LICENSE.txt

Last Updated: February 11, 2009

IMMUNITY, INC.

SOFTWARE LICENSE AGREEMENT

THIS LICENSE AGREEMENT (with the schedules annexed hereto, the "Agreement") is made as of the day when registered on the download server between "Licensee", the user of the software, whether corporate entity or individual, and Immunity, Inc, "Licensor", a New York State based company with primary offices at 1247 Alton Road, Miami Beach FL, 33139. If the Licensee does not agree to the terms described within this document, the Licensee is not authorized to install, copy, or otherwise use the Software.

W I T N E S S E T H:

WHEREAS, Licensor is in the business, among other things, of licensing the proprietary software more particularly described in Schedule "A" attached hereto and made a part hereof, which, together with the object code, registration key, documentation and other materials are collectively referred to herein as the "Software"; and

WHEREAS, Licensor owns or has the license to all of the intellectual and other proprietary rights (including copyrights and trademarks) associated with the Software; and

WHEREAS, Licensee wishes to obtain a license to use the Software for the purpose of facilitating Licensee's business; and

WHEREAS, Licensor is willing to grant a non-exclusive license to Licensee to use the Software pursuant to the terms, conditions, and limitations hereinafter set forth.

NOW, THEREFORE, in consideration of the mutual promises and obligations hereinafter contained, the parties have agreed as follows:

1.    Grant of License, Term

1.1 Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee a limited, non-exclusive, non-transferable, non-assignable right and license (the "License") to access, download, install and use the Software on the licensed number of computers (identified in Schedule "A") solely for the uses as set forth in Section 2 of this Agreement.

1.2 The term of the License granted herein shall be in perpetuity ("Term"), unless otherwise terminated pursuant with this Agreement.

1.3 Licensor shall deliver to Licensee the Software within 5 business days of the Effective Date.

2.    Scope and Use of License

2.1 Licensee agrees that the License granted hereunder is limited to use the Software internally and only in connection with Licensee's business in accordance with the terms of this Agreement.

2.2 Licensee shall not decompile, reverse compile, disassemble, decode or otherwise reverse engineer the Software. Licensee shall not modify or translate the Software or create any derivative works based on the Software. Except as otherwise set forth in this Agreement, Licensee shall not publish, distribute, market, rent, lease, sublicense or assign all or any portion of the Software. Porting the Software to another framework or product is a violation of this license. Using the Software as part of another Product is a violation of this license. 

2.3 Licensor reserves the right to terminate this Agreement if it has reason to believe Licensee is using the Software outside the scope of the License.

2.4 Licensee acknowledges that as between the Licensor and Licensee, Licensor is and shall remain the sole owner of the copyrights, patents, trademarks, and other intellectual and proprietary rights associated with the Software, including without limitation, programs, methods of processing, specific design and programming techniques contained therein and any corrections, fixes, enhancements, updates or other modifications to the Software, whether made by Licensor or any third party, as well as the goodwill associated therewith. Nothing in this Agreement shall be deemed to convey to Licensee any ownership or proprietary rights therein and all such rights shall remain the sole and exclusive property of Licensor. Except as otherwise set forth herein, Licensee shall have no right, title or interest in or to the Software. Any rights not specifically granted herein are reserved to Licensor.

2.5 If Licensee creates, distributes, sells, or otherwise produces a software product used for anti-virus, anti-malware or intrusion detection protection then Licensee will not include signatures for Software files or programs within their product.

2.6 Licensor reserves right to store and redistribute usage and statistical information related to the Software for market research, advertising and other purposes.

3.    Terms of Payment

3.1 In full consideration for the License, Licensee shall pay to Licensor the fee (the "Fee"), in the amounts at the times and under the terms as set forth in Schedule B.

3.2 Licensee on demand shall pay or reimburse Licensor for all duties, sales taxes, other taxes and other charges relating to the Software, the License or payments hereunder imposed by the United States taxing authorities, with the sole exception of taxes on Licensor's income.

4.    Maintenance.

4.1 No maintenance support services are included with this license.

5.     Confidentiality

For purposes of this Agreement, "Confidential Information" includes all trade secrets and confidential information of Licensor including the Software (both source and object code), and documentation, algorithms, development techniques, methodologies, formulae, business plans, research and development strategies, customer and prospect names and lists, work product resulting from or related to the Software, internal personnel, financial, marketing and other business information, and product and service prices, as well as know-how and proprietary information related to the foregoing, (collectively, the "Confidential Information"). Licensee acknowledges that (i) pursuant to this Agreement, Licensee may learn of Confidential Information or otherwise have access to Confidential Information, of Licensor (ii) such Confidential Information constitutes highly valuable information of Licensor not generally known by Licensor's competitors, and (iii) that disclosure of such Confidential Information to competitors of Licensor or other third parties would cause undue harm to Licensor. As such, except as otherwise expressly provided herein, Licensee will retain in strict confidence the Confidential Information and use its best efforts to protect the same by preventing unauthorized disclosure, copying, use, distribution, installation, or transfer of possession of the Confidential Information. If Licensee violates any of the provisions of this Agreement, including, but not limited to this Section 5, Licensor (in addition to any other and additional rights and remedies it may have at law, in equity, or by statute) shall be entitled to immediate and permanent injunctive relief, it being agreed that the damages that Licensor would sustain upon such violation are difficult or impossible to ascertain in advance. The posting of a bond shall not be required as a pre-condition to such injunctive relief.

6.      Reciprocal Grant of License

If Licensee sends Licensor patches, source codes, or other information, this information, source codes, or similar, will be considered licensed to Licensor for distribution, re-licensing, sale, or inclusion with the Software if so decided by Licensor. Licensee hereby grants to Immunity and its assigns the irrevocable, permanent right to conduct security testing (including, but not limited to the right to disassemble, decompile, reverse engineer) on any software written or distributed by Licensee and to distribute and otherwise use the results of such testing. Licensee agrees that these rights superceed any and all licenses including those distributed with Licensee's software as End User License Agreements. This clause shall survive any termination of this, or any other, license. Any information required to perform security testing or distribute the results of security testing shall not be considered Confidential information by the parties of this agreement. Any process conducted by Licensee to perform security testing shall not be considered outside of Licensee's rights. This superceeds other agreements which may be entered into by Licensee or Licensor.

7.    Termination

7.1. Licensor may terminate the License on the occurrence of any one or more of the following events: (a) if Licensee is in default of any payment required to be made by Licensee hereunder when due as herein provided and such default continues for a period of ten (10) days after Licensor's written notice thereof to Licensee; (b) immediately if Licensee shall have defaulted in observing or performing any covenant or agreement as set forth in Section 5 hereunder or any other violation or breach of the terms of this Agreement.

The provisions of Section 2.3 shall govern any termination of this Agreement by Licensor for defaults by Licensee under Section 2.3 of this Agreement. In the event that the License is terminated, the maintenance services shall be deemed automatically terminated and Licensor shall have no obligation to refund to Licensee any portion of the Maintenance Fee.

7.2. The provisions contained in paragraphs 2.3, 2.4, 5, 7, 8 & 11 shall survive the termination of this Agreement.

7.3. After the termination of this Agreement, Licensee shall (i) have no further License or other rights with respect to the Software and (ii) return or destroy, if directed by Licensor, the Software including any and all back-up copies of the Software.

8.    Warranties; Disclaimers and Limitation of Liability

THE SOFTWARE (INCLUDING ALL INFORMATION AND INTELLECTUAL PROPERTY CONTAINED THEREIN) IS PROVIDED "AS-IS", AND NO WARRANTIES OF ANY KIND (INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), EXPRESS OR IMPLIED ARE MADE. LICENSOR (INCLUDING ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO LICENSEE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, INCIDENTAL, LOST DATA OR LOST PROFITS OR OTHER DAMAGES ARISING FROM THIS AGREEMENT INCLUDING BY REASON OF NEGLIGENCE, STRICT LIABILITY, OR BREACH OF WARRANTY OR CONTRACT, EVEN IF LICENSOR HAS BEEN ADVISED OF (OR KNOWS OR SHOULD KNOW OF) THE POSSIBILITY OF SUCH DAMAGES. THE WARRANTY DISCLAIMER AND LIMITTATIONS OF LIABILITY, BELOW, ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN LICENSOR AND LICENSEE. LICENSOR WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE WITHOUT SUCH LIMITATIONS. LICENSOR'S ENTIRE LIABILITY TO LICENSEE OR ANY THIRD PARTY UNDER THIS AGREEMENT, IF ANY, FOR ANY CLAIM(S) FOR DAMAGES RELATING TO THE SOFTWARE, WHETHER BASED IN CONTRACT, NEGLIGENCE, OR OTHERWISE SHALL BE LIMITED TO THE AMOUNT OF THE LICENSE FEE PAID BY LICENSEE FOR THE SOFTWARE WHICH IS THE BASIS OF THE CLAIM(S). EXCEPT AS SET FORTH HEREIN, LICENSOR (INCLUDING ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) SPECIFICALLY DISCLAIMS LIABILITY FOR THE FITNESS, ACCURACY OR COMPLETENESS OF THE SOFTWARE AND FOR ANY AND ALL DAMAGE INCURRED WHILE USING THE SOFTWARE. LICENSEE ASSUMES ALL RISKS AS TO THE SUITABILITY OF THE SOFTWARE.

9.     Indemnification

Licensee hereby agrees to defend, indemnify and hold harmless Licensor, its officers, directors, shareholders, employees and agents from and against any and all losses, claims, costs, damages, liabilities and expenses of any nature (including without limitation, attorneys' fees) incurred, arising out of or related to or in connection with any breach of Licensee's obligations, representations, duties or warranties contained herein.

10.    Export

Licensee acknowledges that the Software may be subject to United States re-export regulations. Specifically, Licensee agrees and certifies that the Software, technical data or information provided by Licensor, or the direct product thereof, will not be re-exported except as permitted by United States laws and regulations, and the prior written authorization of Licensor. Licensee shall be solely responsible for compliance with all laws and regulations applicable to export of the Software outside of the United States of America pursuant to this Agreement. Licensee shall defend and indemnify Licensor against any costs, expenses, fines and other liability for failure to so comply, provided that Licensor shall cooperate with all reasonable requests from Licensee for information.

11.     Entire Agreement; Modification

The terms and conditions herein contained constitute the entire agreement between the parties and supersede all previous commitments, agreements, and understandings, whether oral or written, between the parties hereto with respect to the subject matter hereof and no previous agreement or understanding varying or extending the same shall be binding upon any party hereto. Immunity reserves the right to modify this agreement for future versions of the Software.

12.    Severability

If a provision herein contained shall be held by any court of competent jurisdiction to be illegal, void or unenforceable, such provision shall be of no force or effect while such infirmity shall exist, but such infirmity shall have no effect whatsoever upon the binding force or effectiveness of any of the other provisions hereof, it being the intention of the parties hereto that had they, or either of them, known of such infirmity, they would have entered into a contract, each with the other, containing all of the other provisions hereof.

13.    Governing Law, Jurisdiction and Venue

This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to the conflicts of laws principles thereof. The parties hereto each hereby irrevocably submit to the exclusive jurisdiction and venue of the state courts of the State of New York, New York County, and to the jurisdiction of the United States District Court for the Southern District of New York for the purposes of any suit, action or other proceeding arising out of or based upon this Agreement or the subject matter hereto.

12.    Force Majeure

In the event of a party failing to perform any obligation under this Agreement (except the making of any payment due under or pursuant to this Agreement) as a result of strike, lockout or other labor difficulties, fire, flood, act of God, embargo, act of war, regulation or restriction of government or law or any other occurrence of circumstance beyond the reasonable control of the party, that party shall not be liable in damages or otherwise for failure to perform that obligation and such failure shall not be a ground for terminating this Agreement.

13.    Notices

Any notice or other communication required or made pursuant to this Agreement shall be in writing; shall be given either personally, by receipted mail, or by nationally recognized overnight courier (with receipt); and shall be deemed duly and properly given if and when mailed by special delivery with all charges prepaid, and addressed to the parties at the following addresses or to such other address as a party may by like notice designate:

If to Licensor to:
    Immunity, Inc.
    1247 Alton Road
    Miami Beach, Florida, 33139
    Attention:  Justine Aitel, CEO

with a copy to:

    Meister Seelig & Fein LLP
    140 East 45th Street, 19th Floor
    New York, New York 10017
    Attention:    Debora A. Stegich, Esq.

14.    Counterparts

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

15. Authority; Relationship Each party represents and warrants that on this date they are duly authorized to bind their respective principals by their agreement. The parties hereto are independent contractors and nothing contained herein shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties.

16. Successors and Assigns This Agreement will be binding on the parties' respective successors and permitted assigns. This Agreement may not be assigned or sublicensed by Licensee without the prior written consent of Licensor and provided further, such assignee or sublicensee agrees to accept and be bound by the terms and conditions of this Agreement.

17.    Headings

The headings and subheadings contained in this Agreement are for convenience of reference only and will not be considered in construing this Agreement.

18.	Advertising Disclaimer

Immunity makes no representations concerning any endeavor to review the content of advertisements appearing in the Software or any sites listed in the advertisements, however Immunity reserves the right to accept or reject any submitted advertisement for no reason.

Immunity does not attempt to investigate or verify claims, including claims of capability, benefits, or compensation made in advertisements appearing in the Software.

The appearance of advertising in the Software in no way implies endorsement or approval by Immunity of any advertising claims or of the advertiser, its products, or services, or any of the sites or services that may be referenced or linked to via advertisements. Advertising information does not necessarily reflect the opinions of Immunity or any of its employees or clients. Advertising material is not guaranteed to be correct, complete, or up to date. Immunity encourages discretion while browsing advertisements. Advertisements may direct browsers to sites containing information that some people may find offensive or inappropriate.

The advertising service and the advertisements appearing in the Software are provided by Immunity on an "as is" basis and Immunity expressly disclaims any and all warranties and any liability whatsoever in connection with advertising appearing in the Software. In no event shall Immunity be liable for any direct, indirect, incidental, punitive or consequential damages of any kind whatsoever with respect to the advertising service or the advertisement contents in the Software.

Any copyrighted material appearing in Immunity advertising, not sanctioned by the copyright holder, is unintentional. Please notify Immunity as soon as possible if any such unsanctioned material exists in Immunity advertising.  If proof is shown, Immunity will delete such material or obtain permission from the copyright holder.

Immunity cannot guarantee advertisements submitted for display in the Software will be received or processed.
19. Data
All data and other information derived or resulting from, or collected through or in connection with, the use, installation, accessing and/or provision of the Software to or by Licensee (collectively, "Data") shall be and remain the property of Licensor.  Licensee understands, acknowledges and agrees that Licensor may use such Data, as well as disclose and provide access to such Data to third parties, for any purposes whatsoever.
SCHEDULE A

THE SOFTWARE

Software includes Immunity Software ("Software Products") that is capable of application analysis. The Software Products are as follows:

Immunity Debugger

SCHEDULE "B"

Licensee shall pay Licensor no fee.