WATERFALL MASTER SERVICE AND SOFTWARELICENSE AGREEMENT

Exhibit 10.1 

WATERFALL MASTER SERVICE AND SOFTWARE LICENSE AGREEMENT

This Master Service and Software License Agreement is entered into, effective as of the later date of signature below (the “Effective Date”), by Waterfall International Inc., a Delaware corporation with a principal address at 25 Division Street, Suite 205, San Francisco, California 94103 U.S.A. (“Waterfall”), and Archer USA Inc., a Delaware corporation with a principal address at 2025 1st Ave, Suite 320, Seattle, WA 98121 (“Company”). Waterfall and Company may be referred to herein individually as a “Party” and collectively as the “Parties.” This Master Service Agreement, collectively with (a) all Order Forms agreed by the Parties online or in writing and (b) any other materials specifically incorporated by reference herein, is referred to herein as the “Agreement.”

BACKGROUND

Waterfall and Company have entered into an Asset Purchase Agreement dated [__________], 2014 (the “Purchase Agreement”) pursuant to which Company has sold to Waterfall, and Waterfall has acquired all right, title, and interest in, certain assets for Company’s mobile marketing technology and service provider business, as further described in the Purchase Agreement (the “Marketing Services Business”). Included among the assets sold to Waterfall pursuant to the Purchase Agreement was the intellectual property generally described as the “mFinity Platform” (sometimes referred to as mBlade), an SMS messaging platform, consisting of user interfaces, a messaging engine and APIs. Company wishes to acquire a license to use the mFinity Platform Software (defined in Exhibit A) to provide certain mobile messaging solutions and support services to its Healthcare Customers and Partners (defined in Exhibit A) of Company’s Healthcare Business (defined in Exhibit A).

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to these terms and conditions through their undersigned authorized representatives:

In connection with Company’s Healthcare Business, the Parties enter into this Agreement (including its exhibits) to specify the terms on which Waterfall licenses to Company (i) use of the Waterfall Service for Company’s Healthcare Business, and (ii) use of a duplicate copy of the mFinity Platform Software that will be delivered and hosted in accordance with the terms set forth in Exhibit B to this Agreement.

Capitalized terms in this Agreement have the meaning stated in Exhibit A or elsewhere in this Agreement.

Waterfall will make the Service available to Company in accordance with this Agreement and the relevant Order Forms during the applicable License Term. Company agrees that Company’s purchases under this Agreement are not contingent on the delivery of any future results, functionality or features, and are not dependent on any oral, written or implied representations, statements or commitments made by or for Waterfall (for example, regarding any future results, functionality or features). Please see www.waterfall.com for additional information regarding the Waterfall Service, e.g., pricing tiers and feature differences.

4.1 Term. The Term of this Agreement commences on the Effective Date. The Initial Term will be twelve (12) months. Upon expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at Waterfall's then-current rates for its Service, unless either party provides notice to the other party of its intent not to renew the Agreement at least thirty (30) days prior to the end of the then-current term. The Initial Term is referred to herein collectively with all such renewal terms as the “Term.”

Waterfall, in its sole discretion, may suspend Company’s account and use of the Service, and/or terminate this Agreement immediately if Company fails to comply with this Agreement (or an Order Form) in any material respect. Company may terminate this Agreement (and all Order Forms hereunder) if Waterfall fails to perform its obligations under this Agreement (or an Order Form) in any material respect, and Waterfall fails to cure such breach within sixty (60) days after receipt of reasonably detailed written notice of such breach from Company.

4.3 Effect of Termination. In the event of any termination or expiration of this Agreement, those parts of this Agreement which by their nature and all relevant circumstances reasonably should survive will survive (including, without limitation, the definitions, this Effect of Termination provision, the Fees and Payment provisions, the Ownership provisions, the License Restrictions provisions, the Disclaimer of Warranties provisions, the Indemnification provisions, the Limitation of Liability provisions, the Confidentiality provisions, the Assignment provisions, and the General Terms). For the avoidance of doubt, the license granted in paragraph D of Exhibit B, will survive any expiration or termination of this Agreement, except in the case of termination of this Agreement by Waterfall for Company’s uncured material breach of such license, including any related restrictions on use of the Company-Version of the mFinity Platform. If Waterfall terminates this Agreement for convenience (i.e., without cause), and Company sends a written request to Waterfall before the termination effective date, Waterfall will make available to Company a file of Company’s End User Data and Company Data within thirty (30) days after the termination effective date.

Subject to the preceding sentence, Company agrees and acknowledges that Waterfall has no obligation to retain or provide any End User Data or Company Data, and may delete such End User Data or Company Data, at any time (a) if Company violates this Agreement (including, but not limited to, any failure to pay outstanding fees), or (b) after the termination effective date.

5.1 Fees. Company will pay all fees or charges to Company’s account in accordance with Company’s applicable Order Form(s). These include, but are not limited to, monthly service fees, messaging fees, voice call fees, short code fees, account fees, keyword fees, transaction fees, technical support fees and client services fees. Waterfall reserves the right to modify its fees and charges, and to introduce new charges, at any time upon at least 30 days prior notice to Company, which notice may be provided by email. Company also agrees to pay (or reimburse Waterfall if Waterfall is required to pay directly) for any and all fees in connection with the registration, provisioning, certification and use of Company’s short code(s) including but not limited to content distribution fees, message transaction fees, and any surcharges, fines or penalties imposed by a wireless carrier or Authorized Distributor. All payment obligations are non-cancelable and all amounts paid are non-refundable. Company is responsible for paying for all services Company orders for the entire License Term, whether or not such services are actually used, irrespective of whether a purchase order is issued.

Your authorized License Administrator may order additional Service licenses and features by executing an additional written Order Form or using the Online Order Center. Such additions are subject to the following: (i) the license for such additions will be coterminous with the preexisting License Term (either Initial Term or renewal term); (ii) the fees and charges for such additions will be Waterfall’s then-current, generally applicable fees and charges; and (iii) additions in the middle of a billing month will be charged for a pro-rata portion of that billing month.

All pricing terms are Waterfall’s confidential information and Company agrees to treat them in accordance with the confidentiality provisions below.

5.2 Payment. Waterfall charges and collects in advance for use of its Service. Waterfall will automatically issue an invoice to Company each month, quarter or year as applicable, in accordance with the terms of Company’s Order Form(s), or as otherwise mutually agreed. Fees for other services will be charged on an as-quoted basis. Payments must be made monthly, quarterly or annually in advance, per the terms mutually agreed in an Order Form or through the Online Order Center. Waterfall's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Company will be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Waterfall's income. Company agrees to provide Waterfall with complete and accurate billing and contact information. This information includes Company’s legal company name, street address, email address, and name and telephone number of an authorized billing contact and License Administrator. Company will update this information within 30 days of any change to it. If the contact information Company has provided is false or fraudulent, Waterfall reserves the right to terminate Company’s access to the Service, in addition to any other legal remedies. Unless Waterfall in its discretion determines otherwise, Company will be billed in U.S. dollars and subject to U.S. payment terms and pricing schemes. If Company believe Company’s bill is incorrect, Company must contact Waterfall in writing within 30 days of the relevant invoice date to be eligible to receive an adjustment or credit.

5.3 Consequences of Non-Payment. In addition to any other rights Waterfall may have, Waterfall reserves the right to suspend or terminate this Agreement and Company’s access to the Service if Company’s account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to a service fee of one and one-half percent (1.5%) per month, or the maximum penalty permitted by law (whichever is less), on any outstanding balance, plus all expenses of collection. Waterfall will continue to charge Company for the Service during any period of suspension. If Company or Waterfall terminates this Agreement in accordance with Section 4.2, Company will be obligated to pay the balance due on Company’s account computed in accordance with the Fees and Payment section of this Agreement. Company agrees Waterfall may bill Company for such unpaid fees. Waterfall reserves the right to impose a reconnection fee if Company is suspended and thereafter requests access to the Service.

6.1 General. Waterfall may determine, in its reasonable discretion, whether Company is violating the Acceptable Use policies set forth in this Section 6. Using the Service in an abusive manner or any other manner that diminishes or interferes with anyone else’s use or enjoyment of the Service is prohibited. Company also may not use the Service for any illegal activities or purposes, intentionally or unintentionally. Company is responsible for all activity occurring under Company’s User accounts, and Company agrees to abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Company’s use of the Service. Company must: (i) notify Waterfall immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Waterfall immediately and use reasonable efforts to stop immediately any inappropriate copying or distribution of Content that is known or suspected by Company or Company’s Users; and (iii) not impersonate another Website user or provide false identity information to gain access to or use any of the Service or Content.

6.2 Short Codes, Use of Keywords, Provisioning / Carrier Certification. Certain tiers of the Service allow Company to use Waterfall’s shared short code(s), in Waterfall’s discretion. Use of the Service with a shared short code requires a unique keyword per campaign. Company agrees not to reserve keywords and attempt to sell such keywords to a third party, except with Waterfall's prior written consent. Any such behavior will be grounds for immediate termination of this Agreement and Company’s account. Further, Waterfall will have the right, at any time, to reclaim keywords that Company has reserved but is not actively using. Company also must not reserve or use any keywords that are a trademark, service mark or corporate name of another company (whether registered or recognized under applicable common law). The Service allows Company to use Company’s own short code. Waterfall can lease a short code on Company’s behalf, or Company can lease Company’s own short code at www.usshortcodes.com. Company is responsible for reimbursing Waterfall fully and promptly for any payments made to reserve Company’s own short code(s). Waterfall will help Company get Company’s short code(s) provisioned by the wireless carriers, and Waterfall will help Company obtain all required certifications and authorizations. Waterfall will use commercially reasonable efforts to provision Company’s short code(s) but cannot guarantee if or when Company’s short codes(s) will be provisioned or certified by the wireless carriers. Company may not use any phone number or short code provided by Waterfall to route SMS messages over any other provider's network. All SMS messages sent and received for a phone number or short code provided by Waterfall must be sent and received exclusively via Waterfall’s Service.

6.3 Prohibited Conduct. The following are some other examples of conduct using the Service that are prohibited (this list is not exhaustive):

7.1 Ownership. Waterfall alone (and its licensors, where applicable) own all right, title and interest (including all related Intellectual Property Rights) in and to the Waterfall Technology, mFinity Platform Software, the Waterfall Content and the Service, as well as any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Company or any other party relating to the Waterfall Technology or Service (collectively, “Feedback”). If Company chooses to provide any Feedback to Waterfall, Waterfall will own all right, title, and interest in and to it, even if Company has designated it as confidential, and Waterfall will have the right to use such Feedback without restriction. Similarly, any other information or content Company post or provide to Waterfall through comments, forums, emails or other communications (collectively, "Communications") will be deemed the property of Waterfall. Company hereby irrevocably assigns all right, title and interest in and to the Feedback and Communications to Waterfall, and agrees to provide Waterfall any assistance Waterfall may require to perfect and maintain our rights in the Feedback and Communications. This Agreement is not a sale and do not convey to Company any rights of ownership in or related to the Service, the Waterfall Technology, the mFinity Platform Software, or any Intellectual Property Rights owned by Waterfall. Unless otherwise noted, the graphic images, text and other material on the Waterfall website are the exclusive property of Waterfall and are Copyright © Waterfall International Inc. All rights reserved. The Waterfall and Waterfall Mobile names and logo, and the product and service names and logos associated with the Service are trademarks or registered trademarks of Waterfall in the United States and foreign countries; Company has no right or license to use any of them without Waterfall’s express prior authorization. All uses of the Waterfall trademarks, and all goodwill associated therewith, will inure to the benefit of Waterfall. Other company, product, and service names mentioned on the Waterfall website or in the course of providing the Service may be trademarks and/or service marks of others. Company must not remove, obscure, or alter any notice of any trademark, service mark or other intellectual property or proprietary right appearing on the Waterfall website or contained within the Service.

7.2 License Grants and Restrictions.

7.3 Data. As between Waterfall and Company, Company will own all End User Data and other Company Data. However, Waterfall also collects aggregate data that is not personally-identifiable, including, without limitation, end user usage and behavioral data as they relate to the Service (the "Aggregate Data") Company acknowledges and agrees that Waterfall will be the sole and exclusive owner of such Aggregate Data. Company, not Waterfall, has sole responsibility for ensuring the accuracy, quality, integrity, legality, security, reliability, appropriateness, and intellectual property ownership or right to use all End User Data and other Company Data. Waterfall will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Company Data. Notwithstanding the above, Waterfall may remove any Company Data from the Service that violates any guidelines or policies set forth by (i) a wireless carrier, (ii) the Mobile Marketing Association, (iii) the CTIA, (iv) mobile device manufacturers, (v) any Authorized Distributor, or (vi) Waterfall.

8.1 Standard Support. Unless Waterfall and Company have entered into a separate written agreement for technical support services for the Service, Waterfall will provide only the following basic support to Company (limited to the Term):

8.2 Additional Support. If Company enters into a separate written agreement with Waterfall for additional technical support services for the Service, then Waterfall will provide such support in return for timely payment of the applicable fees in accordance with that separate agreement.

8.3 Professional Services. Subject to the terms and conditions of this Agreement, Waterfall may provide to Company other professional services in accordance with the applicable Order Form(s) mutually agreed by the Parties. Company will reimburse Waterfall’s reasonable travel and incidental expenses (e.g., airfare, lodging, meals, taxis, rental cars, parking and WiFi access) incurred in connection with providing such services, if any.

Waterfall's privacy policy is located at http://www.waterfall.com/legal and is hereby incorporated into this Agreement by reference. Waterfall reserves the right to modify our privacy policy from time to time. Company may be asked whether or not Company wishes to receive marketing and other non-critical communications relating to the Service from time to time. Company may opt-out of receiving such communications at that time, or at any subsequent time, by clicking a link at the bottom of any email. Note that because the Service is hosted and online, Waterfall occasionally may need to notify all users (whether or not they have opted-out as described above) of important announcements regarding the Service. Company also agrees Waterfall may use Company’s name and logo solely to list Company as a customer in our marketing and promotional materials (e.g., on the Waterfall website).

While using the Service, Company may enter into correspondence with, purchase goods and/or services from, or participate in promotions of, advertisers, sponsors or other third parties showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, are solely between Company and the relevant third parties. Waterfall does not endorse, recommend or sponsor any products, services or websites that are promoted by users or other third parties through the Service. Company also acknowledges and agrees that Waterfall may offer integration of certain Third-Party Applications with the Service, and certain third-party providers of ancillary or related software, hardware or services may require Company’s agreement to additional or different license or other terms prior to Company’s use of or access to such software, hardware or services. If Company installs or enables any Third-Party Applications for use with the Service, Company acknowledge that (a) Waterfall may allow providers of those Third-Party Applications to access Company Data as required for the interoperation of such Third-Party Applications with the Service, and (b) Waterfall will not be responsible for any disclosure, modification, use or deletion of Company Data resulting from any such access by Third-Party Application providers. Features of the Service that interoperate with such Third-Party Applications (e.g., Facebook, Twitter, Apple, etc.) depend on the continuing availability of such Third-Party Application APIs for use with the Service. Waterfall does not guarantee any aspect of a Third-Party Application, including, without limitation, the availability, security or reliability of third-party APIs or data exchanges. If any Third-Party Application provider ceases to make their APIs available, or modifies the way in which their APIs work, Waterfall may cease providing the corresponding Service feature(s) without entitling Company to any refund, credit, or other compensation from Waterfall.

WATERFALL AND ITS LICENSORS HAVE NO LIABILITY, OBLIGATION OR RESPONSIBILITY FOR ANY CORRESPONDENCE, PURCHASE OR PROMOTION BETWEEN COMPANY AND ANY THIRD PARTIES. IN NO EVENT WILL WATERFALL OR ITS LICENSORS BE RESPONSIBLE FOR, OR HAVE ANY LIABILITY IN CONNECTION WITH ANY THIRD PARTY CONTENT, PRODUCTS, SERVICES OR OTHER MATERIALS PROVIDED OR OBTAINED THROUGH ANY THIRD PARTY IN THE COURSE OF USING THE SERVICE.

Each Party represents and warrants that it has the legal power and authority to enter into this Agreement. Company further represents and warrants that Company will not falsely identify itself or provide any false information in the course of gaining access to or using any of the Service.

EXCEPT AS EXPRESSLY STATED IN THE PRECEDING SECTION OF THIS AGREEMENT:

THE SERVICE DOES NOT, AND IS NOT INTENDED TO, SUPPORT OR CARRY EMERGENCY CALLS TO POLICE, FIRE, AMBULANCE OR ANY EMERGENCY SERVICES (FOR EXAMPLE 911 OR E911). ACCORDINGLY, WATERFALL AND ITS OWNERS, EMPLOYEES, AGENTS, AFFILIATES AND LICENSORS EXPRESSLY DISCLAIM ANY WARRANTIES OR LIABILITY (AND COMPANY HEREBY WAIVES ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION) ARISING FROM OR RELATING TO COMPANY’S INABILITY TO USE THE SERVICE TO CONTACT ANY EMERGENCY SERVICES.

Company will defend, indemnify and hold harmless Waterfall, its affiliates and their respective parent organizations, subsidiaries, affiliates, officers, directors, shareholders, employees, attorneys, representatives and agents from and against any and all claims, causes of action, costs, damages, losses, liabilities and expenses (including, without limitation, attorneys' fees, costs and expenses) arising out of or relating to any third party claim based on:

With respect to any such third party claims, Waterfall will: (i) give Company written notice of the claim promptly; (ii) give Company sole control of the defense and settlement of the claim (provided that Company may not, without Waterfall’s prior written consent, settle any claim unless Waterfall is unconditionally released of all liability and such settlement does not adversely affect Waterfall's interests); and (iii) give Company reasonable information, cooperation and assistance in connection with the claim, at Company’s expense.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT WITH RESPECT TO COMPANY’S LIABILITY UNDER SECTION 5 (FEES & PAYMENT), SECTION 6.3 (PROHIBITED CONDUCT), SECTION 7.2(b) (LICENSE RESTRICTIONS), AND SECTION 13 (INDEMNIFICATION):

THE LIMITATIONS OF LIABILITY IN THIS SECTION 14 APPLY TO ALL LIABILITY AND CLAIMS, WHETHER BASED ON CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, WARRANTY OR ANY OTHER LEGAL THEORY, AND REGARDLESS OF ANY ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITY. THESE LIMITATIONS OF LIABILITY ARE A FUNDAMENTAL BASIS OF THE BARGAIN REFLECTED IN THESE TERMS AND THE PRICING OF THE SERVICE, AND BOTH PARTIES UNDERSTAND AND AGREE WATERFALL WOULD NOT PROVIDE THE SERVICE TO COMPANY WITHOUT THESE LIMITATIONS OF LIABILITY.

The Parties presumably may disclose Confidential Information in connection with the Waterfall Service and the Parties’ relationship under this Agreement. Accordingly, the Receiving Party will take commercially reasonable steps to avoid unauthorized disclosure or dissemination of the Disclosing Party’s Confidential Information, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature. All Confidential Information will remain the exclusive property of the Disclosing Party.

The Receiving Party will disclose the Disclosing Party’s Confidential Information only to its employees and contractors who (i) have a legitimate business need to know such Confidential Information for purposes of performing under this Agreement (and only while they have that need), and (ii) are bound by confidentiality agreements with the Receiving Party at least as protective of the Disclosing Party’s Confidential Information as this section of this Agreement (their respective “Personnel”). The Receiving Party will ensure its Personnel comply with this section of this Agreement, will promptly notify the Disclosing Party of any breach, and will be fully responsible for any breach by the Receiving Party’s Personnel.

The above obligations under this Section 15 will apply for two (2) years from the date the relevant Confidential Information is first disclosed to the Receiving Party. Additionally, the Parties each acknowledge and agree that the receipt of Confidential Information in connection with their relationship under this Agreement will not create any obligation in any way limiting or restricting the assignment of employees or contractors. Furthermore, nothing contained in this Agreement will be construed as preventing any employees or contractors of either Party from using any “residuals” of the Confidential Information (i.e., information in non-tangible form that is retained in the unaided memories of employees or contractors who had access to the Confidential Information).

Notwithstanding the foregoing, if any court or other governmental entity with competent jurisdiction requires the Receiving Party to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party may comply with its legal obligations after giving the Disclosing Party prompt, reasonably detailed written notice regarding such required disclosure (including a copy of the relevant order or other legal process) to allow the Disclosing Party to seek a protective order or other appropriate remedy. The Receiving Party will disclose only such information as it reasonably deems is legally required, and will cooperate reasonably with the Disclosing Party to obtain confidential treatment for any of the Disclosing Party’s Confidential Information that is so disclosed. Similarly, the Receiving Party may disclose the Disclosing Party’s Confidential Information on a "need-to-know" basis to its legal counsel, accountants, banks and other financing sources and advisors under commercially reasonable confidentiality agreements.

Upon termination or expiration of this Agreement, or at the request of the Disclosing Party, the Receiving Party will promptly return all tangible material embodying the Disclosing Party’s Confidential Information, and will destroy (or, in the case of electronic embodiments, permanently erase) all other tangible material containing or reflecting such Confidential Information (in any form, including, without limitation, all summaries, copies and excerpts) in its possession or under its control, whether prepared by the Disclosing Party, the Receiving Party, or their respective advisors or otherwise, and will not retain any copies, extracts or other reproductions in whole or in part of such materials.

For the avoidance of doubt, the Parties acknowledge and agree that the Receiving Party may develop products, services, concepts, systems or techniques that are similar to or compete with the products, services, concepts, systems or techniques contemplated by or embodied in the Disclosing Party's Confidential Information, provided that the Receiving Party (a) can document that such development occurred independently without any use of the Disclosing Party’s Confidential Information, (b) does not violate any of its obligations under this Agreement, and (c) does not reverse engineer any of the Disclosing Party's Confidential Information.

This site provides services, and uses software and technology, that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies, as well as the export control regulations of other countries. As a user of this site, Company must not use the Waterfall website or the Service in, or permit the Waterfall website, any Service, any Content, or any underlying information, software or technology, to be transferred, exported, re-exported or otherwise provided to, any countries regarding which the United States, Switzerland or the European Union maintains an embargo (collectively, "Embargoed Countries"). Company also must not transfer, export, re-export or otherwise provide the Waterfall website, any of the Service, any Content, or any underlying information, software or technology, to (a) any nationals or residents of any Embargoed Countries, or (b) any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice, so Company should check those lists frequently to ensure Company comply.

Company represents and warrants that Company and its officers, directors and owners are not, and are not under the control of a Designated National, and are not located in, under the control of, or a national or resident of any Embargoed Country. Company agrees to comply strictly with all U.S., Swiss and European Union export laws, and Company assumes sole responsibility for obtaining any licenses required to export or re-export.

The Waterfall website also may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Waterfall makes no representation that the Waterfall website, the Service or any Content is appropriate or available for use in other locations. If Company use the Waterfall website, Service or Content from outside the United States of America, Switzerland and the European Union, Company is solely responsible for complying with all applicable laws, including, without limitation, export and import regulations of other countries. Any diversion or export of Content or End User Data contrary to the laws of United States, Switzerland or European Union (including European Union Member States) is strictly prohibited. Finally, Company is not permitted to use the Waterfall website, the Service, any Content, or any information acquired through the use of the Waterfall website, the Service or any Content, for any nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or an authorized European governmental body for such purposes.

This Agreement governs Company’s license to use the Waterfall website, Service and Content. No government procurement regulation or contract clauses or provisions will be considered a part of any transaction between the Parties under this Agreement unless its inclusion is required by statute, or mutually agreed upon in writing by the Parties in connection with a specific transaction. The technical data and computer software covered by this license are “Commercial Items,” as that term is defined by the FAR 2.101 (48 C.F.R. 2.101), and are “commercial computer software” and “commercial computer software documentation” as specified under FAR 12.212 (48 C.F.R. 12.212) or DFARS ###-###-#### (48 C.F.R. 227.7202), as applicable. The Waterfall website, the Service and Content are provided to end users for use by and on behalf of the U.S. Government, with only those rights as are granted to all other end users under the terms and conditions in this Agreement. Use for or on behalf of the U.S. Government is permitted only if the individual using the Waterfall website, the Service or Content is properly authorized by an appropriate U.S. Government official. This paragraph of this Agreement is in lieu of, and supersedes, any other FAR, DFARS, or other provision that addresses government rights in computer software or documentation covered by this Agreement. All copyright licenses granted to the U.S. Government are coextensive with the technical data and computer software licenses granted in this Agreement. The U.S. Government will only have the right to reproduce, distribute, perform, display, and prepare derivative works as needed to implement those rights.

Waterfall may provide notices to Company relating to the Service by posting a general notice on the Waterfall website, or by sending email to the email address Company provided in Company’s account information on the Waterfall website, or by written communication sent by first class mail or pre-paid post to the mailing address Company provided in Company’s account information on the Waterfall website. Such notice will be deemed given forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). Company may give notice to Waterfall (such notice will be deemed given when received by Waterfall) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to the attention of Waterfall’s Chief Financial Officer at the following address: Waterfall International Inc., 25 Division Street, Suite 205, San Francisco, CA 94103.

This Agreement may not be assigned or otherwise transferred by Company, including, without limitation, by operation of law in connection with a merger or acquisition, without the prior written approval of Waterfall. Any purported assignment in violation of this section will be void. Waterfall may, however, assign or transfer its rights and obligations under this Agreement, without Company’s consent, to (i) a parent or subsidiary of Waterfall, (ii) an acquirer of Waterfall assets, or (iii) Waterfall’s successor by merger. This Agreement will be binding upon, and inure to the benefit of, the Parties’ respective successors and permitted assigns.

ACCEPTED AND AGREED BY THE PARTIES’ DULY AUTHORIZED REPRESENTATIVES AS OF THE EFFECTIVE DATE:

WATERFALL:

EXHIBIT A

(DEFINITIONS)

This is Exhibit A to the Waterfall Master Service and Software License Agreement between Waterfall and Company (the “Agreement”), forms part of the Agreement, and is subject to the terms and conditions of the Agreement. Any capitalized terms not defined in this Exhibit A have the meaning indicated elsewhere in the Agreement (including its exhibits).

The following definitions apply to the Agreement:

EXHIBIT B

mFinity Platform License

Within ten (10) days of the Closing Date of the Purchase Agreement, Waterfall agrees to create an additional instance of the source code and object code for the mFinity Platform Software described in Section G below, and, if requested by Company, deliver to a hosting service that the Parties mutually agree upon (“Company-Version of mFinity Platform Software”).

Company agrees to pay any hosting, maintenance or servicing fees that the Parties mutually agree upon in connection with the Company-Version of the mFinity Platform Software.

The Parties agree that, unless otherwise agreed by the Parties in writing, Waterfall will not provide to Company any maintenance or support services for the Company-Version of the mFinity Platform Software.

Subject to the terms of this Agreement, Waterfall hereby grants to Company a perpetual royalty-free, worldwide, and non-sublicensable (except to Healthcare Customers and Partners) license and right to use the Company-Version of the mFinity Platform Software solely to the extent required by Company or its permitted assigns to make available the features and functions of the Company-Version of the mFinity Platform Software as a “software-as-a-service” offering in connection with the Healthcare Business. “Use” means, for purposes of the license granted in this Exhibit B, the right to (a) use, copy, execute, display, enhance, modify, update, maintain (directly) and/or adapt the Company-Version of the mFinity Platform Software, (b) create new versions or derivative work of the Company-Version of the mFinity Platform Software, and (c) combine the Company-Version of the mFinity Platform Software with other programs and/or materials.

Except as set forth in this mFinity Platform License, no license (express or implied) under any Intellectual Property Rights of Waterfall is granted to Company. No ownership of the mFinity Platform Software or any Proprietary Rights therein is granted, assigned or otherwise transferred to Company by implication or estoppel. This mFinity Platform License may be sold or assigned to a third party for use in the Healthcare Business; provided, that, without Waterfall’s prior written consent, Company will not to sell, assign, sublicense or otherwise transfer the Company-Version of the mFinity Platform Software or the license granted hereunder to any party whose products or activities compete in whole or in part with the Marketing Services Business.

At Company’s option, Company may obtain Waterfall’s services to maintain, customize, modify and/or enhance the Company-Version of the mFinity Platform Software to develop programs, software and materials related to the Healthcare Business, and/or to provide such other services as the Parties mutually agree upon (“Custom Services”). If applicable, Custom Services shall be specified in a separate amendment to this Agreement.

In the case of any conflict between this Exhibit B (mFininty Platform License) and the remainder of this Agreement, the provisions of this Exhibit B shall control.