new Order if CUSTOMER commits any breach of this Agreement and fails
to remedy such breach within thirty (30) days after written 


 


6





















 


notice by LIGHTSPACE
of such breach. Continued shipment by LIGHTSPACE following CUSTOMER’s default
shall not constitute any waiver by LIGHTSPACE of its rights and remedies under
this Agreement nor shall it relieve the CUSTOMER of any of its obligations
herein. LIGHTSPACE’s termination of this Agreement and/or repossession of the
Product(s) shall be without prejudice to any other remedies that LIGHTSPACE may
have at law or in equity.


 


(c)           Upon the expiration or termination of
this Agreement for any reason, the license and all other rights granted
hereunder to CUSTOMER shall immediately cease, and CUSTOMER shall
immediately:  (i) return the applicable
software to LIGHTSPACE together with all Documentation; (ii) purge all copies
of the Software from any other computer storage medium or device on which
CUSTOMER has placed or permitted others to place the Software; (iii) destroy
LIGHTSPACE Confidential Information in CUSTOMER’s custody, possession or
control and certify in writing to LIGHTSPACE within two (2) weeks that it has
complied with this Section; and pay to LIGHTSPACE all outstanding obligations
under the Agreement or Order. Notwithstanding the foregoing, Sections 1, 3(c),
4, 5, 9, 10, 11 and 13-30 shall survive expiration or termination of this
Agreement.


 


14.          Confidential Information. (a)  each party acknowledges that Confidential
Information of the other party may be disclosed during the course of this Agreement.
Each Recipient agrees that it will (i) not disclose the Discloser’s
Confidential Information to anyone except to perform the Recipient’s obligations
hereunder; (ii) take steps that are substantially equivalent to the steps it
takes to protect its own proprietary information (and in any event no less than
reasonable steps) during the Term and following expiration or termination of
this Agreement, to prevent the duplication or disclosure of Discloser’s
Confidential Information, other than to its employees or agents who must have
access to such Confidential Information to perform such party’s obligations
hereunder, who each agree to comply with this provision; and (iii) use the
Confidential Information only for the purposes specifically permitted hereunder
or if not stated herein, solely to perform the Recipient’s obligations
hereunder. Each Recipient shall bear the responsibility for breaches of this
Section by any of its employees, contractors or agents irrespective of whether
the breach occurs during or after the period of the employment, agency or contractor
relationship. LIGHTSPACE shall have the right to refer to CUSTOMER as its
customer, and may use CUSTOMER as a reference account without any obligation of
confidentiality.


 


(b)           Either party may disclose
Confidential Information required to be disclosed by law; provided that it
shall (i) notify the Discloser hereunder promptly upon learning about any court
order or other legal requirement that purports to compel disclosure of any
Confidential Information; and (ii) cooperate with the Discloser (at Discloser’s
expense) in the exercise of the Discloser’s right to protect the confidentiality
of the Confidential Information before any tribunal or governmental agency.
Disclosure of Confidential Information pursuant to a court order or other legal
requirement that purports to compel disclosure of any Confidential Information
shall not constitute publication or otherwise alter the character of that
Information as Confidential Information as between the parties hereunder.


 


(c)           The parties agree that any breach or
threatened breach of this Section by a Recipient would cause not only financial
harm, but Irreparable harm to the Discloser; and that money damages will not provide
an adequate remedy. In the event of a breach or threatened breach of this
Section by a Recipient, the Discloser shall, in addition to any other rights
and remedies it may have, be entitled (without the necessity of posting any
bond or surety) to an injunction restraining the Recipient from disclosing or
using, in whole or in part, any Confidential Information.


 


15.          Limitation of Liability. EXCEPT FOR WITH RESPECT TO
THIRD PARTY CLAIMS UNDER SECTION 16, MISUSE OF LIGHTSPACE’S INTELLECTUAL
PROPERTY AND BREACH OF THE CONFIDENTIALITY OBLIGATIONS UNDER SECTION 14,
NEITHER PARTY SHALL BE LIABLE FOR LOSS OF PROFITS OR SAVINGS OR LOSS OF
BUSINESS, INCLUDING BUT NOT L.IMITED TO SPECIAL OR CONSEQUENTIAL DAMAGES, WHICH
MAY BE CAUSED BY, DIRECTLY OR INDIRECTLY, THE INADEQUACY OF THE PRODUCT(S) FOR
ANY PURPOSE OR USE THEREOF OR BY ANY DEFECT OR DEFICIENCY THEREIN, EVEN IF SUCH
PARTY HAS BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH
DAMAGES. EXCEPT FOR WITH RESPECT TO THIRD PARTY CLAIMS UNDER SECTION 16, MISUSE
OF LIGHTSPACE’S INTELLECTUAL PROPERTY AND BREACH OF THE CONFIDENTIALITY
OBLIGATIONS UNDER SECTION 14, EACH PARTY’S LIABILITY FOR DAMAGES, IF ANY, SHALL



 


7





















 


NOT EXCEEO THE
AMOUNTS PAID TO LIGHTSPACE BY CUSTOMER FOR THE PRODUCT(S) UNDER THIS AGREEMENT.
NO ACTION, REGARDLESS OF FORM, ARISING OUT OF ANY TRANSACTION UNDER THIS
AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE YEAR AFTER THE INJURED
PARTY HAS KNOWLEDGE OF THE OCCURRENCE WHICH GIVES RISE TO THE CAUSE OF SUCH
ACTION.


 


16.          Indemnity. (a)  By LIGHTSPACE. LIGHTSPACE will defend,.
indemnify and hold harmless CUSTOMER, its subsidiaries, parent corporations,
affiliates, officers, directors, independent contractors, partners,
shareholders., employees, agents, successors and assigns from and against a claim,
suit, demand, loss, damage, expense (including reasonable attorney’s fees) or liability
asserted by a third party (collectively, “Losses”) arising from or related to
any third party claim that the Product(s) infringes a valid United States
patent, trademark or copyright. LIGHTSPACE shall have no liability or obligation
to CUSTOMER under this Section 16(a) with respect to any claim in the event and
to the extent based upon: (i) use of the Product in an application or
environment or on a platform or with devices for which the Product was not
designed or contemplated (it being expressly agreed that the Software is intended
to operate on the Hardware), (ii) modifications, alterations, combinations or enhancements
of the Product not created by LIGHTSPACE, (iii) any patent, trademark or
copyright in which CUSTOMER or any affiliate has an interest, or (iv) failure
of CUSTOMER to install any corrections or Maintenance Releases of the Product
made available by LIGHTSPACE. CUSTOMER shall indemnify and hold LIGHTSPACE harmless
from all costs, damages and expenses (including reasonable attorneys’ fees)
arising from any claim enumerated in clauses (i) through (iv) above.


 


In addition, LIGHTSPACE, at LIGHTSPACE’s option and expense, may (i)
procure for CUSTOMER the right to continue using such Product, (ii) replace or
modify the Product so it becomes noninfringing, or (iii) if options (i)-(ii)
are not available, terminate CUSTOMER’s license to the allegedly
Infringing Product and pay to CUSTOMER an amount not to exceed the value of the
Product for which CUSTOMER has paid a fee, depreciated on a straight-line basis
over a three (3) year period.


 


(b)           By CUSTOMER. CUSTOMER shall
defend, indemnify and hold LIGHTSPACE, its subsidiaries, parent corporations,
affiliates, officers, directors, independent contractors, partners, shareholders,
employees, agents, successors and assigns harmless against any Losses to the
arising from (1) CUSTOMER’s or its Participants: (i) use of the Product(s), including
without limitation the posting or display of any Objectionable material in
connection with the Product(s); (ii) negligence or intentional misconduct; or,
(iii) failure to comply with applicable laws; and (2) damage to or destruction
of property of other persons or the death or Injury of third persons, including
but not limited to employees or invitees of LIGHTSPACE or CUSTOMER which
damage, destruction, death or injury results from or is caused by any act or omission
of CUSTOMER, its employees, servants, agents, or representatives.


 


(c)           Procedure. To receive the
benefit of indemnification under Sections 16(a) or 16(b), the party seeking
indemnification must promptly notify the indemnifying party in writing of a claim
or suit and provide reasonable cooperation (at the indemnifying party’s
expense) and tender to the Indemnifying party (and its insurer) full authority
to defend or settle the claim or suit. Neither party has any obligation to indemnify
the other party in connection with any settlement made without the indemnifying
party’s written consent. The indemnitee has the right to participate at its own
expense in the claim or suit and in selecting counsel therefor.


 


17.          Notices: All notices relating to this
Agreement shall be in writing and delivered by courier or by hand or sent to
the other party by first class certified prepaid mail or by common carrier with
the ability to track and confirm delivery and shall be sent to the following
addresses:


 


To LIGHTSPACE:


 


Lightspace
Corporation


125
Cambridge Park Drive


Cambridge,
MA 02140


Attn:       CEO


 


	
  To
  CUSTOMER:

  
	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attn:

  	
   

  	
   

  
			



 


Notices shall be deemed to have been duly given (i) upon personal
delivery, (ii) upon deposit in the mail if mailed by certified mail, return
receipt requested, 


 


8

















 


postage prepaid, (iii) upon deposit with a recognized courier with next-day
delivery instructions. or (iv) upon confirmation of transmission, if sent by
confirmed fax, to the address or fax number set forth below or such other
address or fax number as either party may specify by notice sent in accordance
with this Section 17.


 


18.          Force Majeure. Except for CUSTOMER’s payment
obligations to LIGHTSPACE, neither party shall be responsible for failure to
fulfill its obligations under this Agreement due to causes beyond its reasonable
control including, but not limited to, accidents, labor disputes, military
conflicts, acts of government, acts of terrorism, insurrections, riots, explosions,
lightning, earthquakes, fires, storms and floods. No default shall be caused by
and LIGHTSPACE shall not be responsible to CUSTOMER for any loss, damages, or
penalty resulting from any delay or failure to perform the obligations of LIIGHTSPACE
herein that are due to any cause beyond LIGHTSPACE’s control. Anticipated delivery
dates by LIGHTSPACE shall be deemed extended for a period of time equal to the
time lost due to any such delay excusable under this Section.


 


19.          Governing Law and
Severability.
The validity, construction and performance of this Agreement shall be governed
by and construed in accordance with the laws of the Commonwealth of
Massachusetts without reference to choice of law principles. If any term or
provision of this Agreement or the application of any such provision of this
Agreement shall be held by a tribunal of competent jurisdiction to be contrary
to law, invalid or unenforceable, the remaining. provisions of this Agreement
shall remain in full force and effect. T he United Nations Convention on
Contracts for the International Sale of Goods shall not apply to this Agreement.


 


20.          Resolution of Disputes;
Waiver of Jury Trial; Exclusive Remedies. In the event of any claim or
dispute between the parties hereto with respect to the interpretation or
application of this Agreement that cannot be reasonably resolved by a meeting
of the principal representative of the parties, such dispute shall be settled
by arbitration before three arbitrators (selected from a panel of persons
having experience with and knowledge of the subject matter of this Agreement,
at least one of whom shall be an attorney) in Boston, Massachusetts and
administered by the American Arbitration Association in accordance with its
Commercial Arbitration Rules. Any provisional or equitable remedy which would
be available from a court of law shall be available from the arbitrators to the
parties in such proceeding. Judgment upon the award of the arbitrators may be
enforced in any court having jurisdiction thereof. The parties hereby consent
to: (i) the jurisdiction of the federal or state courts sitting or located in
Boston, Massachusetts for any action: (a) to compel arbitration, (b) to enforce
the award of the arbitrators, (c) prior to this appointment and confirmation of
the arbitrators, for temporary, interim or provisional equitable remedies; or
(d) arising from or related to a breach of confidentiality or misuse of LIGHTSPACE
intellectual property; and (ii) service of process in any such action by
registered mail return receipt requested, or by any other means provided by
law. EACH PARTY AND HEREBY VOLUNTARILY WAIVES ITS RIGHTS TO A JURY TRIAL. OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT AND
THE TRANSACTIONS CONTEMPLATED HEREIN.


 


21.          Injunctive Relief: CUSTOMER agrees that any breach
of this Agreement will cause LIGHTSPACE irreparable harm and that the damage
will be difficult to determine and that money damages alone will not be an
adequate remedy. Therefore, LIGHTSPACE shall have the right to seek injunctive
relief against any breach or threatened breach of this Agreement.


 


22.          U.S. Government
Restricted Rights.
If the Product(s) are acquired by or on behalf of a unit or agency of the
United States Government (the “Government”), the Government agrees that such
Product(s) include “commercial computer software” and commercial computer
software documentation”, and that absent a written agreement to the contrary,
the Government’s rights with respect to such Product(s) are, in the case of
civilian agency use, RESTRICTED RIGHTS, as defined in FAR §52.227-19, and if
for the Department of Defense use, limited by the terms of this Agreement,
pursuant to DFARS §227.7202-1 through §227.7202-4 as applicable. The use of the
Product(s) by the Government constitutes acknowledgment of LIGHTSPACE’s proprietary
rights in the Product(s). Contractor/manufacturer is LIGHTSPACE. LIGHTSPACE’s
address is set forth at the end of this Agreement.


 


23.          Modification,
Amendment, Supplement or Waiver. No modification, amendment, supplement or waiver of this
Agreement, or any to its provisions, shall be binding upon the parties hereto
unless made in writing and duly signed by both parties. Any waiver of a
provision of this Agreement, or of a breach or default under this Agreement,
shall apply only in the specific instance and purpose given, and 


 


9





















 


shall not
constitute a waiver of any other default. Any failure or delay by either party
to enforce compliance with any term or condition of this Agreement shall not
constitute a waiver of such term or condition.


 


24.          Entire Agreement. This Agreement, including all
attachments, schedules and exhibits hereto, constitutes the entire agreement
between the parties in connection with the subject matter hereof and supersede
all prior and contemporaneous agreements, understandings, negotiations and
discussions, whether oral or written, of the parties, and there are no
warranties, representations and/or agreements among the parties in conjunction
with the subject matter hereof except as specifically set forth or referred to
herein. All attachments, schedules and exhibits hereto are expressly
incorporated by reference, and subject to, this Agreement, and in the event of
any conflict between the terms and provisions of this Agreement and the terms
and provisions of any such exhibit, schedule or attachment, or any Order or
other invoice or any written acceptance thereof, then the terms and provisions
this Agreement shall govern.


 


25.          Assignment; Successors. The rights and licenses
granted CUSTOMER hereunder are restricted solely and exclusively to CUSTOMER.
CUSTOMER shall not assign, transfer or sublicense this Agreement or any of its
rights or delegate the performance of any of CUSTOMER’s obligations under this
Agreement without the prior written consent of LIGHTSPACE. Any such assignment.
transfer, sublicense or delegation without LIGHTSPACE’s prior written consent
shall be void. All the terms and conditions of this Agreement are binding upon
and inure to the benefit of the parties hereto, and their successors and
assigns and legal representatives.


 


26.          Relationship of Parties. Both parties will, in all
matters relating to this Agreement, act as independent entities. Neither party
will take any action that assumes or creates, or represent that it has any
authority to assume or create, any obligation. order, agreement, contract, or
other binding commitment, express or implied, on behalf of the other party, or
represent the other as agent, representative, employee, or in any other
capacity.


 


27.          Attorneys’ Fees. In any action, suit or
proceedings brought hereunder, the successful or prevailing party shall be
entitled to recover its reasonable attorneys’ fees and other costs incurred in
connection with the action, suit or proceeding, in any addition to any other
relief to which such party may be entitled.


 


28.          Miscellaneous. Nothing in this Agreement,
express or implied, shall, is intended to, or shall be construed to, confer
upon or to give any person, firm or corporation, except the parties hereto, any
rights or remedies under or by reason of this Agreement. The language used in
this Agreement shall be deemed to be the language chosen by the parties to
express their mutual intent, and no rule of strict construction shall be
applied against any party. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.


 


IN WITNESS WHEREOF, THE PARTIES HERETO HAVE CAUSED THIS AGREEMENT, INCLUSIVE
OF ALL EXHIBITS, TO BE EXECUTED BY THEIR DULY AUTHORIZED REPRESENTATIVES.


 


	
  LIGHTSPACE CORPORATION

  
	
   

  
	
   

  
	
  Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  
	
  CUSTOMER

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature:

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
					



 


10

















 


EXHIBIT A


LIGHTSPACE CORPORATION


 


SUPPORT POLICY


 


LIGHTSPACE offers support for the Software upon the following terms and
conditions at Fees published by LIGHTSPACE from time to time. Current price
information is available from LIGHTSPACE. If CUSTOMER elects to obtain support
services from LIGHTSPACE, CUSTOMER must indicate same in the applicable Order
and submit the completed Order to LIGHTSPACE. Capitalized terms used herein and
not otherwise defined shall have the meanings assigned thereto in the LIGHTSPACE
End User Agreement (“Agreement”). This Support Policy applies only to Software
during the applicable support term and the applicable Use Period as specified
in the applicable Order (“Support Term”).


 


1.             LIGHTSPACE’S OBLIGATIONS. Subject to the terms of the
Agreement and this Support Policy, LIGHTSPACE shall provide the following
maintenance and support services (the “Support Services”) for the Software
during the Support Term:


 


(a)           Telephone and
Email Support. LIGHTSPACE will use commercially reasonable efforts to
provide reasonable telephone and e-mail support for the Software during the
hours of 9:00 a.m. to 5:00 p.m. U.S. Eastern Standard Time, on LIGHTSPACE’s
regular business days and such other assistance as is commercially reasonable
to cause the Software to perform in accordance with the Applicable
Specifications, as amended by LIGHTSPACE from time to time. LIGHTSPACE will use
commercially reasonable efforts to respond to a request for Support Services
within twenty-four (24) hours. LIGHTSPACE is under no obligation to provide
Support Services: (i) if CUSTOMER fails to notify LIGHTSPACE in writing of its
intention to purchase Support Services, (ii) if CUSTOMER fails to pay for the
Support Services within thirty (30) days of the beginning of each Support Term,
(iii) if the Product(s) have been subject to alteration, misuse, neglect,
accident or modifications or which are not capable of being tested by
LIGHTSPACE under its normal test conditions; or (iv) if the Product(s) have
been combined, operated or used with equipment, data, or software not furnished
by LIGHTSPACE.


 


(b)           Software
Maintenance. CUSTOMER may purchase Software Maintenance, on an annual
basis, in accordance with an Order. “Software Maintenance” means LIGHTSPACE
shall provide Maintenance Releases to the Software. provided that LIGHTSPACE
shall not be obligated to create, develop or release any Maintenance Releases. At
LIGHTSPACE’s election, Maintenance Releases may be delivered to CUSTOMER
electronically over an internet connection to CUSTOMER’s Hardware or by CD-Rom
or other similar permanent electronic media delivered to CUSTOMER’s address set
forth in the Agreement. CUSTOMER is responsible for installing Maintenance
Releases provided by LIGHTSPACE in accordance with any installation
instructions that may accompany them within a reasonable amount of time.
Software Maintenance does not provide CUSTOMER with access to new or different
Product(s) which may use all or part of the Hardware and Software and CUSTOMER
has no rights with respect to any such new or different software programs or
hardware platforms. LIGHTSPACE is under no obligation to offer or provide
Software Maintenance: (i) if CUSTOMER fails to notify LIGHTSPACE in writing of
its intention to purchase Software Maintenance, (ii) if CUSTOMER fails to pay
for the Software Maintenance within thirty (30) days of the beginning of each
Support Term, (iii) if the Software has been subject to alteration, misuse,
neglect, accident or modifications or which are not capable of being tested by
LIGHTSPACE under its normal test conditions; or (iv) if the Software has been
combined, operated or used with equipment, data, or software not furnished by
LIGHTSPACE.


 


(c)           LIGHTSPACE will not
be required to provide Support Services directly to CUSTOMER’s Participants,
customers and/or end Users. CUSTOMER shall be responsible for addressing all
inquiries from its Participants, and for providing all support to its
Participants with respect to the Subscribed Lightsofts, including resolving any
problems related to the use of the Subscribed Lightsofts by such Participants.


 


2.             CUSTOMER’S OBLIGATIONS. CUSTOMER agrees: (a) that the
contact persons identified on the Order (or such other replacement individuals
as CUSTOMER may designate in writing to LIGHTSPACE) shall be the sole contacts
for the coordination and receipt of the Support Services set forth in Section 1
of this Support Policy; (b) to maintain for Support Term, an internet address
for electronic mail communications with LIGHTSPACE; (c) to provide reasonable
supporting data (including written descriptions of problems, as requested by
LIGHTSPACE) and to aid in the identification of reported problems; (d) to
install and treat all Maintenance Releases delivered under this Support Policy
as Software in accordance with the terms of the Agreement; and (e) to maintain
the Agreement in force and effect.


 


3.             TERM AND TERMINATION. (a) Support Term. Support
Services for Product(s) will begin on the date set forth in the applicable
Order, and will apply to such Product{s) for a term of one (1) year, unless an
alternative term is identified in the Order. The initial term will be extended
for additional terms as set forth in the Order.


 


(b)           Default. If
CUSTOMER is in default of its obligations under the Agreement (except for
CUSTOMER’s obligation to maintain valid licenses for the Software, in which
case termination is immediate) and such default continues for thirty (30) days
following receipt of written notice from LIGHTSPACE, 


 


11

















 


LIGHTSPACE may, in addition to any other remedies it may have,
terminate the Services.


 


4.             SUPPORT FEES. CUSTOMER shall pay to LIGHTSPACE the Fees for
Support Services identified in the Order. Invoices for Services shall be billed
to the CUSTOMER on an annual basis and payment is due in advance of the period
covered by the Support Services. CUSTOMER shall not be entitled to any refund
or rebate if CUSTOMER elects to terminate the Support Services prior to end of
the applicable Support Term.


 


5.             WARRANTY; WARRANTY LIMITATION. (a) LIGHTSPACE warrants that
all Support Services to be performed hereunder will be performed in a
workmanlike manner, conforming to professional standards and practices. CUSTOMER’s
sole and exclusive remedy for any claim arising out of a breach of this
warranty shall be, at the LIGHTSPACE’s option, for LIGHTSPACE to reperform the
Support Services as warranted.


 


(b)           EXCEPT AS OTHERWISE
SET FORTH HEREIN, LIGHTSPACE DISCLAIMS ALL WARRANTIES INCLUDING WITHOUT
LIMITATION IMPLIED WARRANTIES OF TITLE., NONINFRINGEMENT, MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ALL WARRANTIES ARISING OUT OF
USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, WITH RESPECT TO
SUPPORT SERVICES PROVIDED UNDER THIS SUPPORT POLICY (INCLUDING THE FIXING OF
ERRORS THAT MAY BE CONTAINED IN THE PRODUCT). IN NO EVENT SHALL LIGHTSPACE BE
LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR ANY
INTERRUPTION OF BUSINESS OR LOSS OF USE, DATA OR PROFITS, HOWEVER CAUSED, AND
REGARDLESS OF THE FORM OF ACTION, EVEN IF LIGHTSPACE HAS BEEN ADVISED, KNEW OR
SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. LIGHTSPACE’S TOTAL
LIABILITY UNDER THIS SUPPORT POLICY SHALL NOT EXCEED THE AMOUNTS PAID TO
LIGHTSPACE IN RESPECT OF THE SPECIFIC SUPPORT SERVICES CAUSING THE CLAIM.


 


6.             GENERAL PROVISIONS. Upon the election by CUSTOMER to obtain
Support Services, the terms of this Support Policy shall be governed by and are
made a part of the Agreement. This Support Policy and the Agreement are the
complete and exclusive statement of the agreement between the parties relating
to the subject matter of this Support Policy and supersedes all prior oral or
written communications, purchase orders, agreements and understandings between
the parties.


 


12














 


Lightspace System
Quotation


 


	
  LIGHTSPACE

  	
   

  	
  Customer: Jarrid Mendelson

  
	
  125 CambridgePark Drive, Cambridge, MA02140

  	
   

  	
  Company: Just Light That

  
	
  Telephone: (617) 868-1700   Fax: (617) 868-1799

  	
   

  	
  Address: 10101 Snow Crest Place 

  
	
   

  	
   

  	
   

  	
  Las Vegas, NV 89134

  
	
   

  	
   

  	
  Phone: (702) 940-6514

  
	
   

  	
   

  	
   

  
	
  Lightspace System Description:

  Overall Dimensions: 16’x16’ (incl: a 1 tile
  Non-Interactive border and ramp around the entire surface)

  An Interactive surface of 9 x 9 tiles measuring 12’ x 12’

  Includes 81 Interactive Tiles + 5 spares = 86 Total Interactive Tiles

  Includes 40 Non-Interactive Tiles + 3 spares = 43 Total Non-Interactive Tiles

  



 


	
  Hardware and Software

  	
   

  	
  Qty.

  	
   

  	
  Unit Price

  	
   

  	
  Total Price

  	
   

  
	
  Interactive
  Tile R3.3 (16” x 16”)

  	
   

  	
  86

  	
   

  	
  $

  	
  650

  	
   

  	
  $

  	
  55,900

  	
   

  
	
  Non-Interactive
  Tile R1.2 (16” x 16”)

  	
   

  	
  43

  	
   

  	
  $

  	
  299

  	
   

  	
  $

  	
  12,857

  	
   

  
	
  Club
  Scene Control Station w/ LMS and Network

  	
   

  	
  1

  	
   

  	
  $

  	
  11,950

  	
   

  	
  $

  	
  11,950

  	
   

  
	
  LS Control
  Station R2.0 w/ Monitor and Accessories

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lightspace
  Management System (LMS) V1.3

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LS
  Communications Center

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Club
  Scene Software Package

  	
   

  	
  1

  	
   

  	
  $

  	
  9,995

  	
   

  	
  $

  	
  9,995

  	
   

  
	
  Base
  Lightsoft Package V1.0 (incl. 100 Lightsofts)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lightsoft
  Creator V1.3

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Installation
  Package

  	
   

  	
  1

  	
   

  	
  $

  	
  9,100

  	
   

  	
  $

  	
  9,100

  	
   

  
	
  Power Supply &
  Accessories

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Vinyl Floor
  Covering and Border Ramps

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Customized
  Peripheral Overlays

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Installation
  Kit

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  System
  Installation & Training

  	
   

  	
  1

  	
   

  	
  $

  	
  6,805

  	
   

  	
  $

  	
  6,805

  	
   

  
	
  Site Survey
  and Installation

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  One Day
  Onsite System Operation and Training

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Service Agreement
  (1year)

  	
   

  	
  1

  	
   

  	
  $

  	
  2,995

  	
   

  	
  $

  	
  2,995

  	
   

  
	
  24/7
  Telephone and Email Support

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Real Time
  Troubleshooting Support

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Promotional
  Las Vegas Discount

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  5,481

  	
   

  
	
  TOTAL

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  104,121

  	
   

  



 


All travel expenses, taxes and shipping fees are additional and will be
billed at cost.


Shipping: FOB Massachusetts, USA.


 


* NOTES:


 


1.              Additional
Vinyl Covering and Custom Overlays are available for purchase.


2.              Custom
software and application development is available at $250 per hour (8 hour
minimum).


3.              Based
upon the findings of a Site Survey, additional installation charges may apply.


4.              This
proposal does not include fees for electricians, building contractors,
inspectors, and other related installation fees.


5.              Post
installation, onsite maintenance and support is available at $600 per day plus
T&E.


6.              Onsite
training is conducted on the day of system installation.


7.              All
hardware excluding consumables (vinyl and overlays) are covered by a 1 year
warranty.


 


PAYMENT TERMS:


 


Fifty
percent (50%) on signing of this Quote.


Fifty
percent (50%) due on Installation of the Lightspace System.


 


I
have reviewed and accept the above quote and pricing and agree to purchase the Lightspace
System.


 


Quote
prepared by: Time Brown, Lightspace Corporation


 


	
  Signature:

  	
   

  	
   

  	
  Date:

  	
  8/22/04

  	
   

  



 


	
  TKB

  	
  Quote valid
  for 30 days

  



 


1

















 


LIGHTSPACE
CORPORATION

END USER AGREEMENT   No. 04-003


 


This End User Agreement, including all Exhibits attached hereto (collectively,
“Agreement”), is made as of August 22,
2004 (“Effective Date”), by and between
LIGHTSPACE CORPORATION (“LIGHTSPACE”), a
Delaware corporation with a place of business at 125 CambridgePark Drive,
Cambridge, MA O2140, and Just Light That, a Nevada corporation with a principal
place of business at 10577 Trussell LV NV 89141 (“CUSTOMER”).


 


WHEREAS, CUSTOMER desires to purchase the LIGHTSPACE Product{s) and
Services specified herein and LIGHTSPACE agrees to provide the Product(s) and
Services to CUSTOMER subject to this Agreement.


 


NOW THEREFORE, in consideration of the mutual promises and conditions
in this Agreement, the parties hereby agree as follows:


 


1.                                      Definitions. Certain definitions used in this Agreement, and not otherwise
defined herein, are as follows:


 


“Applicable Specifications” means the
functional and operational characteristics of the Product(s) as described in
the LIGHTSPACE’s then-current published Documentation.


 


“Authorized Computer” means the specific
computer system or systems delivered by LIGHTSPACE for use by the CUSTOMER on which
all Software shall be installed and operate.


 


“Catalog” means LIGHTSPACE’s Product
catalog that is either published on LIGHTSPACE’s internet website or otherwise
made available in written form, as modified from time to time by LIGHTSPACE.


 


“Confidential Information” means any
Information disclosed by the Discloser which is or should be reasonably
understood by the Recipient to be confidential or proprietary to the Discloser,
including, but not limited to, the material terms of this Agreement,
pre-release information relating to Product(s,) product designs, marketing
plans, customer lists, prices, policies, practices, technical processes and formulas,
source codes and other software, sales, cost and other unpublished financial
information, product and business plans, projections, and marketing data.
Confidential Information does not include information (a) independently
developed by employees of Recipient who have not had direct or indirect access
to Discloser’s Confidential Information; (b) generally known to the public
through no act or omission of Recipient; or; (c) obtained by a Recipient
from any third party not owing any confidentiality obligation to the Discloser;
provided that (i) no such exception shall apply except to the extent clearly
demonstrated by the Recipient; and (ii) only the specific information that
meets the exclusion shall be excluded and not any other information that
happens to appear in proximity to such excluded portion (for example, a portion
of a document may be excluded without affecting the confidential nature of
those portions that do not themselves qualify for exclusion).


 


“Discloser” means the party disclosing
Confidential Information or on whose behalf Confidential Information is
disclosed and such of Discloser’s suppliers, contractors and customers as
provide information in connection herewith.


 


“Documentation” means all installation
instructions, operations guides, manuals, errata sheets, read files, and other
materials provided by LIGHTSPACE to CUSTOMER in conjunction with the
Product(s), in whole or in part, in printed or electronic form.


 


“Fees” means, collectively, the license
fees for the Software, fees for Services and the purchase price of the
Hardware. as applicable, as set forth in each Order.


 


“Hardware” means the Tile Platforms,
Authorized Computers, and any other computer hardware and any other peripherals
which attach thereto to be sold to CUSTOMER hereunder.


 


“Lightsofts” means the LIGHTSPACE
application software described in the LIGHTSPACE Catalog.


 


“Losses” has the meaning set forth in Section 16.


 


“LPOS” means LIGHTSPACE’s Proprietary
Operating System software installed on the Hardware.


 


“Maintenance Releases” means versions of
the Software that consist of error corrections or patches made to the Software
that accomplish performance, structural, or functional improvements and are
offered generally or selectively to other subscribers for Software Maintenance,
but excluding new Product(s) or Services (unless such new Product(s) or
Services are offered by LIGHTSPACE as part of its Catalog and CUSTOMER has
purchased a license permitting access to such new Product(s) or Services).


 


“Objectionable” means any information in
any medium or format, including without limitation text, data, graphics, audio
or video content (or use of the content), or any action or behavior, that: (a) is
libelous or defamatory, pornographic, sexually explicit, or unlawful or that encourages
any of the foregoing; (b) a reasonable person would consider harassing,
abusive, threatening, harmful, vulgar, profane, obscene, excessively violent,
racially,


 

















 


ethnically or otherwise objectionable or offensive in any way or
promotes bigotry, racism or harm against any group or individual; (c) constitutes
a breach of any person’s privacy or publicity rights, a misrepresentation of
facts, hate speech or an infringement or misappropriation of any third party’s
intellectual property rights of any kind, including without limitation,
copyright, patent, trademark, industrial design, trade secret, confidentiality
or moral rights; (d) promotes software or services that deliver
unsolicited email, including without limitation, bulk e-mail, surveys,
contests, “junk mail,” “spam.” or chain letters; (e) disrupts or interferes
with the security of. or otherwise abuses, the Product(s), LIGHTSPACE’s network
or internet web sites, or any services, system resources, accounts, servers or
networks connected to same or any affiliated or linked programs or services; (f) is
subject to any restriction upon transmission under any law or under contractual
or fiduciary relationships (such as inside information, proprietary and
confidential information learned or disclosed as part of an employment relationship
or under a nondisclosure agreement); or (g) violates or encourages others
to violate any applicable law.


 


“Order” means that form of written
purchase order submitted by CUSTOMER to LIGHTSPACE and executed by the parties,
that lists the Product(s) and Services that CUSTOMER desires to obtain from LIGHTSPACE
as well as the appropriate Fees and payment terms for such Product(s) and
Services.


 


“Participant” shall mean a CUSTOMER
employee, contractor or customer to whom CUSTOMER permits access to the
Subscribed Lightsofts upon the terms and conditions set forth herein.


 


“Product(s)” shall mean the Hardware and
Software and all related Documentation received by CUSTOMER from LIGHTSPACE.


 


“Recipient” means the party receiving
Confidential Information hereunder.


 


“Services” shall mean any Installation
Services, Support Services (as defined in Exhibit A hereto), custom
development services or other consulting services provided by LIGHTSPACE
pursuant to LIGHTSPACE’s form of Master Consulting Agreement with such changes
as may be agreed upon by the parties (“MCA”).


 


“Site” means any physical address
location or installation venue, whether permanent, temporary or portable, where
the Product(s) are duly authorized by LIGHTSPACE to CUSTOMER for use or rental.


 


“Software” means the following software
that operates on the Hardware: (i) the LPOS, the Subscribed Lightsofts
which operate on the LPOS, and any other software licensed to CUSTOM ER
pursuant to an accepted Order that is proprietary to LIGHTSPACE; (ii) any
Third Party Software offered by LIGHTSPACE; and (iii) any Maintenance Releases
to the software described in clauses (i) and (ii).


 


“Subscribed Lightsofts” means the
lightsofts to which CUSTOMER has obtained a license hereunder.


 


“Term” has the meaning set forth in Section 13.


 


“Third Party Software” means software
that is proprietary to a third party that is licensed to CUSTOMER by LIGHTSPACE.


 


“Tile Platforms” means the interactive
electronic tile platforms or the peripheral (non-interactive) tile platforms
and the connecting components for such tile platforms to be sold to CUSTOMER hereunder.


 


“Use Period” means the period during the
Term during which CUSTOMER will have access to and the right to use a
particular Subscribed Lightsoft, as such period is specified in the Catalog as
of the date of the commencement such license, or as may otherwise be agreed
upon by the parties in writing.


 


2.                                      Purchase Orders. CUSTOMER shall submit an Order to LIGHTSPACE for each
purchase or license of Product(s) and Services. Each Order shall specify: (i) name
and LIGHTSPACE product code number of each Product and Services ordered, (ii) quantity
of each Product ordered, (iii) Fees for each Product or Service, (iv) requested
delivery date, if applicable, and (v) shipping instructions and shall
reference that it is a Order issued under the terms of this Agreement. All
Orders are subject to LIGHTSPACE’s written acceptance. LIGHTSPACE agrees to use
commercially reasonable efforts to notify CUSTOMER within live (5) days of
receipt of an Order if the Order has not been accepted by LIGHTSPACE. In the
event of a conflict between the terms of this Agreement and those appearing in
such Order, the terms and conditions of this Agreement shall prevail. Once an
Order has been accepted in writing by LIGHTSPACE, CUSTOMER may not amend
or cancel any Order without the prior written consent of LIGHTSPACE. Any
attempted amendment or cancellation shall result in CUSTOMER’s forfeiture of the
Fees paid by CUSTOMER at the time the Order was accepted by LIGHTSPACE.


 


3.                                      Grant of Software License. (a) Software. Subject to
the terms and conditions of this Agreement and the payment of all applicable Fees,
and Section 3(b) with respect to access to and use of Lightsofts, LIGHTSPACE
hereby grants to CUSTOMER a non-exclusive, non-transferable license, without
the right to sublicense, to (i) use the Software in object code form for
its internal purposes solely on the number of Authorized Computer(s) and Tile
Platform(s) specified in an accepted Order (and with respect to Subscribed Lightsofts,
solely during the applicable Use Period for each Lightsoft); and (ii) permit


 

















 


Participants to use the Software on the number of Authorized Computer(s)
and Tile Platform(s) specified in an accepted Order.


 


(b)                                 Lightsofts. During the Term, LIGHTSPACE
will provide or make available to CUSTOMER the right to subscribe to the Lightsofts
at the subscription level (“Subscription
Level”) set forth in the applicable Order. Subscribed Lightsofts
will be licensed to Customer pursuant to Section 3(a) above. CUSTOMER
is under no obligation, at any time during the Term to subscribe to any Lightsofts.
LIGHTSPACE reserves the right to modify the Catalog and/or Its Fees from time
to time to reflect Its then current offerings of Lightsofts. At any time during
the Term and upon payment of the then-current applicable Fee, CUSTOMER may upgrade
CUSTOMER’s Subscription Level. The Fees are not refundable, and CUSTOMER will
not receive any rebate or refund for downgrading CUSTOMER’s Subscription level
or terminating this Agreement at any time during the Term.


 


(c)                                  Ownership. All rights not expressly
granted hereunder are reserved to LIGHTSPACE. LIGHTSPACE retains all rights,
title and interest in (i) the Software and Documentation, and (ii) all
data generated by CUSTOMER’s and its Participants’ use of the Subscribed Lightsofts,
including without limitation any and all patents, patent applications,
copyrights, trade secrets, trademarks and other intellectual property rights,
and CUSTOMER shall not take any action inconsistent with such title and
ownership. CUSTOMER acknowledges and agrees that this Agreement grants to
CUSTOMER no title or right of ownership in the Software, notwithstanding the use
herein of the words “sale,” “sell,” “sold,” “purchase” and the like.


 


4.                                      Hardware. Title to all Hardware shall pass to CUSTOMER when the
Fees for such Hardware have been paid in full. If any Hardware on which the
Software has been installed becomes subject to the security interest of a third
party, the agreement under which such Hardware is secured must include
provisions providing that the secured party (and its assigns) shall have no
rights with respect to possession or use of the Software as installed on such
Hardware and shall be obligated to remove (or permit CUSTOMER to remove) the
Software upon any repossession of the Hardware. CUSTOMER acknowledges and agrees
that: (i) the Hardware provided by LIGHTSPACE may contain video and
photographic recording devices, (ii) LIGHTSPACE shall be permitted to use
such devices to transmit and record video and photographic images of CUSTOMER’s
Site, the Subscribed Lightsofts and/or the Hardware, for diagnostic, product
improvement and other such internal purposes.


 


5.                                      Restrictions on Use. (a) CUSTOMER may move the Product(s) and
Documentation freely from one Site to another Site so long as the CUSTOMER: (i) does
not exceed the licensed number of Authorized Computers and Tile Platforms; and (ii) does
not move or attempt to move the Product(s) outside the United States. CUSTOMER
agrees that it will not use or permit the Product(s) to be used in any manner,
whether directly or indirectly, that would enable CUSTOMER’s employees,
contractors or agents or any third party to use the Software on any computer
system other than on the number of licensed Authorized Computer(s) and Tile
Platform(s). LIGHTSPACE reserves the right, upon reasonable notice, to audit
CUSTOMER’s compliance with the provisions herein related to use of Product(s)
at the Site(s). CUSTOMER shall, at its cost and expense, take actions to comply
with such audit.


 


(b)                                 CUSTOMER shall not (i) copy,
rent, lease, sublicense, time share, distribute, reproduce, use or allow access
to the Product(s) except as explicitly permitted under this Agreement; (ii) modify,
adapt, translate, prepare derivative works from, reverse engineer, decompile or
otherwise attempt to derive source code from the Product(s) or any internal
data files generated by the Product(s), except to the extent that such activity
is expressly permitted by applicable law notwithstanding this limitation; or (iii) remove,
obscure, or alter LIGHTSPACE’s copyright notices, trademarks, or other
proprietary rights notices affixed to or contained within the Product(s).
CUSTOMER shall be allowed to duplicate Documentation for CUSTOMER’s internal
use only. The source code for the Software and other trade secrets embodied
therein are not disclosed to CUSTOMER.


 


(c)                                  CUSTOMER and its Participants
shall not use and shall not permit a third party to use the Product(s) in an
Objectionable manner. CUSTOMER acknowledges and agrees that: (i) Participants
may separately register with LIGHTSPACE for use of or access to certain LIGHTSPACE
software and materials, which software and materials may function in
conjunction with the Product(s) installed at the Site; and (ii) LIGHTSPACE
does not pre-screen Participants’ use of LIGHTSPACE software and materials or
Participants’ development of software and materials that may function in
conjunction with the Product(s) installed at the Site, nor shall LJGHTSPACE
assume any responsibility for any Objectionable material therein. Customer will
be liable for any breach of this Agreement by a Participant.


 


(d)                                 CUSTOMER is only being granted
the rights to use the Product(s) at the Sites and shall not export or re-export,
directly or indirectly (including via remote access) Product(s) or other information
or materials provided by LIGHTSPACE hereunder, to any country for which the
United States or any other relevant jurisdiction requires any export license or
other governmental approval at the time of export without first obtaining such
license or approval. CUSTOMER shall defend and indemnify LIGHTSPACE from and
against any Losses arising out of any claim that Product(s) or other
information or materials provided by LIGHTSPACE hereunder were


 

















 


exported or otherwise accessed, shipped or
transported in violation of applicable laws and regulations, CUSTOMER agrees
that it will comply with all applicable federal, state, and local laws and
regulations governing the use of the Product(s).


 


6.                                      Services. (a) Installation Services. CUSTOMER may,
pursuant to an Order, request that LIGHTSPACE perform installation
services with respect to the Product(s) (“Installation
Services”). Such Installation Services shall be performed at LIGHTSPACE’s
then-current rates as set forth in the applicable Order. Upon receipt of such Order
requesting Installation Services, LIGHTSPACE shall make arrangements with
CUSTOMER to install the Product(s) at the agreed upon Sites. LIGHTSPACE shall
not perform any customization of the Product(s) in connection with the Installation
Services, unless such customization is accomplished pursuant to Section 6(c) hereof.


 


(b)                                 Maintenance and Support. LIGHTSPACE’s current support
policy for the Software (as amended from time to time by LIGHTSPACE, the “Support Policy”) is set forth in Exhibit A
hereto. CUSTOMER may elect to obtain Support Services (as defined In the
Support Policy) for the Software at LIGHTSPACE’s current price and may,
pursuant to the Support Policy, eject to renew support at such prices and upon
such terms and conditions as LIGHTSPACE may publish from time to time. If
CUSTOMER elects to obtain Support Services, the terms of this Agreement,
supplemented by the Support Policy terms, shall govern the support
arrangements. Any Maintenance Releases of the Software delivered by way of
support services shall be treated for all purposes under this Agreement as
Software and all intellectual property rights therein shall be retained by LIGHTSPACE.


 


(c)                                  Customization and Consulting
Services.
During the Term, LIGHTSPACE may, upon request, provide or make available to CUSTOMER
customization and consulting services as shall be mutually agreed upon by the
parties. CUSTOMER is under no obligation, at any time during the Term to obtain
such customization and consulting services. Any requested LIGHTSPACE
customization or consulting service shall be provided pursuant to the terms of
the MCA.


 


7.                                      Shipments. Product(s) will be shipped F.O.B. LIGHTSPACE’s principal
place of business at 125 CambridgePark Drive, Cambridge, MA 02140. CUSTOMER is
responsible for the cost of all shipping, handling, insurance and any fees,
taxes and duties. All risk of loss with respect to the Product(s) shall pass to
CUSTOMER when such Product(s) are delivered to the carrier for shipment to
CUSTOMER. Unless previously agreed to by LIGHTSPACE, Product(s) shall be shipped
in LIGHTSPACE’s standard packaging.


 


8.                                      Delivery and Acceptance. (a) Delivery schedules for the Product(s) are
subject to LIGHTSPACE’s then-current lead times and Product(s) availability. LIGHTSPACE
will make reasonable efforts to meet delivery dates quoted or acknowledged, but
shall in no event be liable for failure to meet any such date(s). LIGHTSPACE
shall have the right to deliver Product(s) prior to any agreed upon delivery
date. LIGHTSPACE reserves the right to make deliveries in installments and any
Order or invoice shall be severable as to any such installments. Delay in
delivery or default of any installment shall not relieve CUSTOMER of its
obligation to accept and pay for remaining installments. CUSTOMER shall
carefully inspect all deliveries of Product(s) as they are received by CUSTOMER
and report to LIGHTSPACE promptly, but in any event within seven (7) calendar
days after receipt of shipment (“Inspection Period”), any alleged error,
shortage, defect or nonconformity of such Product(s). CUSTOMER’s acceptance of
each purchase or license of Product(s) (in each case, an “Acceptance”) shall occur as follows:


 


(i)                                     If CUSTOMER shall not have
purchased LIGHTSPACE’s Installation Services, then CUSTOMER shall be deemed to
have Accepted Product(s) upon the expiration of the Inspection Period, if
CUSTOMER shall not have notified LIGHTS PACE of any non-conformity in the
Product(s) prior to the expiration of such period.


 


(ii)                                  If CUSTOMER shall have purchased
LIGHTSPACE’s Installation Services, then upon the installation of the
Product(s) by LIGHTSPACE, CUSTOMER shall demonstrate such Acceptance of the
Product(s) by immediately signing and delivering to LIGHTSPACE, LIGHTSPACE’s form of
Customer Acceptance Form, as provided by LIGHTSPACE to Customer.


 


Notwithstanding the foregoing, any production use by CUSTOMER of the
Product(s) shall be deemed to be CUSTOMER’s Acceptance of the Product(s) for
purposes of this Section. The foregoing shall be CUSTOMER’s sole and exclusive
means of Acceptance of the Product(s).


 


9.                                      Payment Terms. (a) CUSTOMER shall pay to LIGHTSPACE the applicable
Fees in the amounts and on the dates set forth in each Order. Unless specified
differently in an Order, CUSTOMER shall pay for each Order as follows: (i) for
Product(s), Customer shall pay 50% of the applicable Fees set forth in the
Order at the time the Order is placed, and the remaining 50% upon the
Acceptance of Product(s) by CUSTOMER in accordance with Section 8 above; (ii) for
Maintenance and Support Services, Customer shall pay the applicable Fees in accordance
with Exhibit A; and (iii) for consulting services in accordance
with the MCA In the event of an adverse change in CUSTOMER’s creditworthiness,
as determined by LIGHTSPACE in its good faith judgment, LIGHTSPACE may require
alternative payment terms for Product(s) or withhold or suspend the shipment of
Product(s). Payment shall be in U.S. dollars. All payments


 

















 


shall be due and payable upon receipt by CUSTOMER of LIGHTSPACE’s invoice.


 


(b)                                 CUSTOMER grants to LIGHTSPACE a
security interest in all Product(s) in the amount of the Fees payable, plus all
other amounts due hereunder and all costs of collection incurred by LIGHTSPACE (including
but not limited to court costs and reasonable attorneys’ fees), and any
proceeds therefrom, and agrees that LIGHTSPACE retains, in addition to any
other rights of LIGHTSPACE, a right of repossession in such Product(s) until
such time as CUSTOMER has paid for such Product(s) in full, or a right to
require CUSTOMER to effect (at CUSTOMER’s expense) return delivery of such
Product(s) to LIGHTSPACE. CUSTOMER agrees to cooperate and execute all financing
statements and other documents as may be necessary for LIGHTSPACE to
perfect a security interest in the Product(s), and hereby authorizes a
designated representative of LIGHTSPACE to file any financing statement without
the signature of the CUSTOMER to the extent permitted by applicable law, and to
file a copy of this Agreement in lieu of a financing statement, in connection
with the perfection of such security interest. Overdue amounts shall bear interest
in an amount equal to one and one-half percent (1.5%) of the unpaid balance per
month (or portion thereof), or if less, at the highest interest rate permitted
by applicable law, calculated monthly from the date payment was due until the
date payment is made. CUSTOMER shall not withhold or set off from any amounts
due to LIGHTSPACE, any amounts claimed to be owed by LIGHTSPACE to CUSTOMER for
any reason whatsoever.


 


(c)                                  Fees included In accepted Orders
are exclusive of all shipping charges and all federal, state, municipal and all
other governmental excise, sales, use, and similar taxes, duties, or tariffs.
CUSTOMER agrees to pay all such shipping charges, taxes, duties, and tariffs. CUSTOMER
must provide LIGHTSPACE with written certification for any claim of tax or
other exemption prior to shipment of Product(s) or the performance of Services.
If LIGHTSPACE is required to pay additional taxes, duties, and tariffs CUSTOMER
shall immediately reimburse and hold LIGHTSPACE harmless for all such taxes.


 


10.                               Limited Warranty. (a) Unless otherwise specified in the Order, for a
period of one year from the date of Acceptance (“Warranty Period”), LIGHTSPACE warrants that the unaltered
Product(s) will substantially conform to the Applicable Specifications.
During the Warranty Period, nonconforming Product(s} may be returned by CUSTOMER
if CUSTOMER: (i) obtains a RMA from LIGHTSPACE in accordance with Section 11;
(ii) returns nonconforming Product(s) by a method of shipment approved by
LIGHTSPACE; and (iii) Product(s) are received by LIGHTSPACE in good
condition, without their markings altered, defaced, or removed, and accompanied
with a written description of the defect(s). The foregoing warranty does not apply
to (A) any Product(s) (A) that have been subject to, misuse, neglect,
accident or which are not capable of being tested by LIGHTSPACE under its
normal test conditions, or (B) any alterations, modifications,
combinations or enhancements of the Product(s) not created by LIGHTSPACE. LIGHTSPACE
shall have no liability for any warranty claim based upon the combination,
operation, or use of the Product(s) with equipment, data, or software not furnished
by LIGHTSPACE. LIGHTSPACE does not warrant that the Product(s) are error free,
will operate without interruption or are compatible with all equipment and/or
software configurations. CUSTOMER acknowledges that use of the Product(s) may result
in unexpected results, loss of data or other unpredictable damage or loss to CUSTOMER
LIGHTSPACE’s sole and exclusive liability and CUSTOMER’s sole and exclusive
remedy for any breach of the foregoing warranty shall be, at LIGHTSPACE’s
option, to repair, replace, or refund the Fees paid by CUSTOMER for the
defective Product(s).


 


(b)                                 EXCEPT AS PROVIDED IN THIS
SECTION, LIGHTSPACE MAKES NO OTHER WARRANTIES. EXPRESS OR IMPLIED, WITH RESPECT
TO THE PRODUCT(S), INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, NONINTERFERENCE WITH
ENJOYMENT AND ALL OTHER WARRANTIES ARISING OUT OF OR IN CONNECTION WITH THE SALE,
LICENSE, AND/OR PURCHASE OF THE PRODUCT(S), OR THE USE, REPAIR OR PERFORMANCE
THEREOF, OR ANY COURSE OF DEALING OR COURSE OF PERFORMANCE UNDER ANY AGREEMENT
BETWEEN CUSTOMER AND LIGHTSPACE.


 


This Limited Warranty does not apply to any Product or portion of a Product
which LIGHTSPACE identifies as a “Consumable.”


 


11.                               Return Policy. CUSTOMER must obtain a Return Material Authorization (“RMA”) prior to returning any Product(s) to LIGHTSPACE
for any reason. Product(s) returned to LIGHTSPACE without an RMA will not be
accepted and will be returned to CUSTOMER at CUSTOMER’s sole risk and expense.
CUSTOMER shall be responsible for the cost of all shipping, handling, and insurance
for all Product(s) returned to LIGHTSPACE. CUSTOMER may return defective
Hardware to LIGHTSPACE only during the Warranty Period; thereafter LIGHTSPACE
will use commercially reasonable efforts to repair Hardware at LIGHTSPACE’s
then-current hourly rates.


 


12.                               Discontinuance of Product(s). LIGHTSPACE reserves the right to
discontinue or withdraw any Product(s) from its Catalog at any time. LIGHTSPACE
will use commercially reasonable efforts to provide CUSTOMER with three (3) months
prior written notice of


 

















 


any such discontinuance or withdrawal of Product(s) from its Catalog. CUSTOMER
shall have the right to make a last-time purchase of such discontinued or
withdrawn Product(s), provided CUSTOMER accepts delivery of all such Product(s)
within three (3) months from the date of LIGHTSPACE’s notice of
discontinuance or withdrawal. With respect to Subscribed Lightsofts that are
discontinued, upon written request by CUSTOMER, CUSTOMER may be offered
the right to obtain a perpetual license for such discontinued Lightsoft on
terms to be mutually agreed upon in writing by both LIGHTSPACE and CUSTOMER.


 


13.                               Term and Termination. (a) The term of this Agreement shall commence as
of the Effective Date and shall remain in force until terminated by either
party in accordance with this Section (“Term”).


 


(b)                                 Either party may terminate
this Agreement on not less than thirty (30) days prior written notice if the
other party (i) is in material breach of any provision of this Agreement
and the party in breach does not cure said breach within such thirty (30) day
period, (ii) files a petition in bankruptcy, or has such petition flied
against it (which petition is not discharged within thirty (30) days after such
filing), (iii) makes an assignment for the benefit of creditors, or if a
receiver, trustee, custodian or similar agent is appointed or takes possession
of its assets, or (iv) generally ceases business in the ordinary course. LIGHTSPACE
shall have the right to terminate any outstanding Order issued under this
Agreement and to refuse any new Order if CUSTOMER commits any breach of this
Agreement and fails to remedy such breach within thirty (30) days after written
notice by LIGHTSPACE of such breach. Continued shipment by LIGHTSPACE following
CUSTOMER’s default shall not constitute any waiver by LIGHTSPACE of its rights
and remedies under this Agreement nor shall it relieve the CUSTOMER of any its
obligations herein. LIGHTSPACE’s termination of this Agreement and/or
repossession of the Product(s) shall be without prejudice to any other remedies
that LIGHTSPACE may have at law or in equity.


 


(c)                                  Upon the expiration or
termination of this Agreement for any reason, the license and all other rights
granted hereunder to CUSTOMER shall immediately cease, and CUSTOMER shall
immediately: (i) return the applicable Software to LIGHTSPACE together with
all Documentation; (ii) purge all copies of the Software from any other
computer storage medium or device on which CUSTOMER has placed or permitted
others to place the Software; (iii) destroy LIGHTSPACE Confidential
Information in CUSTOMER’s custody, possession or control and certify in writing
to LIGHTSPACE within two (2) weeks that it has complied with this Section;
and pay to LIGHTSPACE all outstanding obligations under the Agreement or Order.
Notwithstanding the foregoing, Sections 1, 3{c), 4, 5, 9, 10, 11 and 13-30
shall survive expiration or termination of this Agreement.


 


14.                               Confidential Information. (a) Each party acknowledges that
Confidential Information of the other party may be disclosed during the course
of this Agreement. Each Recipient agrees that it will (i) not disclose the
Discloser’s Confidential Information to anyone except to perform the
Recipient’s obligations hereunder; (ii) take steps that are substantially
equivalent to the steps it takes to protect its own proprietary information
(and in any event no less than reasonable steps), during the Term and following
expiration or termination of this Agreement. to prevent the duplication or
disclosure of Discloser’s Confidential Information, other than to its employees
or agents who must have access to such Confidential Information to perform such
party’s obligations hereunder, who each agree to comply with this provision;
and (iii) use the Confidential Information only for the purposes
specifically permitted hereunder or if not stated herein, solely to perform the
Recipient’s obligations hereunder. Each Recipient shall bear the responsibility
for breaches of this Section by any of its employees, contractors or
agents irrespective of whether the breach occurs during or after the period of
the employment, agency or contractor relationship. LIGHTSPACE shall have the
right to refer to CUSTOMER as its customer, and may use CUSTOMER as a reference
account without any obligation of confidentiality.


 


(b)                                 Either party may disclose
Confidential Information required to be disclosed by law; provided that it
shall (i) notify the Discloser hereunder promptly upon learning about any
court order or other legal requirement that purports to compel disclosure of
any Confidential Information; and (ii) cooperate with the Discloser (at
Discloser’s expense) in the exercise of the Discloser’s right to protect the
confidentiality of the Confidential Information before any tribunal or
governmental agency. Disclosure of Confidential Information pursuant to a court
order or other legal requirement that purports to compel disclosure of any
Confidential Information shall not constitute publication or otherwise alter
the character of that information as Confidential Information as between the
parties hereunder.


 


(c)                                  The parties agree that any
breach or threatened breach of this Section by a Recipient would cause not
only financial harm, but irreparable harm to the Discloser; and that money
damages will not provide an adequate remedy. In the event of a breach or
threatened breach of this Section by a Recipient, the Discloser shall, in
addition to any other rights and remedies it may have, be entitled (without
the necessity of posting any bond or surety) to an injunction restraining the Recipient
from disclosing or using, in whole or in part, any Confidential Information.


 


15.                               Limitation of Liability. EXCEPT FOR WITH RESPECT TO THIRD PARTY CLAIMS UNDER SECTION 16,
MISUSE OF LIGHTSPACE’S INTELLECTUAL PROPERTY AND BREACH OF THE


 

















 


CONFIDENTIALITY OBLIGATIONS UNDER SECTION 14, NEITHER PARTY SHALL BE
LIABLE FOR LOSS OF PROFITS OR SAVINGS OR LOSS OF BUSINESS, INCLUDING BUT NOT
LIMITED TO SPECIAL OR CONSEQUENTIAL DAMAGES, WHICH MAY BE CAUSED BY,
DIRECTLY OR INDIRECTLY, THE INADEQUACY OF THE PRODUCT(S) FOR ANY PURPOSE OR USE
THEREOF OR BY ANY DEFECT OR DEFICIENCY THEREIN. EVEN IF SUCH PARTY HAS BEEN
ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT
FOR WITH RESPECT TO THIRD PARTY CLAIMS UNDER SECTION 16, MISUSE OF
LIGHTSPACE’S INTELLECTUAL PROPERTY AND BREACH OF THE CONFIDENTIALITY
OBLIGATIONS UNDER SECTION 14, EACH PARTY’S LIABILITY FOR DAMAGES, IF ANY,
SHALL NOT EXCEED THE AMOUNTS PAID TO LIGHTSPACE BY CUSTOMER FOR THE PRODUCT(S)
UNDER THIS AGREEMENT. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF ANY
TRANSACTION UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN
ONE YEAR AFTER THE INJURED PARTY HAS KNOWLEDGE OF THE OCCURRENCE WHICH GIVES
RISE TO THE CAUSE OF SUCH ACTION.


 


16.                               Indemnity.


 


(a)                                 By LIGHTSPACE. LIGHTSPACE will defend,
indemnify and hold harmless CUSTOMER, its subsidiaries, parent corporations,
affiliates, officers, directors, independent contractors, partners, shareholders,
employees, agents, successors and assigns from and against a claim, suit,
demand, loss, damage, expense (including reasonable attorney’s fees) or
liability asserted by a third party (collectively, “Losses”) arising from or
related to any third party claim that the Product(s) infringes a valid United
States patent, trademark or copyright. LIGHTSPACE shall have no liability or obligation
to CUSTOMER under this Section 16(a) with respect to any claim in the
event and to the extent based upon: (i) use of the Product in an
application or environment or on a platform or with devices for which the
Product was not designed or contemplated (it being expressly agreed that the
Software is intended to operate on the Hardware), (ii) modifications.
alterations, combinations or enhancements of the Product not created by LIGHTSPACE,
(iii) any patent, trademark or copyright in which CUSTOMER or any
affiliate has an interest, or (iv) failure of CUSTOMER to install any
corrections or Maintenance Releases of the Product made available by LIGHTSPACE.
CUSTOMER shall indemnify and hold LIGHTSPACE harmless from all costs, damages
and expenses (including reasonable attorneys’ fees) arising from any claim
enumerated in clauses (i) through (iv) above.


 


In addition, LIGHTSPACE, at LIGHTSPACE’s option and expense, may (i) procure
for CUSTOMER the right to continue using such Product, (ii) replace or
modify the Product so it becomes non-infringing, or (iii) if options (i)-(ii) are
not available, terminate CUSTOMER’s license to the allegedly infringing Product
and pay to CUSTOMER an amount not to exceed the value of the Product for Which
CUSTOMER has paid a fee, depreciated on a straight line basis over a three (3) year
period.


 


(b)                                 By CUSTOMER. CUSTOMER shall defend,
indemnify and hold LIGHTSPACE, its subsidiaries, parent corporations,
affiliates, officers, directors, independent contractors. partners,
shareholders, employees, agents, successors and assigns harmless against any
losses to the arising from (1) CUSTOMER’s or its Participants’: (i) use
of the Product(s), including without limitation the posting or display of any
Objectionable material in connection with the Product(s); (ii) negligence
or intentional misconduct; or. (iii) failure to comply with applicable
laws; and (2) damage to or destruction of property of other persons or the
death or injury of third persons, including but not limited to employees or invitees
of LIGHTSPACE or CUSTOMER which damage, destruction, death or injury results
from or is caused by any act or omission of CUSTOMER, its employees, servants,
agents, or representatives.


 


(c)                                  Procedure. To receive the benefit of
indemnification under Sections 16(a) or 16{b), the party seeking
indemnification must promptly notify the indemnifying party in writing of a
claim or suit and provide reasonable cooperation (at the Indemnifying party’s
expense) and tender to the indemnifying party (and its insurer) full authority
to defend or settle the claim or suit. Neither party has any obligation to indemnify
the other party in connection with any settlement made without the indemnifying
party’s written consent. The indemnitee has the right to participate at its own
expense in the claim or suit and in selecting counsel therefor.


 


17.                               Notices:  All notices
relating to this Agreement shall be in writing and delivered by courier or by
hand or sent to the other party by first crass certified prepaid mail or by
common carrier with the ability to track and confirm delivery and shall be sent
to the following addresses:


 


To LIGHTSPACE:


 


Lightspace Corporation


125 CambridgePark Drive


Cambridge, MA 02140


Attn: CEO


 


	
  To CUSTOMER:

  
	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attn:

  	
   

  	
   

  
	
   

  	
   

  
			



 

















 


 


Notices shall be deemed to have been duly given (i) upon personal
delivery, (ii) upon deposit in the mail if mailed by certified mail,
return receipt requested, postage prepaid, (iii) upon deposit with a
recognized courier with next-day delivery instructions, or (iv) upon
confirmation of transmission, if sent by confirmed fax, to the address or fax
number set forth below or such other address or fax number as either party may specify
by notice sent in accordance with this Section 17.


 


18.                               Force Majeure. Except for CUSTOMER’s payment obligations to LIGHTSPACE,
neither party shall be responsible for failure to fulfill its obligations under
this Agreement due to causes beyond its reasonable control including, but not
limited to, accidents, labor disputes, military conflicts, acts of government,
acts of terrorism, insurrections, riots, explosions, lightning, earthquakes,
fires, storms and floods. No default shall be caused by and LIGHTSPACE shall
not be responsible to CUSTOMER for any loss, damages, or penalty resulting from
any delay or failure to perform the obligations of LIGHTSPACE herein that are
due to any cause beyond LIGHTSPACE’s control. Anticipated delivery dates by LIGHTSPACE
shall be deemed extended for a period of time equal to the time lost due to any
such delay excusable under this Section.


 


19.                               Governing Law and Severability. The validity, construction and performance
of this Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts without reference to choice of law
principles. If any term or provision of this Agreement or the application of
any such provision of this Agreement shall be held by a tribunal of competent
jurisdiction to be contrary to law, invalid or unenforceable, the remaining
provisions of this Agreement shall remain in full force and effect The United
Nations Convention on Contracts for the International Sale of Goods shall not apply
to this Agreement.


 


20.                               Resolution of Disputes; Waiver of Jury Trial; Exclusive Remedies. In the
event of any claim or dispute between the parties hereto with respect to the
interpretation or application of this Agreement that cannot be reasonably
resolved by a meeting of the principal representative of the parties, such
dispute shall be settled by arbitration before three arbitrators (selected from
a panel of persons having experience with and knowledge of the subject matter
of this Agreement, at least one of whom shall be an attorney) in Boston, Massachusetts
and administered by the American Arbitration Association in accordance with its
Commercial Arbitration Rules. Any provisional or equitable remedy which would
be available from a court of law shall be available from the arbitrators to the
parties in such proceeding. Judgment upon the award of the arbitrators may be
enforced in any court having jurisdiction thereof. The parties hereby consent
to: (i) the jurisdiction of the federal or state courts sitting or located
in Boston, Massachusetts for any action: (a) to compel arbitration, (b) to
enforce the award of the arbitrators, (c) prior to the appointment and
confirmation of the arbitrators, for temporary, interim or provisional
equitable remedies; or (d) arising from or related to a breach of
confidentiality or misuse of LIGHTSPACE intellectual property; and (ii) service
of process in any such action by registered mail, return receipt requested, or
by any other means provided by law. EACH PARTY AND HEREBY VOLUNTARILY WAIVES
ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN.


 


21.                               Injunctive Relief: CUSTOMER agrees that any breach of this Agreement will
cause LIGHTSPACE irreparable harm and that the damage will be difficult to
determine and that money damages alone will not be an adequate remedy. Therefore,
LIGHTSPACE shall have the right to seek injunctive relief against any breach or
threatened breach of this Agreement.


 


22.                               U.S. Government Restricted Rights. If the Product(s) are acquired by or
on behalf of a unit or agency of the United States Government (the “Government”),
the Government agrees that such Product(s) include “commercial computer
software” and commercial computer software documentation”, and that absent a written
agreement to the contrary, the Government’s rights with respect to such
Product(s) are, in the case of civilian agency use, RESTRICTED RIGHTS, as
defined in FAR §52.227-19, and if for the Department of Defense use, limited by
the terms of this Agreement, pursuant to DFARS §227.7202-1 through §227.7202-4 as
applicable. The use of the Product(s) by the Government constitutes
acknowledgment of LIGHTSPACE’s proprietary rights in the Product(s).
Contractor/manufacturer is LIGHTSPACE. LIGHTSPACE’s address is set forth at the
end of this Agreement.


 


23.                               Modification, Amendment, Supplement or Waiver. No modification,
amendment, supplement or waiver of this Agreement, or any to its provisions,
shall be binding upon the parties hereto unless made in writing and duly signed
by both parties. Any waiver of a provision of this Agreement, or of a breach or
default under this Agreement, shall apply only in the specific instance and purpose
given, and shall not constitute a waiver of any other default. Any failure or delay
by either party to enforce compliance with any term or condition of this
Agreement shall not constitute a waiver of such term or condition.


 


24.                               Entire Agreement. This Agreement, including all attachments, schedules
and exhibits hereto, constitutes the entire agreement between the parties in
connection with the subject matter hereof and supersede all prior and


 

















 


contemporaneous agreements, understandings, negotiations and discussions, whether
oral or written, of the parties, and there are no warranties, representations
and/or agreements among the parties in conjunction with the subject matter hereof
except as specifically set forth or referred to herein. All attachments,
schedules and exhibits hereto are expressly incorporated by reference, and
subject to, this Agreement, and in the event of any conflict between the terms
and provisions of this Agreement and the terms and provisions of any such
exhibit, schedule or attachment, or any Order or other invoice or any
written acceptance thereof, then the terms and provisions this Agreement shall
govern.


 


25.                               Assignment; Successors. The rights and licenses granted CUSTOMER hereunder are
restricted solely and exclusively to CUSTOMER. CUSTOMER shall not assign,
transfer or sublicense this Agreement or any of its rights or delegate the
performance of any of CUSTOMER’s obligations under this Agreement without the
prior written consent of LIGHTSPACE. Any such assignment. transfer, sublicense
or delegation without LIGHTSPACE’s prior written consent shall be void. All the
terms and conditions of this Agreement are binding upon and inure to the benefit
of the parties hereto, and their successors and assigns and legal
representatives.


 


26.                               Relationship of Parties. Both parties will, in all matters relating to this
Agreement, act as independent entities. Neither party will take any action that
assumes or creates, or represent that it has any authority to assume or create,
any obligation. order, agreement, contract, or other binding commitment,
express or implied, on behalf of the other party, or represent the other as
agent, representative, employee, or in any other capacity.


 


27.                               Attorneys’ Fees. In any action, suit or proceedings brought hereunder,
the successful or prevailing party shall be entitled to recover its reasonable
attorneys’ fees and other costs incurred in connection with the action, suit or
proceeding, in any addition to any other relief to which such party may be
entitled.


 


28.                               Miscellaneous. Nothing in this Agreement, express or implied, shall,
is intended to, or shall be construed to, confer upon or to give any person,
firm or corporation, except the parties hereto, any rights or remedies under or
by reason of this Agreement. The language used in this Agreement shall be
deemed to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction shall be applied against any party. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed to be an original, and all such counterparts shall constitute one and
the same instrument.


 


IN WITNESS WHEREOF, THE PARTIES HERETO HAVE CAUSED THIS AGREEMENT,
INCLUSIVE OF ALL EXHIBITS, TO BE EXECUTED BY THEIR DULY AUTHORIZED
REPRESENTATIVES.


 


	
  LIGHTSPACE CORPORATION

  
	
   

  
	
   

  
	
  Signature:

  	
   

  	
   

  
	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  
	
  CUSTOMER

  
	
   

  
	
   

  
	
  Signature:

  	
   

  	
   

  
	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  
	
  Title:

  	
   

  	
   

  
							



 

















 


EXHIBIT A


LIGHTSPACE
CORPORATION


 


SUPPORT POLICY


 


LIGHTSPACE offers support for the Software upon the following terms and
conditions at Fees published by LIGHTSPACE from time to time. Current price
information is available from LIGHTSPACE. If CUSTOMER elects to obtain support
services from LIGHTSPACE, CUSTOMER must indicate same in the applicable Order
and submit the completed Order to LIGHTSPACE. Capitalized terms used herein and
not otherwise defined shall have the meanings assigned thereto in the LIGHTSPACE
End User Agreement (“Agreement”). This Support Policy applies only to Software
during the applicable support term and the applicable Use Period as specified
in the applicable Order (“Support Term”).


 


1.                                      LIGHTSPACE’S OBLIGATIONS. Subject to the terms of the Agreement
and this Support Policy, LIGHTSPACE shall provide the following maintenance and
support services (the “Support Services”) for the Software during the Support
Term:


 


(a)                                 Telephone
and Email Support. LIGHTSPACE will use commercially reasonable efforts to
provide reasonable telephone and e-mail support for the Software during the
hours of 9:00 a.m. to 5:00 p.m. U.S. Eastern Standard Time, on LIGHTSPACE’s
regular business days and such other assistance as is commercially reasonable
to cause the Software to perform in accordance with the Applicable
Specifications, as amended by LIGHTSPACE from time to time. LIGHTSPACE will use
commercially reasonable efforts to respond to a request for Support Services
within twenty-four (24) hours. LIGHTSPACE is under no obligation to provide
Support Services: (i) if CUSTOMER fails to notify LIGHTSPACE in writing of
its intention to purchase Support Services, (ii) if CUSTOMER fails to pay
for the Support Services within thirty (30) days of the beginning of each
Support Term, (iii) if the Product(s) have been subject to alteration,
misuse, neglect, accident or modifications or which are not capable of being
tested by LIGHTSPACE under its normal test conditions; or (iv) if the
Product(s) have been combined, operated or used with equipment, data, or software
not furnished by LIGHTSPACE.


 


(b)                                 Software
Maintenance. CUSTOMER may purchase Software Maintenance, on an annual
basis, in accordance with an Order. “Software Maintenance” means LIGHTSPACE
shall provide Maintenance Releases to the Software. provided that LIGHTSPACE shall
not be obligated to create, develop or release any Maintenance Releases. At
LIGHTSPACE’s election, Maintenance Releases may be delivered to CUSTOMER
electronically over an internet connection to CUSTOMER’s Hardware or by CD-Rom
or other similar permanent electronic media delivered to CUSTOMER’s address set
forth in the Agreement. CUSTOMER is responsible for installing Maintenance Releases
provided by LIGHTSPACE in accordance with any installation instructions that may accompany
them within a reasonable amount of time. Software Maintenance does not provide
CUSTOMER with access to new or different Product(s) which may use all or part of
the Hardware and Software and CUSTOMER has no rights with respect to any such
new or different software programs or hardware platforms. LIGHTSPACE is under
no obligation to offer or provide Software Maintenance: (i) if CUSTOMER
fails to notify LIGHTSPACE in writing of its intention to purchase Software
Maintenance, (ii) if CUSTOMER fails to pay for the Software Maintenance
within thirty (30) days of the beginning of each Support Term, (iii) if
the Software has been subject to alteration, misuse, neglect, accident or
modifications or which are not capable of being tested by LIGHTSPACE under its
normal test conditions; or (iv) if the Software has been combined,
operated or used with equipment, data, or software not furnished by LIGHTSPACE.


 


(c)                                  LIGHTSPACE
will not be required to provide Support Services directly to CUSTOMER’s
Participants, customers and/or end Users. CUSTOMER shall be responsible for
addressing all inquiries from its Participants, and for providing all support
to its Participants with respect to the Subscribed Lightsofts, including
resolving any problems related to the use of the Subscribed Lightsofts by such
Participants.


 


2.                                      CUSTOMER’S OBLIGATIONS. CUSTOMER agrees: (a) that the contact
persons identified on the Order (or such other replacement individuals as
CUSTOMER may designate in writing to LIGHTSPACE) shall be the sole
contacts for the coordination and receipt of the Support Services set forth in Section 1
of this Support Policy; (b) to maintain for Support Term, an internet
address for electronic mail communications with LIGHTSPACE; (c) to provide
reasonable supporting data (including written descriptions of problems, as requested
by LIGHTSPACE) and to aid in the identification of reported problems; (d) to
install and treat all Maintenance Releases delivered under this Support Policy
as Software in accordance with the terms of the Agreement; and (e) to
maintain the Agreement in force and effect.


 


3.                                      TERM AND TERMINATION. (a) Support Term. Support
Services for Product(s) will begin on the date set forth in the applicable
Order, and will apply to such Product{s) for a term of one (1) year,
unless an alternative term is identified in the Order. The initial term will be
extended for additional terms as set forth in the Order.


 


(b)                                 Default.
If CUSTOMER is in default of its obligations under the Agreement (except for
CUSTOMER’s obligation to maintain valid licenses for the Software, in which
case termination is immediate) and such default continues for thirty (30) days
following


 

















 


receipt of written notice from LIGHTSPACE, LIGHTSPACE may, in addition
to any other remedies it may have, terminate the Services.


 


4.                                      SUPPORT FEES. CUSTOMER shall pay to LIGHTSPACE the Fees for
Support Services identified in the Order. Invoices for Services shall be billed
to the CUSTOMER on an annual basis and payment is due in advance of the period
covered by the Support Services. CUSTOMER shall not be entitled to any refund
or rebate if CUSTOMER elects to terminate the Support Services prior to end of the
applicable Support Term.


 


5.                                      WARRANTY; WARRANTY LIMITATION. (a) LIGHTSPACE warrants
that all Support Services to be performed hereunder will be performed in a
workmanlike manner, conforming to professional standards and practices. CUSTOMER’s
sole and exclusive remedy for any claim arising out of a breach of this
warranty shall be, at the LIGHTSPACE’s option, for LIGHTSPACE to reperform the
Support Services as warranted.


 


(b)                                 EXCEPT
AS OTHERWISE SET FORTH HEREIN, LIGHTSPACE DISCLAIMS ALL WARRANTIES INCLUDING
WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE., NONINFRINGEMENT, MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ALL WARRANTIES ARISING OUT OF
USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, WITH RESPECT TO
SUPPORT SERVICES PROVIDED UNDER THIS SUPPORT POLICY (INCLUDING THE FIXING OF
ERRORS THAT MAY BE CONTAINED IN THE PRODUCT). IN NO EVENT SHALL LIGHTSPACE
BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR ANY
INTERRUPTION OF BUSINESS OR LOSS OF USE, DATA OR PROFITS, HOWEVER CAUSED, AND REGARDLESS
OF THE FORM OF ACTION, EVEN IF LIGHTSPACE HAS BEEN ADVISED, KNEW OR SHOULD
HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. LIGHTSPACE’S TOTAL LIABILITY
UNDER THIS SUPPORT POLICY SHALL NOT EXCEED THE AMOUNTS PAID TO LIGHTSPACE IN
RESPECT OF THE SPECIFIC SUPPORT SERVICES CAUSING THE CLAIM.


 


6.                                      GENERAL PROVISIONS. Upon the election by CUSTOMER to obtain
Support Services, the terms of this Support Policy shall be governed by and are
made a part of the Agreement. This Support Policy and the Agreement are
the complete and exclusive statement of the agreement between the parties
relating to the subject matter of this Support Policy and supersedes all prior
oral or written communications, purchase orders, agreements and understandings between
the parties.


 














 


Lightspace System
Quotation


 


	
  Lightspace Corporation

  	
   

  	
  Customer: Chris
  Praizner 

  
	
  125 CambridgePark Drive., Cambridge, MA
  02140

  	
   

  	
  Company:  Spy Bar Cleveland

  
	
  Main phone: (617) 868-1700, Fax: (617)
  868-1799

  	
   

  	
  Address:

  	
  1261 West 6th Street,

  
	
   

  	
   

  	
   

  	
  Cleveland, OH 44113

  
	
   

  	
   

  	
  Phone:

  	
  216-621-7907

  
	
   

  	
   

  	
   

  
	
  Lightspace System Description:
Overall Dimensions: 16’ x 16’ (includes a 1 tile Peripheral Tile
  border and ramp around the entire surface)

  An interactive surface of 11 x 10 tiles measuring 17’ x 17’

  Includes 110 Interactive Tiles + 5 spares = 115 Total Interactive Tiles

  Includes 46 + 3 spare Peripheral Tiles = 49 Total Peripheral Tiles

  



 


	
  Hardware and Software

  	
   

  	
  Qty.

  	
   

  	
  Unit Price

  	
   

  	
  Total Price

  	
   

  
	
  Interactive
  Tile R3.3 (16” x 16”)

  	
   

  	
  115

  	
   

  	
  $

  	
  550

  	
   

  	
  $

  	
  63,250

  	
   

  
	
  Peripheral
  Tile R1.2 (16” x 16”)

  	
   

  	
  49

  	
   

  	
  $

  	
  275

  	
   

  	
  $

  	
  13,475

  	
   

  
	
  Club
  Scene Control Station w/ LMS and Network

  	
   

  	
  1

  	
   

  	
  $

  	
  13,700

  	
   

  	
  $

  	
  13,700

  	
   

  
	
  LS Control
  Station R2.0 w/ Monitor and Accessories

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lightspace
  Management System (LMS) V1.3

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LS
  Communications Center

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LightSpace
  UltraCam Video Software + Pan/Tilt Cam (diagnostic tool)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Club
  Scene Software Package

  	
   

  	
  1

  	
   

  	
  $

  	
  9,995

  	
   

  	
  $

  	
  9,995

  	
   

  
	
  Base
  Lightsoft Package V1.0 (incl. 100 Lightsofts)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lightsoft
  Creator V1.3

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Installation
  Package

  	
   

  	
  1

  	
   

  	
  $

  	
  11,575

  	
   

  	
  $

  	
  11,575

  	
   

  
	
  400 Amp
  Power Supply & Accessories

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Vinyl Floor
  Covering and Border Ramps

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Customized
  Peripheral Overlays

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Installation
  Kit

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  System
  Installation & Training

  	
   

  	
  1

  	
   

  	
  $

  	
  8,465

  	
   

  	
  $

  	
  8,465

  	
   

  
	
  Site Survey
  and Installation

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  One Day
  Onsite System Operation and Training

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Service
  Agreement (per year)

  	
   

  	
  1

  	
   

  	
  $

  	
  2,995

  	
   

  	
  $

  	
  2,995

  	
   

  
	
  24/7
  Telephone and Email Support

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Real Time
  Troubleshooting Support

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sub
  Total

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  123,455

  	
   

  
	
  Promotional
  Cleveland discount

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  38,455

  	
   

  
	
  TOTAL

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  85,000

  	
   

  



 


* Notes:


 


1.              Additional
Vinyl Covering and Custom Overlays are available for purchase.


2.              Custom
software and application development is available at $250 per hour (8 hour
minimum).


3.              Based
upon the findings of a Site Survey, additional installation charges may apply.


4.              This
proposal does not include fees for electricians, building contractors,
inspectors, and other related installation fees.


5.              Post
installation, onsite maintenance and support is available at $575 per day plus
T&E.


6.              Onsite
training is conducted on the day of system installation.


7.              All
hardware excluding consumables (vinyl and overlays) are covered by a 3 year
warranty.


 


PAYMENT TERMS:


 


$5,000
Deposit


$50,000
upon installation


$5,000
due on the first of the month beginning October 1st 2004 ending March 1st
2005.


 


I
have reviewed and accept the above quote and pricing and agree to purchase the
Lightspace System.


 


Quote
prepared by: Tim Brown, Lightspace Corporation


 


	
  Signature:

  	
   

  	
   

  	
  Date:

  	
  8/6/04

  	
   

  



 


	
  TKB

  	
  Quote valid for 30 days

  



 


1

















 


	
  LIGHTSPACETm

  	
   

  	
   

  	
   

  	
   

  
	
  CORPORATION

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Invoice Date

  
	
  125 CambridgePark Drive, 4th Fl.

  	
   

  	
   

  	
   

  	
  5-Aug-2004

  
	
  Cambridge, MA 02140

  	
   

  	
   

  	
   

  	
   

  
	
  Phone: (617) 868-1700

  	
   

  	
   

  	
   

  	
  Invoice Number

  
	
  Customer:

  	
   

  	
   

  	
   

  	
  20040008

  
	
  Christopher Praizner

  	
   

  	
   

  	
   

  	
   

  
	
  1261 W. 6th Street

  	
   

  	
  Terms:

  	
   

  	
  See Below

  
	
  Cleveland, OH 44113

  	
   

  	
  Sales
  Rep.:

  	
   

  	
  Tim Brown

  



 


	
  Description

  	
   

  	
  Quantity

  	
   

  	
  Unit Price

  	
   

  	
  Extended Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Interactive
  Tile R3.3 (16” x 16”)

  	
   

  	
  115

  	
   

  	
  $

  	
  550.00

  	
   

  	
  $

  	
  63,250.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Peripheral
  Tile R1.2 (16” X 16”)

  	
   

  	
  49

  	
   

  	
  $

  	
  275.00

  	
   

  	
  $

  	
  13,475.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Club
  Scene Control Station w/ LMS and Network

  	
   

  	
  1

  	
   

  	
  $

  	
  13,700.00

  	
   

  	
  $

  	
  13,700.00

  	
   

  
	
  LS Control
  Station R2.0 w/ Monitor and Accessories

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LS
  Managements System (LMS) V1.3

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LS
  Communications Center

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LS UltraCam
  Video Software + Pan/Tilt Cam (diagnostic tool)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Club
  Scene Software Package

  	
   

  	
  1

  	
   

  	
  $

  	
  9,995.00

  	
   

  	
  $

  	
  9,995.00

  	
   

  
	
  Base
  Lightsoft Package V1.0 (incl. 100 Lightsofts)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lightsoft
  Creator V1.3

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Installation
  Package

  	
   

  	
  1

  	
   

  	
  $

  	
  11,575.00

  	
   

  	
  $

  	
  11,575.00

  	
   

  
	
  400 Amp
  Power Supply & Accessories

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Vinyl Floor
  Covering and Border Ramps

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Customized
  Peripheral Overlays

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Installation
  Kit

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  System
  Installation & Training

  	
   

  	
  1

  	
   

  	
  $

  	
  8,465.00

  	
   

  	
  $

  	
  8,465.00

  	
   

  
	
  Site Survey
  and Installation

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  One Day
  Onsite System Operation and Training

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Service
  Agreement (per year)

  	
   

  	
  1

  	
   

  	
  $

  	
  2,995.00

  	
   

  	
  $

  	
  2,995.00

  	
   

  
	
  24/7
  Telephone and Email Support

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Real Time
  Troubleshooting Support

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sub
  Total

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  123,455.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Promotional
  Cleveland Discount:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  (38,455.00

  	
  )

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Other
  Information:

  	
   

  	
  Discount Sub Total

  	
   

  	
  $

  	
  85,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Payment
  Terms:

  	
   

  	
  Shipping & Handling

  	
   

  	
  —

  	
   

  
	
  $ 5,000
  Deposit

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  $ 50,000 on
  signing of End User Agreement due at installation

  	
   

  	
  Sales Tax

  	
   

  	
  —

  	
   

  
	
  $ 5,000 due
  on the first of the month beginning

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  September 1st,
  2004 and ending February 1st, 2005

  	
   

  	
  Invoice Total

  	
   

  	
  $

  	
  85,000.00

  	
   

  
											



 


2

















 


LIGHTSPACE CORPORATION

END USER AGREEMENT - No.04-002


 


This End User Agreement, including all Exhibits attached hereto, (collectively,
“Agreement”) is made as of August 3,
2004 (“Effective Date”), by and between LlGHTSPACE CORPORATION (“LlGHTSPACE”),
a Delaware corporation with a place of business at 125 CambridgePark Drive,
Cambridge, MA 02140, and CHRISTOPHER A. PRAIZNER
an individual with a principal place of business at 1261 W. 6th Street,
Cleveland, OH 44113 (“CUSTOMER”).


 


WHEREAS, CUSTOMER desires to purchase the LlGHTSPACE Product(s) and
Services specified herein and LlGHTSPACE agrees to provide the Product(s) and
Services to CUSTOMER subject to this Agreement.


 


NOW THEREFORE, in consideration of the mutual promises and conditions
in this Agreement, the parties hereby agree as follows:


 


1.                                      Definitions. Certain definitions used in this Agreement, and not
otherwise defined herein, are as follows:


 


“Applicable Specifications” means the
functional and operational characteristics of the Product(s) as described in
the LlGHTSPACE’s then-current published Documentation.


 


“Authorized Computer” means the specific
computer system or systems delivered by LlGHTSPACE for use by the CUSTOMER on
which all Software shall be installed and operate.


 


“Catalog” means LlGHTSPACE’s Product
catalog that is either published on LlGHTSPACE’s internet website or otherwise
made available in written form, as modified from time to time by LlGHTSPACE.


 


“Confidential Information” means any
information disclosed by the Discloser which is or should be reasonably
understood by the Recipient to be confidential or proprietary to the Discloser,
including, but not limited to, the material terms of this Agreement,
pre-release information relating to Product(s), product designs, marketing
plans, customer lists, prices, policies, practices, technical processes and
formulas, source codes and other software, sales, cost and other unpublished
financial information, product and business plans, projections, and marketing
data. Confidential Information does not include information (a) independently
developed by employees of Recipient who have not had direct or indirect access
to Discloser’s Confidential Information; (b) generally known to the public
through no act or omission of Recipient; or; (c) obtained by a Recipient
from any third party not owing any confidentiality obligation to the Discloser;
provided that (i) no such exception shall apply except to the extent
clearly demonstrated by the Recipient; and (ii) only the specific
information that meets the exclusion shall be excluded and not any other
information that happens to appear in proximity to such excluded portion (for
example, a portion of a document may be excluded without affecting the
confidential nature of those portions that do not themselves qualify for
exclusion).


 


“Discloser” means the party disclosing
Confidential Information or on whose behalf Confidential Information is
disclosed and such of Discloser’s suppliers, contractors and customers as
provide information in connection herewith.


 


“Documentation” means all installation
instructions, operations guides, manuals, errata sheets, read files, and other materials
provided by LlGHTSPACE to CUSTOMER in conjunction with the Product(s), in whole
or in part, in printed or electronic form.


 


“Fees” means, collectively, the license
fees for the Software, fees for Services and the purchase price of the
Hardware, as applicable, as set forth in each Order.


 


“Hardware” means the Tile Platforms,
Authorized Computers, and any other computer hardware and any other peripherals
which attach thereto to be sold to CUSTOMER hereunder.


 


“Lightsofts” means the LlGHTSPACE application
software described in the LlGHTSPACE Catalog.


 


“Losses” has the meaning set forth in Section 16.


 


“LPOS” means LlGHTSPACE’s Proprietary
Operating System software installed on the Hardware.


 


“Maintenance Releases” means versions of
the Software that consist of error corrections or patches made to the Software
that accomplish performance, structural, or functional improvements and are
offered generally or selectively to other subscribers for Software Maintenance,
but excluding new Product(s) or Services (unless such new Product(s) or
Services are offered by LlGHTSPACE as part of its Catalog and CUSTOMER has
purchased a license permitting access to such new Product(s) or Services).


 


“Objectionable” means any information in
any medium or format, including without limitation text, data, graphics, audio
or video, content (or use of the content), or any action or behavior, that: (a) is
libelous or defamatory, pornographic, sexually explicit, or unlawful or that
encourages any of the foregoing; (b) a reasonable person would consider
harassing, abusive, threatening, harmful, vulgar, profane, obscene, excessively
violent, racially, ethnically or otherwise objectionable or offensive in any
way or promotes bigotry, racism or harm against any


 


1

















 


group or individual; (c) constitutes a breach of any person’s
privacy or publicity rights, a misrepresentation of facts, hate speech or an
infringement or misappropriation of any third party’s intellectual property
rights of any kind, including without limitation, copyright, patent, trademark,
industrial design, trade secret, confidentiality or moral rights; (d) promotes
software or services that deliver unsolicited email, including without
limitation, bulk e-mail, surveys, contests, “junk mail,” “spam,” or chain
letters; (e) disrupts or interferes with the security of, or otherwise
abuses, the Product(s), LlGHTSPACE’s network or internet web sites, or any
services, system resources, accounts, servers or networks connected to same or
any affiliated or linked programs or services; (f) is subject to any
restriction upon transmission under any law or under contractual or fiduciary
relationships (such as inside information, proprietary and confidential
information learned or disclosed as part of an employment relationship or
under a nondisclosure agreement); or (g) violates or encourages others to
violate any applicable law.


 


“Order” means that form of written
purchase order submitted by CUSTOMER to LlGHTSPACE and executed by the parties,
that lists the Product(s) and Services that CUSTOMER desires to obtain from
LlGHTSPACE as well as the appropriate Fees and payment terms for such
Product(s) and Services.


 


“Participant” shall mean a CUSTOMER
employee, contractor or customer to whom CUSTOMER permits access to the
Subscribed Lightsofts upon the terms and conditions set forth herein.


 


“Product(s)” shall mean the Hardware and
Software and all related Documentation received by CUSTOMER from LIGHTSPACE.


 


“Recipient” means the party receiving
Confidential Information hereunder.


 


“Services”
shall mean any Installation Services, Support Services (as defined in Exhibit 6
hereto), custom development services or other consulting services provided by LIGHTSPACE
pursuant to LIGHTSPACE’s form of Master Consulting Agreement with such
changes as may be agreed upon by the parties (“MCA”).


 


“Site” means; any physical address
location or installation venue, whether permanent, temporary or portable, where
the Product(s) are duly authorized by LIGHTSPACE to CUSTOMER for use or rental.


 


“Software” means the following software
that operates on the Hardware: (i) the LPOS, the Subscribed Lightsofts
which operate on the LPOS, and any other software licensed to CUSTOMER pursuant
to an accepted Order that is proprietary to LIGHTSPACE; (ii) any Third
Party Software offered by L.IGHTSPACE; and (iii) any Maintenance Releases
to the software described in clauses (i) and (ii).


 


“Subscribed Lightsofts” means the
Lightsofts to which CUSTOMER has obtained a license hereunder.


 


“Term” has the meaning set forth in Section 13.


 


“Third Party Software” means software
that is proprietary to a third party that is licensed to CUSTOMER by
LIGHTSPACE.


 


“Tile Platforms” means the interactive
electronic tile platforms or the peripheral (non-Interactive) tile platforms
and the connecting components for such tile platforms to be sold to CUSTOMER
hereunder.


 


“Use Period” means the period during the
Term during which CUSTOMER will have access to and the right to use a
particular Subscribed Lightsoft, as such period is specified in the Catalog as
of the date of the commencement such license, or as may otherwise be
agreed upon by the parties in writing.


 


2.                                      Purchase Orders. CUSTOMER shall submit an Order to LIGHTSPACE for each
purchase or license of Product(s) end Services. Each Order shall specify; (i) name
and LIGHTSPACE product code number of each Product and Services ordered, (ii) quantity
of each Product ordered, (iii) Fees for each Product or Service, (iv) requested
delivery date, If applicable, end (v) shipping Instructions and shall reference
that It is a Order issued under the terms of this Agreement. All Orders are
subject to LIGHTSPACE’s written acceptance. LIGHTSPACE agrees to use
commercially reasonable efforts to notify CUSTOMER within five (5) days of
receipt of an Order if the Order has not been accepted by LIGHTSPACE. In the
event of a conflict between the terms of this Agreement and those appearing in
such Order, the terms and conditions of this Agreement shall prevail. Once an
Order has been accepted in writing by LIGHTSPACE, CUSTOMER may not amend
or cancel any Order without the prior written consent of LIGHTSPACE. Any
attempted amendment or cancellation shall result in CUSTOMER’s forfeiture of
the Fees paid by CUSTOMER at the time the Order was accepted by LIGHTSPACE:.


 


3.                                      Grant of Software License. (a) Software. Subject to
the terms and conditions of this Agreement and the payment of all applicable
Fees, and 5ection 3(b) with respect to access to and use of Lightsofts,
LIGHTSPACE hereby grants to CUSTOMER a non-exclusive, nontransferable license,
without the right to sublicense, to (i) use the Software in object code form for
its internal purposes solely on the number of Authorized Computer(s) and Tile
Platform{s) specified in an accepted Order (and with respect to Subscribed Lightsofts,
solely during the applicable Use Period for each Lightsoft); and (II) permit
Participants to use the Software on the number of Authorized Computer(s) and
Tile Platform(s) specified In an accepted Order.


 


(b)                                 Lightsofts. During the Term, LIGHTSPACE
will provide or make available to CUSTOMER the right to


 


2

















 


subscribe to
the Lightsofts at the subscription level (“Subscription
Level”) set forth In the applicable Order, Subscribed Lightsofts
will be licensed to Customer pursuant to Section 3(a) above. CUSTOMER
is under no obligation, at any time during the Term to subscribe to any
Lightsofts. LIGHTSPACE reserves the right to modify the Catalog and/or its Fees
from time to time to reflect its then current offerings of Lightsofts. At any
time during the Term and upon payment of the then-current applicable Fee,
CUSTOMER may upgrade CUSTOMER’s Subscription Level, The Fees are not
refundable, and CUSTOMER will not receive any rebate or refund for downgrading
CUSTOMER’s Subscription Level or terminating this Agreement at any time during
the Term.


 


(c)                                  Ownership. All rights not expressly
granted hereunder are reserved to LlGHTSPACE. LIGHTSPACE retains all rights,
title and interest in (i) the Software and Documentation, and (ii) all
data generated by CUSTOMER’s and its Participants’ use of the Subscribed
Lightsofts, including without limitation any and all patents, patent
applications, copyrights, trade secrets, trademarks and other intellectual
property rights, and CUSTOMER shall not take any action inconsistent with such
title and ownership. CUSTOMER acknowledges and agrees that this Agreement
grants to CUSTOMER no title or right of ownership in the Software.
notwithstanding the use herein of the words “sale”, “sell”, “sold”, “purchase”
and the like.


 


4.                                      Hardware. Time to Time Hardware shall pass to CUSTOMER when the
Fees for such Hardware have been paid in full. If any Hardware on which the Software
has been Installed becomes subject to the security interest of a third party,
the agreement under which such Hardware is secured must include provisions
providing that the secured party (and its assigns) shall have no rights with
respect to possession or use of the Software as installed on such Hardware and
shall be obligated to remove (or permitt CUSTOMER to remove) the Software upon
any repossession of the Hardware. CUSTOMER acknowledges and agrees that: (i) the
Hardware provided by LIGHTSPACE may contain video and photographic
recording devices, (ii) LlGHTSPACE shall be permitted to use such devices
to transmit and record video and photographic images of CUSTOMER’s Site, the
Subscribed Lightsofts and/or the Hardware, for diagnostic, product improvement
and other such InternaI purposes.


 


5.                                      Restrictions on Use. (a) CUSTOMER may move the Product(s) and Documentation
freely from one Site to another Site so long as the CUSTOMER: (i) does not
exceed the licensed number of Authorized Computers and Tile Platforms; and (ii) does
not move or attempt to move the Product(s) outside the United States. CUSTOMER
agrees that it will not use or permit the Product(s) to be used in any manner,
whether directly or indirectly, that would enable CUSTOMER’s employees,
contractors or agents or any third party to use the Software on any computer
system other than on the number of licensed Authorized Computer(s) and Tile
Platform(s}. LIGHTSPACE reserves the right, upon reasonable notice, to audit
CUSTOMER’s compliance with the provisions herein related to use of Product(s) and
the Site(s). CUSTOMER shall, at its cost and expense, take actions to comply
with such audit.


 


(b)                                 CUSTOMER shall not (i) copy,
rent. lease, sublicense, time share, distribute, reproduce, use or allow access
to the Product(s) except as explicitly permitted under this Agreement; (ii) modify,
adapt, translate, prepare derivative works from, reverse engineer, decompile or
otherwise attempt to derive source code from the Product(s) or any Internal
data files generated by the Product(s), except to the extent that such activity
is expressly permitted by applicable law notwithstanding this limitation; or (iii) remove
obscure, or alter LIGHTSPACE’s copyright notices, trademarks, or other
proprietary rights notices affixed to or contained within the Product(s).
CUSTOMER shall be allowed to duplicate Documentation for CUSTOMER’s Internal use
only. The source code for the Software and other trade secrets embodied therein
are not disclosed to CUSTOMER.


 


(c)                                  CUSTOMER and its Participants
shall not use and shall not permit a third party to use the Product(s) in an
Objectionable manner. CUSTOMER acknowledges and agrees that: (i) Participants
may separately register with LIGHTSPACE for use of .or access to certain
LIGHTSPACE software and materials, which software and materials may function
in conjunction with the Product(s) Installed at the Site; and (ii) LlGHTSPACE
does not pre-screen Participants’ use of LIGHTS PACE software and materials or
Participants’ development of software and materials that may function in
conjunction with the Product(s) installed at the Site, nor shall LlGHTSPACE
assume any responsibility for any Objectionable material therein. Customer will
be liable for any breach of this Agreement by a Participant.


 


(d)                                 CUSTOMER is only being granted
the rights to use the Product(s) at the Sites and shall not export or re-export,
directly or indirectly (including via remote access) Product(s) or other
information or materials provided by LIGHTSPACE hereunder, to any country for
which the United States or any other relevant jurisdiction requires any export
license or other governmental approval at the time of export without first
obtaining such license or approval. CUSTOMER shall defend and indemnify LIGHTSPACE
from and against any Losses arising out of any claim that Product(s) or other
information or materials provided by LIGHTSPACE hereunder were exported or
otherwise accessed, shipped or transported in violation of applicable laws and
regulations. CUSTOMER agrees that it will comply with all applicable federal,
state, and local laws and regulations governing the use of the Product(s).


 


6.                                      Services. (a) Installation Services. CUSTOMER may,
pursuant to an Order, request that LIGHTSPACE perform installation
services with respect to the Product(s) (“Installation
Services”). Such Installation Services shall be performed at LIGHTSPACE’s
then-current rates as set forth in the applicable Order. Upon receipt of such
Order


 


3

















 


requesting Installation Services, LIGHTSPACE shall make arrangements with
CUSTOMER to install the Product(s) at the agreed-upon Sites. LIGHTSPACE shall
not perform any customization of the Product(s) in connection with the
Installation Services, unless such customization is accomplished pursuant to Section 6(c) hereof.


 


(b)                                 Maintenance and Support. LIGHTSPACE’s current support
policy for the Software (as amended from time to time by LIGHTSPACE, the “Support Policy”) is set forth in Exhibit A
hereto. CUSTOMER may elect to obtain Support Services (as defined in the
Support Policy) for the Software at LIGHTSPACE’s current price and may,
pursuant to the Support Policy, elect to renew support at such prices and upon
such terms and conditions as LIGHTSPACE may publish from time to time. If
CUSTOMER elects to obtain Support Services, the terms of this Agreement,
supplemented by the Support Policy terms, shall govern the support
arrangements. Any Maintenance Releases of the Software delivered by way of
support services shall be treated for all purposes under this Agreement as
Software and all intellectual property rights therein shall be retained by LIGHTSPACE.


 


(c)                                  Customization and Consultinq
Services.
During the Term, LIGHTSPACE may, upon request, provide or make available to
CUSTOMER customization and consulting services as shall be mutually agreed upon
by the parties. CUSTOMER is under no obligation, at any time during the Term to
obtain such customization and consulting services. Any requested LIGHTSPACE
customization or consulting service shall be provided pursuant to the terms of
the MCA.


 


7.                                      Shipments. Product(s) will be shipped F.O.B. LIGHTSPACE’s
principal place of business at 125 Cambridge Park Drive, Cambridge, MA 02140.
CUSTOMER is responsible for the cost of all shipping, handling, insurance and
any fees, taxes and duties. All risk of loss with respect to the Product(s)
shall pass to CUSTOMER when such Product(s) are delivered to the carrier for
shipment to CUSTOMER. Unless previously agreed to by LIGHTSPACE, Product(s)
shall be shipped in LIGHTSPACE’s standard packaging.


 


8.                                      Delivery
and Acceptance. (a) Delivery schedules for the Product(s) are
subject to LIGHTSPACE’s then-current lead times and Product(s) availability. LIGHTSPACE
will make reasonable efforts to meet delivery dates quoted or acknowledged, but
shall in no event be liable for failure to meet any such date(s). LIGHTSPACE
shall have the right to deliver Product(s) prior to any agreed upon delivery
date. LIGHTSPACE reserves the right to make deliveries in installments and any
Order or invoice shall be severable as to any such installments. Delay in
delivery or default of any installment shall not relieve CUSTOMER of its
obligation to accept and pay for remaining installments. CUSTOMER shall
carefully inspect all deliveries of Product(s) as they are received by CUSTOMER
and report to LIGHTSPACE promptly, but in any event within seven (7) calendar
days after receipt of shipment (“Inspection
Period”), any alleged error, shortage, defect or nonconformity of
such Product(s). CUSTOMER’s acceptance of each purchase or license of
Product(s) (in each case, an “Acceptance”)
shall occur as follows:


 


(i)                                     If CUSTOMER shall not have
purchased LIGHTSPACE’s Installation Services, then CUSTOMER shall be deemed to
have Accepted Product(s) upon the expiration of the Inspection Period, if
CUSTOMER shall not have notified LIGHTSPACE of any non-conformity in the
Product(s) prior to the expiration of such period.


 


(ii)                                  If CUSTOMER shall have purchased
LIGHTSPACE’s Installation Services, then upon the installation of the
Product(s) by LIGHTSPACE, CUSTOMER shall demonstrate such Acceptance of the
Product(s) by immediately signing and delivering to LIGHTSPACE, LIGHTSPACE’S form of
Customer Acceptance Form, as provided by LIGHTSPACE to Customer.


 


Notwithstanding the foregoing, any production use by CUSTOMER of the
Product(s) shall be deemed to be CUSTOMER’s Acceptance of the Product(s) for
purposes of this Section. The foregoing shall be CUSTOMER’s sole and exclusive
means of Acceptance of the Product(s).


 


9.                                      Payment Terms. (a) CUSTOMER shall pay to LIGHTSPACE the
applicable Fees in the amounts and on the dates set forth in each Order. Unless
specified differently in an Order, CUSTOMER shall pay for each Order as
follows: (i) for Product(s), Customer shall pay 50% of the applicable Fees
set forth in the Order at the time the Order is placed, and the remaining 50%
upon the Acceptance of Product(s) by CUSTOMER in accordance with Section 8
above; (ii) for Maintenance and Support Services, Customer shall pay the
applicable Fees in accordance with Exhibit A; and, (iii) for
consulting services in accordance with the MCA. In the event of an adverse
change in CUSTOMER’s creditworthiness, as determined by LIGHTSPACE in its good
faith judgment, LIGHTSPACE may require alternative payment terms for
Product(s) or withhold or suspend the shipment of Product(s). Payment shall be
in U.S. dollars. All payments shall be due and payable upon receipt by CUSTOMER
of LIGHTSPACE’s invoice.


 


(b)                                 CUSTOMER grants to LIGHTSPACE a
security interest in all Product(s) in the amount of the Fees payable, plus all
other amounts due hereunder and all costs of collection incurred by LIGHTSPACE
(including but not limited to court costs and reasonable attorneys’ fees), and
any proceeds therefrom, and agrees that LIGHTSPACE retains, in addition to any
other rights of LIGHTSPACE, a right of repossession in such Product(s) until such
time as CUSTOMER has paid for such Product(s) in full, or a right to require
CUSTOMER to effect (at CUSTOMER’s expense) return delivery of such Product(s)
to LIGHTSPACE. CUSTOMER agrees to cooperate and execute all financing
statements and other documents as may be necessary for LIGHTSPACE to
perfect a security


 


4

















 


interest in the
Product(s), and hereby authorizes a designated representative of LIGHTS PACE to
file any financing statement without the signature of the CUSTOMER, to the
extent permitted by applicable law, and to file a copy of this Agreement in
lieu of a financing statement, in connection with the perfection of such
security interest. Overdue amounts shall bear interest in an amount equal to
one and one-half percent (1.5%) of the unpaid balance per month (or portion
thereof), or if less, at the highest interest rate permitted by applicable law,
calculated monthly from the date payment was due until the date payment is
made. CUSTOMER shall not withhold or set off from any amounts due to LIGHTSPACE,
any amounts claimed to be owed by LIGHTSPACE to CUSTOMER for any reason
whatsoever.


 


(c)                                  Fees included in accepted Orders
are exclusive of all shipping charges and all federal, state, municipal and all
other governmental excise, sales, use, and similar taxes, duties, or tariffs.
CUSTOMER agrees to pay all such shipping charges, taxes, duties, and tariffs.
CUSTOMER must provide LIGHTSPACE with written certification for any claim of
tax or other exemption prior to shipment of Product(s) or the performance of
Services. If LIGHTSPACE is required to pay additional taxes, duties, and
tariffs CUSTOMER shall immediately reimburse and hold LIGHTSPACE harmless for
all such taxes.


 


10.                               Limited Warranty. (a) Unless otherwise specified in the Order, for a
period of one year from the date of Acceptance (“Warranty Period”), LIGHTSPACE
warrants that the unaltered Product(s) will substantially conform to the
Applicable Specifications. During the Warranty Period, nonconforming Product(s)
may be returned by CUSTOMER if CUSTOMER; (i) obtains a RMA from LIGHTSPACE
in accordance with Section 11: (ii) returns nonconforming product(s)
by a method of shipment approved by LIGHTSPACE; and (iii) Product(s} are
received by LIGHTSPACE In good condition. without their markings altered,
defaced, or removed and accompanied with a written description of the defect(s).
The foregoing warranty does not apply to (A) any Product(s) (A) that
have been subject to, misuse, neglect, accident or which are not capable of
being tested by LIGHTSPACE: under its normal test conditions, or (B) any
alterations, modifications, combinations or enhancements of the Product(s) not created
by LIGHTSPACE. LIGHTSPACE shall have no liability for any warranty claim based
upon the combination, operation. or use of the Product(s) with equipment, data,
or software not furnished by LIGHTSPACE. LIGHTSPACE does not warrant that the
Product(s) are error free, will operate without Interruption or are compatible
with all equipment and/or software configurations. CUSTOMER acknowledges that
use of the Product(s) may result in unexpected results, loss of data or
other unpredictable damage or loss to CUSTOMER. LIGHTSPACE’s sole and exclusive
liability and CUSTOMER’s sole and exclusive remedy for any breach of the
foregoing warranty shall be. at LlGHTSPACE’s option, to repair, replace, or
refund the Fees paid by CUSTOMER for the defective Product(s).


 


(b)                                 EXCEPT AS PROVIDED IN THIS
SECTION, LIGHTSPACE MAKES NO OTHER WARRANTIES. EXPRESS OR IMPLIED, WITH RESPECT
TO THE PRODUCT(S), INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE. TITLE, NON-INFRINGEMENT, NON-INTERFERENCE
WITH ENJOYMENT AND ALL OTHER WARRANTIES ARISING OUT OF OR IN CONNECTION WITH
THE SALE, LICENSE AND/OR PURCHASE OF THE PRODUCT(S), OR THE USE, REPAIR OR
PERFORMANCE THEREOF, OR ANY COURSE OF DEALING OR COURSE OF PERFORMANCE UNDER
ANY AGREEMENT BETWEEN CUSTOMER AND LIGHTSPACE.


 


This Limited Warranty does not apply to any Product or portion of a
Product which LIGHTSPACE identities as a “Consumable”,


 


11.                               Return Policy. CUSTOMER must obtain a Return Material Authorization (“RMA”)
prior to returning any Product(s) to LIGHTSPACE for any reason. Product(s)”
returned to LIGHTSPACE without an RMA will not be accepted and will be returned
to CUSTOMER at CUSTOMER’s sole risk and expense. CUSTOMER shall be responsible for
the cost of all shipping, handling, and insurance for all Product(s) returned
to LIGHTSPACE. CUSTOMER may return defective Hardware to LIGHTSPACE only
during the Warranty Period: thereafter LIGHTSPACE will use commercially reasonable
efforts to repair Hardware at LIGHTSPACE’s then-current hourly rates.


 


12.          Discontinuance of Product(s).
LIGHTSPACE reserves the right to discontinue or withdraw any Product(s) from
its Catalog at any time. LIGHTSPACE will use commercially reasonable efforts to
provide CUSTOMER with three (3) months prior written notice of any such
discontinuance or withdrawal of Product(s) from Its Catalog. CUSTOMER shall
have the right to make a last-time purchase of such discontinued or withdrawn
Product(s), provided CUSTOMER accepts delivery of all such Product(s) within
three (3) months from the date of LIGHTSPACE’s notice of discontinuance or
withdrawal. With respect to Subscribed Lightsofts that are discontinued. Upon
written request by CUSTOMER, CUSTOMER may be offered the right to obtain a
perpetual license for such discontinued Lightsoft on terms to be mutually
agreed upon in writing by both LIGHTSPACE and CUSTOMER.


 


13.          Term and Termination.
(a) The term of this Agreement shall commence as of the Effective Date and
shall remain in force until terminated by either party In accordance with thi5 Section (“Term”).


 


5

















 


(b)           Either party may terminate
this Agreement on not less than thirty (30) days prior written notice if the
other party (i) is in material breach of any provision of this Agreement
and the party In breach does not cure said breach within such thirty (30) day
period, (ii) files a petition In bankruptcy, or has such petition filed
against if (which petition is not discharged within thirty (30) days after such
filing), (iii) makes an assignment for the benefit of creditors, or if a
receiver, trustee, custodian or similar agent is appointed or takes possession
of its assets, or (iv) generally ceases business in the ordinary course.
LIGHTSPACE shall have the right to terminate any outstanding Order issued under
this Agreement and to refuse any new Order if CUSTOMER commits any breach of
this Agreement and fails to remedy such breach within thirty (30) days after written
notice by LIGHTSPACE of such breach. Continued shipment by LIGHTSPACE following
CUSTOMER’s default shall not constitute any waiver by LIGHTSPACE of Its rights
and remedies under this Agreement nor shall it relieve the CUSTOMER of any its
obligations herein. LIGHTSPACE’s termination of this Agreement and/or
repossession of the Product(s) shall be without prejudice to any other remedies
that LIGHTSPACE may have at law or in equity.


 


(c)           Upon the expiration
or termination of this Agreement for any reason, the license and all other
rights granted hereunder to CUSTOMER shall immediately cease, and CUSTOMER shall
immediately; (i) return the applicable software to LIGHTSPACE together
with all Documentation; (ii) purge all copies of the Software from any
other computar storage medium or device on which CUSTOMER has placed or
permitted others to place the Software; (iii) destroy LIGHTSPACE
Confidential Information in CUSTOMER’s custody, possession or control and
certify in writing to LIGHTSPACE within two (2) weeks that It has complied
with this Section: and pay to LIGHTSPACE all outstanding obligations under the
Agreement or Order. Notwithstanding the foregoing, Sections 1, 3(c), 4, 5, 9, 10,11
and 13-30 shall survive expiration or termination of this Agreement.


 


14.          Confidential Information.
(a) Each party acknowledges that Confidential Information of the other
party may be disclosed during the course of this Agreement. Each Recipient
agrees that it will (i) not disclose the Discloser’s Confidential
Information to anyone except to perform the Recipient’s obligations
hereunder; (ii) take steps that are substantially equivalent to the steps
it taken to protect its own proprietary information (and in any event no less
than reasonable steps), during the Term and following expiration or termination
of this Agreement, to prevent the duplication or disclosure of Discloser’s
Confidential Information, other than to its employees or agents who must have
access to such Confidential Information to perform such party’s
obligations hereunder, who each agree to comply with this provision: and (iii) use
the Confidential Information only for the purposes specifically permitted
hereunder or if not stated herein, solely to perform the Recipient’s
obligations hereunder. Each Recipient shall bear the responsibility for
breaches of this Section by any of Its employees, contractors or agents
irrespective of whether the breach occurs during or after the period of the
employment, agency or contractor relationship. LIGHTSPACE shall have the right
to refer to CUSTOMER as its customer, and may use CUSTOMER as a reference account
without any obligation of confidentiality.


 


(b)           either party may disclose
Confidential Information required to be disclosed by law; provided that It shall
(i) notify the Discloser hereunder promptly upon learning about any court
order or other legal requirement that purports to Compel disclosure of any
Confidential Information: and (ii) cooperate with the Discloser (at
Discloser’s expense) In the exercise of the Discloser’s right to protect the
confidentiality of the Confidential Information before any tribunal or
governmental agency. Disclosure of Confidential Information pursuant to a court
order or other legal requirement that purports to compel disclosure of any
Confidential Information shall not constitute publication or otherwise alter
the character of that Information as Confidential Information as between the
parties hereunder.


 


(c)           The parties agree
that any breach or threatened breach of this Section by a Recipient would
cause not only financial harm, but irreparable harm to the Discloser; and that
money damages will not provide an adequate remedy. In the event of a breach or
threatened breach of this Section by a Recipient, the Discloser shall, in
addition to any other rights and remedies it may have, be entitled
(without the necessity of posting any bond or surety) to an injunction
restraining the Recipient from disclosing or using, in whole or in part, any
Confidential Information.


 


15.                               Limitation of Liability. EXCEPT FOR WITH RESPECT TO THIRD PARTY CLAIMS UNDER SECTION 16,
MISUSE OF LIGHTSPACE’S INTELLECTUAL PROPERTY AND BREACH OF THE CONFIDENTIALITY
OBLIGATIONS UNDER SECTION 14, NEITHER PARTY SHALL BE LIABLE FOR LOSS OF
PROFITS OR SAVINGS OR LOSS OF BUSINESS, INCLUDING BUT NOT LIMITED TO SPECIAL OR
CONSEQUENTIAL DAMAGES, WHICH MAY BE CAUSED BY, DIRECTLY OR INDIRECTLY, THE
INADEQUACY OF THE PRODUCT(S) FOR ANY PURPOSE OR USE THEREOF OR BY ANY DEFECT OR
DEFICIENCY THEREIN, EVEN IF SUCH PARTY HAS BEEN ADVISED, KNEW, OR SHOULD HAVE
KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR WITH RESPECT TO THIRD
PARTY CLAIMS UNDER SECTION 16, MISUSE OF LIGHTSPACE’S INTELLECTUAL
PROPERTY AND BREACH OF THE CONFIDENTIALITY OBLIGATIONS UNDER SECTION 14,
EACH PARTY’S LIABILITY FOR DAMAGES, IF ANY, SHALL NOT EXCEED THE AMOUNTS PAID
TO LIGHTSPACE BY CUSTOMER FOR THE PRODUCT(S) UNDER THIS AGREEMENT. NO ACTION, REGARDLESS
OF FORM, ARISING OUT OF


 


6

















 


ANY TRANSACTION UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE
THAN ONE YEAR AFTER THE INJURED PARTY HAS KNOWLEDGE OF THE OCCURRENCE WHICH
GIVES RISE TO THE CAUSE OF SUCH ACTION.


 


16.                               Indemnity. (a) By LIGHTSPACE. LIGHTSPACE will defend,
indemnify and hold harmless CUSTOMER, its subsidiaries, parent corporations,
affiliates, officers, directors, independent contractors, partners,
shareholders, employees, agents, successors and assigns from and against a
claim, suit, demand, loss, damage, expense (including reasonable attorney’s
fees) or liability asserted by a third party (collectively, “Losses”) arising from or related to any
third party claim that the Product(s) infringes a valid United States patent,
trademark or copyright. LIGHTSPACE shall have no liability or obligation to
CUSTOMER under this Section 16(a) with respect to any claim in the
event and to the extent based upon: (i) use of the Product in an
application or environment or on a platform or with devices for which the
Product was not designed or contemplated (it being expressly agreed that the
Software is intended to operate on the Hardware), (ii) modifications,
alterations, combinations or enhancements of the Product not created by LIGHTSPACE,
(iii) any patent, trademark or copyright in which CUSTOMER or any
affiliate has an interest, or (iv) failure of CUSTOMER to install any
corrections or Maintenance Releases of the Product made available by LIGHTSPACE.
CUSTOMER shall indemnify and hold LIGHTSPACE harmless from all costs, damages
and expenses (including reasonable attorneys’ fees) arising from any claim
enumerated in clauses (i) through (iv) above.


 


In addition, LIGHTSPACE, at LIGHTSPACE’s option and expense, may (i) procure
for CUSTOMER the right to continue using such Product, (ii) replace or
modify the Product so it becomes non-infringing, or (iii) if options (i)-(ii) are
not available, terminate CUSTOMER’s license to the allegedly infringing Product
and pay to CUSTOMER an amount not to exceed the value of the Product for which
CUSTOMER has paid a fee, depreciated on a straight-line basis over a three (3) year
period.


 


(b)                                 By CUSTOMER. CUSTOMER shall defend,
indemnify and hold LIGHTSPACE, its subsidiaries, parent corporations,
affiliates, officers, directors, independent contractors, partners,
shareholders, employees, agents, successors and assigns harmless against any
losses to the arising from (1) CUSTOMER’s or its Participants’: (i) use
of the Product(s), including without limitation the posting or display of any
Objectionable material in connection with the Product(s); (ii) negligence
or intentional misconduct; or, (iii) failure to comply with applicable
laws; and (2) damage to or destruction of property of other persons or the
death or injury of third persons, including but not limited to employees or
invitees of LIGHTSPACE or CUSTOMER which damage, destruction, death or injury
results from or is caused by any act or omission of CUSTOMER, its employees,
servants, agents, or representatives.


 


(c)                                  Procedure. To receive the benefit of
indemnification under Sections 16(a) or 16(b), the party seeking indemnification
must promptly notify the indemnifying party in writing of a claim or suit and
provide reasonable cooperation (at the indemnifying party’s expense) and tender
to the indemnifying party (and its insurer) full authority to defend or settle
the claim or suit. Neither party has any obligation to indemnify the other
party in connection with any settlement made without the indemnifying party’s
written consent. The indemnitee has the right to participate at its own expense
in the claim or suit and in selecting counsel therefor.


 


17.                               Notices: All notices relating to this Agreement shall be in
writing and delivered by courier or by hand or sent to the other party by first
class certified prepaid mail or by common carrier with the ability to
track and confirm delivery and shall be sent to the following addresses:


 


	
  To LlGHTSPACE: 

  	
   

  	
  To CUSTOMER: 

  
	
  Lightspace Corporation

  125 CambridgePark Drive

  Cambridge, MA 2140

  Attn: CEO

  	
   

  	
  Christopher A. Praizner 

  1261 W. 6th Street 

  Cleveland, OH 44113

  



 


Notices shall be deemed to have been duly given (i) upon personal
delivery, (ii) upon deposit in the mail if mailed by certified mail,
return receipt requested, postage prepaid, (iii) upon deposit with a
recognized courier with next-day delivery instructions, or (iv) upon confirmation
of transmission, if sent by confirmed fax, to the address or fax number set
forth below or such other address or fax number as either party may specify
by notice sent in accordance with this Section 17.


 


18.                               Force Majeure. Except for CUSTOMER’s payment obligations to LIGHTSPACE,
neither party shall be responsible for failure to fulfill its obligations under
this Agreement due to causes beyond its reasonable control including, but not
limited to, accidents, labor disputes, military conflicts, acts of government,
acts of terrorism, insurrections, riots, explosions, lightning, earthquakes,
fires, storms and floods. No default shall be caused by and LIGHTSPACE shall
not be responsible to CUSTOMER for any loss, damages, or penalty resulting from
any delay or failure to perform the obligations of LIGHTSPACE herein that
are due to any cause beyond LIGHTSPACE’s control. Anticipated delivery dates by
LIGHTSPACE shall be deemed extended for a period of time equal to the time lost
due to any such delay excusable under this Section.


 


19.                               Governing Law and Severability. The validity, construction and
performance of this Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts without reference to choice
of law principles. If any term or provision of this Agreement or the
application of any such provision of this Agreement shall be held by a tribunal
of competent


 


7

















 


jurisdiction to be contrary to law, invalid or unenforceable, the
remaining provisions of this Agreement shall remain in full force and effect.
The United Nations Convention on Contracts for the International Sale of Goods
shall not apply to this Agreement.


 


20.                               Resolution of Disputes; Waiver of Jury Trial; Exclusive Remedies. In the
event of any claim or dispute between the parties hereto with respect to the
interpretation or application of this Agreement that cannot be reasonably
resolved by a meeting of the principal representative of the parties, such
dispute shall be settled by arbitration before three arbitrators (selected from
a panel of persons having experience with and knowledge of the subject matter
of this Agreement, at least one of whom shall be an attorney) in Boston,
Massachusetts and administered by the American Arbitration Association in
accordance with its Commercial Arbitration Rules. Any provisional or equitable
remedy which would be available from a court of law shall be available from the
arbitrators to the parties in such proceeding. Judgment upon the award of the
arbitrators may be enforced in any court having jurisdiction thereof. The
parties hereby consent to: (i) the jurisdiction of the federal or state
courts sitting or located in Boston, Massachusetts for any action: (a) to
compel arbitration, (b) to enforce the award of the arbitrators, (c) prior
to the appointment and confirmation of the arbitrators, for temporary, Interim
or provisional equitable remedies; or (d) arising from or related to a breach
of confidentiality or misuse of LIGHTSPACE intellectual property; and (ii) service
of process In any such action by registered mail, return receipt requested, or
by any other means provided by law. EACH PARTY AND HEREBY VOLUNTARILY WAIVE.S
ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN.


 


21.                               Injunctive Relief:  CUSTOMER agrees
that any breach of this Agreement Will cause LIGHTSPACE irreparable harm and
that the damage will be difficult to determine and that money damages alone
will not be an adequate remedy. Therefore, LIGHTSPACE shall have the right to
seek injunctive relief against any breach or threatened breach of this
Agreement.


 


22.                               U.S. Government Restricted Rights. If the Product(s) are acquired by or on
behalf of a unit or agency of the United States Government (the “Government”),
the Government agrees that such Product(s) Include “commercial computer
software” and “commercial computer software documentation”, and that absent a
written agreement to the contrary, the Government’s rights with respect to such
Product(s) are, In the case of civilian agency use, RESTRICTED RIGHTS, as
defined in FAR §52.227-19, and if for the Department of Defense use, limited by
the terms .of this Agreement, pursuant to DFARS §227.7202-1 through §227.1202-4
as applicable. The use of the Product(s) by the Government constitutes
acknowledgment .of LIGHTSPACE’s proprietary rights In the Product(s).                                                Contractor/manufacturer
is LIGHTSPACE. LIGHTSPACE’s address is set forth at the end of this Agreement.


 


23.                               Modification, Amendment, Supplement or Waiver. No
modification, amendment, supplement or waiver of this Agreement, or any to Its
provisions; shall be binding upon the parties hereto unless made in writing and
duly signed by both parties. Any waiver of a provision of this Agreement, or of
a breach or default under this Agreement, shall apply only in the specific instance
and purpose given, and shall not constitute a waiver of any other default. Any
failure or delay by either party to enforce compliance with any term or
condition of .this Agreement shall not constitute a waiver of such term or
condition.


 


24.                               Entire Agreement. This Agreement, Including all attachments, schedules and
exhibits hereto, constitutes the entire agreement between the parties in connection
with the subject matter hereof and supersede all prior and contemporaneous
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties, and there are no warranties, representations and/or
agreements among the parties in conjunction with the subject matter hereof
except as specifically set forth or referred to herein. All attachments,
schedules and exhibits hereto are expressly incorporated by reference, and
subject to, this Agreement, and In the event of any conflict between the terms
and provisions of this Agreement and the terms and provisions of any such exhibit,
schedule or attachment, or any Order or other Invoice or any written
acceptance thereof, then the terms and provisions this Agreement shall govern.


 


25.                               Assignment Successors. The rights and licenses granted CUSTOMER hereunder are
restricted solely and exclusively to CUSTOMER. CUSTOMER shall not assign,
transfer or sublicense this Agreement or any of Its rights or delegate the
performance of any of CUSTOMER’s obligations under this Agreement without the
prior written consent of LIGHTSPACE. Any such assignment, transfer, sublicense
or delegation without LIGHTSPACE’s prior written consent shall be void. All the
terms and conditions of this Agreement are binding upon and inure to the
benefit of the parties hereto, and their successors and assigns and legal
representatives.


 


26.                               Relationship of Parties. Both parties will, in all matters relating to this
Agreement, act as Independent entities. Neither party will take any action that
assumes or creates, or represent that it has any authority to assume or create,
any obligation, order, agreement, contract, or other binding commitment,
express or implied, on behalf of the other party, or represent the other as
agent, representative. employee or in any other capacity.


 


27.                               Attorneys’ Fees. In any action, suit or proceedings brought hereunder,
the successful or prevailing party shall be entitled to recover its reasonable
attorneys’ fees and other costs incurred in connection with the action, suit or


 


8

















 


proceeding, in any addition to any other relief to which such party may be
entitled.


 


28.                               Miscellaneous. Nothing in this Agreement, express or Implied, shall,
Is Intended to, or shall be construed to, confer upon or to give any person,
firm or corporation, except the parties hereto, any rights or remedies under or
by reason of this Agreement. The language used in this Agreement shall be
deemed to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction shall be applied against any party.
This Agreement may be executed in multiple counterparts, each of which
shall be deemed to be an original, and all such counterparts shall constitute
one and the same instrument.


 


IN WITNESS WHEREOF, THE PARTIES HERETO HAVE CAUSED THIS AGREEMENT,
INCLUSIVE OF ALL EXHIBITS, TO BE EXECUTED BY THEIR DULY AUTHORIZED
REPRESENTATIVES.


 


 


	
  LIGHTSPACE CORPORATION

  
	
   

  
	
  Signature:

  	
   

  	
   

  
	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  
	
   

  
	
  CUSTOMER

  
	
   

  
	
  Signature:

  	
   

  	
   

  
	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  
	
  Title:

  	
   

  	
   

  
							



 


9

















 


EXHIBIT A


LIGHTSPACE CORPORATION


 


SUPPORT POLICY


 


LIGHTSPACE offers support for the Software upon the following terms and
conditions at Fees published by LIGHTSPACE from time to time. Current price
information is available from LIGHTSPACE. If CUSTOMER elects to obtain support
services from LIGHTSPACE, CUSTOMER must indicate same in the applicable Order
and submit the completed Order to LIGHTSPACE. Capitalized terms used herein and
not otherwise defined shall have the meanings assigned thereto in the LIGHTSPACE
End User Agreement (“Agreement”).
This Support Policy applies only to Software during the applicable support term
and the applicable Use Period as specified in the applicable Order (“Support Term”).


 


1.                                      LIGHTSPACE’S OBLIGATIONS. Subject to the terms of the Agreement
and this Support Policy, LIGHTS PACE shall provide the following maintenance
and support services (the “Support Services”)
for the Software during the Support Term:


 


(a)                                 Telephone and Email Support. LIGHTSPACE will use
commercially reasonable efforts to provide reasonable telephone and e-mail
support for the Software during the hours of 9:00 a.m. to 5:00 p.m.
U.S. Eastern Standard Time, on LIGHTSPACE’s regular business days and such
other assistance as is commercially reasonable to cause the Software to perform in
accordance with the Applicable Specifications, as amended by LIGHTSPACE from
time to time. LlGHTSPACE will use commercially reasonable efforts to respond to
a request for Support Services within twenty-four (24) hours. LIGHTSPACE is
under no obligation to provide Support Services: (i) if CUSTOMER fails to
notify LIGHTSPACE in writing of its intention to purchase Support Services, (ii) if
CUSTOMER fails to pay for the Support Services within thirty (30) days of the
beginning of each Support Term, (iii) if the Product(s) have been subject
to alteration, misuse, neglect, accident or modifications or which are not
capable of being tested by LIGHTSPACE under its normal test conditions; or (iv) if
the Product(s) have been combined, operated or used with equipment, data, or software
not furnished by LIGHTSPACE.


 


(b)                                 Software Maintenance. CUSTOMER may purchase
Software Maintenance, on an annual basis, in accordance with an Order. “Software Maintenance” means LIGHTSPACE
shall provide Maintenance Releases to the Software, provided that LIGHTSPACE
shall not be obligated to create, develop or release any Maintenance Releases.
At LIGHTSPACE’s election, Maintenance Releases may be delivered to
CUSTOMER electronically over an internet connection to CUSTOMER’s Hardware or
by CD-Rom or other similar permanent electronic media delivered to CUSTOMER’s
address set forth in the Agreement. CUSTOMER is responsible for installing
Maintenance Releases provided by LIGHTSPACE in accordance with any installation
instructions that may accompany them within a reasonable amount of time.
Software Maintenance does not provide CUSTOMER with access to new or different
Product(s) which may use all or part of the Hardware and Software and
CUSTOMER has no rights with respect to any such new or different software programs
or hardware platforms. LIGHTSPACE is under no obligation to offer or provide
Software Maintenance: (i) if CUSTOMER fails to notify LIGHTSPACE in
writing of its intention to purchase Software Maintenance, (ii) if CUSTOMER
fails to pay for the Software Maintenance within thirty (30)days of the
beginning of each Support Term, (iii) if the Software has been subject to
alteration, misuse, neglect, accident or modifications or which are not capable
of being tested by LIGHTSPACE under its normal test conditions; or (iv) if
the Software has been combined, operated or used with equipment, data, or
software not furnished by LIGHTSPACE.


 


(c)                                  LIGHTSPACE
will not be required to provide Support Services directly to CUSTOMER’s
Participants, customers and/or end users. CUSTOMER shall be responsible for
addressing all inquiries from its Participants, and for providing all support
to its Participants with respect to the Subscribed Lightsofts, including
resolving any problems related to the use of the Subscribed Lightsofts by such
Participants.


 


2.                                      CUSTOMER’S OBLIGATIONS. CUSTOMER agrees: (a) that the
contact persons identified on the Order (or such other replacement individuals
as CUSTOMER may designate in writing to LIGHTSPACE) shall be the sole
contacts for the coordination and receipt of the Support Services set forth in Section 1
of this Support Policy; (b) to maintain for Support Term, an internet
address for electronic mail communications with LIGHTSPACE; (c) to provide
reasonable supporting data (including written descriptions of problems, as
requested by LIGHTSPACE) and to aid in the identification of reported problems;
(d) to install and treat all Maintenance Releases delivered under this
Support Policy as Software in accordance with the terms of the Agreement; and (e) to
maintain the Agreement in force and effect.


 


3.                                      TERM AND TERMINATION. (a) Support Term. Support
Services for Product(s) will begin on the date set forth in the applicable
Order, and will apply to such Product(s) for a term of one (1) year,
unless an alternative term is identified in the Order. The initial term will be
extended for additional terms as set forth in the Order.


 


(b)                                 Default.
If CUSTOMER is in default of its obligations under the Agreement (except for
CUSTOMER’s obligation to maintain valid licenses for the Software, in which
case termination is immediate) and such default continues for thirty (30) days
following receipt of written notice from LIGHTSPACE, LIGHTSPACE may, in


 


10

















 


addition to any other remedies it may have, terminate the
Services.


 


4.                                      SUPPORT FEES. CUSTOMER shall pay to LIGHTSPACE the Fees for
Support Services identified in the Order. Invoices for Services shall be billed
to the CUSTOMER on an annual basis and payment is due in advance of the period
covered by the Support Services. CUSTOMER shall not be entitled to any refund
or rebate if CUSTOMER elects to terminate the Support Services prior to end of
the applicable Support Term.


 


5.                                      WARRANTY; WARRANTY LIMITATION. (a) LIGHTSPACE warrants
that all Support Services to be performed hereunder will be performed in a
workmanlike manner, conforming to professional standards and practices.
CUSTOMER’s sole and exclusive remedy for any claim arising out of a breach of
this warranty shall be, at the LIGHTSPACE’s option, for LIGHTSPACE to reperform the
Support Services as warranted.


 


(b)                                 EXCEPT
AS OTHERWISE SET FORTH HEREIN, LIGHTSPACE DISCLAIMS ALL WARRANTIES INCLUDING
WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE AS WELL AS ALL WARRANTIES ARISING OUT OF USAGE
O’F TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, WITH RESPECT TO SUPPORT
SERVICES PROVIDED UNDER THIS SUPPORT POLICY (INCLUDING THE FIXING OF ERRORS
THAT MAY BE CONTAINED IN THE PRODUCT). IN NO EVENT SHALL LIGHTSPACE BE
LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR ANY
INTERRUPTION OF BUSINESS OR LOSS OF USE, DATA OR PROFITS, HOWEVER CAUSED, AND
REGARDLESS OF THE FORM OF ACTION, EVEN IF LIGHTSPACE HAS BEEN ADVISED,
KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. LIGHTSPACE’S
TOTAL LIABILITY UNDER THIS SUPPORT POLICY SHALL NOT EXCEED THE AMOUNTS PAID TO
LIGHTSPACE IN RESPECT OF THE SPECIFIC SUPPORT SERVICES CAUSING THE CLAIM.


 


6.                                      GENERAL PROVISIONS. Upon the election by CUSTOMER to obtain
Support Services, the terms of this Support Policy shall be governed by and are
made a part of the Agreement. This Support Policy and the Agreement are
the complete and exclusive statement of the agreement between the parties
relating to the subject matter of this Support Policy and supersedes all prior
oral or written communications, purchase orders, agreements and understandings
between the parties.


 


11