This Agreement incorporates by reference the terms specified on one or more separately executed Statement of Works (“Statement of Work”) subject to the terms and conditions specified below.

“Product(s)” means (i) the computer programs described in and specifically identified in one or more separately executed Statement of Work(s) that NIKA TEC makes available, whether electronically, embedded on disc or other media (the “Software”), (ii) the published user manuals and the documentation that NIKA TEC generally makes available for the Software (the “Documentation”), (iii) the performance enhancements, updates, upgrades or new versions of the Software or Documentation that NIKA TEC may provide to Customer under this Agreement (the “Updates”), (iv) any copy of the Software, Documentation, or Updates, and/or (v) any hardware devices described in and specifically identified in one or more separately executed Statement of Work(s) (the “Hardware”).

“Customer Original Materials” means any data, text, photos, graphics, recordings, software, documentation, images, or other materials of any kind or nature made available to NIKA TEC by Customer for use in connection with the Products.

“Statement of Work” means the schedule to this agreement entitled “Statement of Work” and that contains the scope, cost estimate and timeline related to the projects governed by this Agreement. A Statement of Work may specify the terms of the initial development project, ongoing projects and service agreements, consulting projects, and other engagements.

“Report Materials” means any daily, weekly or monthly reports summarizing other information provide by the Products under this Agreement or any Statement of Work(s).

2.1 Grant. NIKA TEC hereby grants Customer, and Customer hereby accepts from NIKA TEC, a non-exclusive and non-transferable right and license to use the Products specified on one or more separately executed Statement of Work (“Statement of Work”) during the Term subject to the terms and conditions specified herein.

2.2 Limitations. Customer shall not (i) assign, sublicense, transfer, lease, rent or distribute any of its rights in the Products, (ii) port, translate, localize, or create derivative works based upon the Products in any manner, (iii) reverse assemble, decompile, reverse engineer, translate or otherwise attempt to derive or obtain the source code, the underlying ideas, algorithms, structure or organization of the Products, (iv) copy or duplicate the Products (except that Customer may make a reasonable number of copies of such Products for backup purposes only) or (v) use the Products in any service bureau, time sharing or third party training arrangement, or outside of its normal internal business purposes, or in a manner that is inconsistent with the Products intended use.

3.1 Services. Subject to the terms of this Agreement, and in consideration for the payment from the Customer to NIKA TEC of the Fees set forth in the Statement of Work, NIKA TEC will provide to Customer the services set forth in the Statement of Work.

4.1 Payment for Services. Payment schedules are set forth in the Statement of Work. All Fees will be due on or before the date indicated in the Statement of Work. If a Statement of Work does not specifically set forth a payment schedule, NIKA TEC will invoice Customer for services on a monthly basis for services to be rendered and or due prior to the beginning of each month

4.2 Payment for Expenses. Customer is responsible for all reasonable expenses related to shipping, handling and freight charges for all materials shipped by or at the direction of Customer. Customer is also responsible for expenses directly related to the development services rendered, including, but not limited to, travel, travel related expenses, presentation materials, special hardware/software requirements, and content/data purchases. Unless otherwise stated in a Statement of Work, NIKA TEC will invoice Customer for all reasonable expenses on a monthly basis for expenses incurred during the previous month, and payment will be due upon receipt of the invoice.

4.3 Late Payment. Any amounts due hereunder which are not paid within thirty (30) days of the due date for such payment shall accrue interest at the lesser of 1.5% per month or the maximum amount permitted by applicable law. In the event that Customer fails to timely pay any amount due hereunder, Customer agrees that NIKA TEC may suspend provision of all services to be provided by NIKA TEC relating to the Software until all amounts due (including interest and any then-applicable reactivation fee specified by NIKA TEC) are paid in full. Customer shall also be obligated to reimburse NIKA TEC for all expenses incurred by NIKA TEC in connection with collecting on a late payment from Customer, including attorneys’ fees and the fees of any collection agency retained by NIKA TEC.

4.4 Prepaid Fees. In the event of the termination of this Agreement, Customer shall not be entitled to receive a refund of any prepaid Fees.

4.5 Taxes. The fees set forth herein are exclusive of all taxes. Customer is responsible for payment of all taxes of every kind imposed in connection with the sale or license to Customer of products or services arising as a result of this Agreement (except for taxes imposed on NIKA TEC’s net income).

5.1 Maintenance and Support. During the warranty period, if any, specified in the Statement of Work (the “Warranty Period”) and any Annual Maintenance Period, NIKA TEC will at no additional charge provide Customer with (i) the Updates that NIKA TEC may make generally available as part of its services, (ii) a replacement for the software Product if the Product becomes damaged, destroyed or unusable, and (iii) technical advice, assistance in using the Products

5.2 Limitation. The Updates will not include any upgrade or new version of the Products that NIKA TEC decides, in its sole discretion, to make generally available as a separately priced item. This section will not be interpreted to require NIKA TEC to develop or release enhancements or customize enhancements to satisfy Customer’s particular requirements. If an Update replaces the prior version of a Product, Customer will discontinue use and destroy the prior version upon installing the Update.

6.1 Limited Warranty. NIKA TEC warrants it has the right to (i) enter into this Agreement and (ii) grant the licenses offered under this Agreement. NIKA TEC also warrants that the Products will perform substantially as described in the accompanying Documentation. Customer acknowledges that the Products may not satisfy all of Customer’s particular requirements and that use of the Products may not be uninterrupted or error free. NIKA TEC further warrants that it will perform the services set forth herein in a manner consistent with reasonably applicable industry standards.

6.2 Remedies. In case of breach of warranty, NIKA TEC or its representative will correct or replace any defective Product or, if not practicable, NIKA TEC will accept the return of the defective Product, terminate the applicable Statement of Work, and give credit in kind to Customer the License Fee actually paid to NIKA TEC for the defective Product. Customer acknowledges that this paragraph sets forth Customer’s exclusive remedy, and NIKA TEC’s exclusive liability, for any breach of warranty.

6.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR TO THE EXTENT REQUIRED BY APPLICABLE LAW, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE PRODUCTS, INCLUDING ANY SOFTWARE OR HARDWARE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY NIKA TEC, ITS LICENSORS OR REPRESENTATIVES OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, SATISFACTION AND FITNESS FOR A PARTICULAR PURPOSE) ARE HEREBY DISCLAIMED, OVERRIDDEN, AND EXCLUDED.

7.1 Limitation. NIKA TEC shall have no indemnity obligation to Customer under this Section to the extent the claim results from (i) a correction or modification of the Products not provided by NIKA TEC or approved by NIKA TEC in writing, (ii) the failure to promptly install an Update if installation of such Update would have avoided the infringement and NIKA TEC puts Customer on notice of the need to install such Update in order to avoid infringement, or (iii) the combination of the with other non-NIKA TEC software if such combination is not approved by NIKA TEC in writing.

7.2 Indemnity of Non-Infringement; Compliance with Laws and Regulations. It will be the sole responsibility of Customer to provide Customer Original Materials, and to use the survey results and data in a manner, which will not (a) constitute or encourage any violation of any applicable law or regulation, including laws or regulations relating to privacy, gambling, pornography, obscenity, hacking, gambling or computer viruses, (b) be defamatory or libelous, (c) infringe the rights of any third party, including without limitation any patents, copyrights, trademarks, trade secrets or other intellectual property rights, or (d) involve the transmission of unsolicited bulk mail messages (i.e., “spamming”). Customer will defend, indemnify and hold harmless NIKA TEC from any loss, damages or expense incurred by such parties arising from any breach by Customer of its representations, warranties or covenants set forth herein or any actions taken or goods or services purchased or sold in connection with the Statement of Work or this Agreement.

NEITHER NIKA TEC NOR CUSTOMER WILL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OR LIABILITIES OF ANY KIND OR FOR LOSS OF DATA, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS OR OTHER LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR USE BY CUSTOMER OF THE PRODUCT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE BREACHING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN NO CASE SHALL EITHER PARTY’S LIABILITY EXCEED THE AMOUNT ACTUALLY PAID BY THE CUSTOMER FOR THE SPECIFIC PRODUCT THAT DIRECTLY CAUSED THE DAMAGE.

9.1 NIKA TEC Property. All intellectual property and other proprietary rights in and related to the Products are and will remain the exclusive property of NIKA TEC or its licensors, whether or not specifically recognized or perfected under local applicable law. Customer will not take any action which jeopardizes NIKA TEC’s or its licensor’s proprietary rights or acquire any right in the Products, except the limited use rights specified in this Agreement. NIKA TEC or its licensor will own all rights in any copy, translation, modification, adaptation, or derivation of the Products, including any improvement or development thereof. Notwithstanding the foregoing, NIKA TEC waives all rights to any and all parts and proceeds resulting from Customer’s use of the Products and all proceeds resulting from any services provided by NIKA TEC to Customer in connection with Customer’s use of the Products, except for the License Fees paid to NIKA TEC under this Agreement.

9.2 Customer Property. Subject to the rights retained by NIKA TEC and its licensors in and to the Products, all intellectual property and other proprietary rights in and related to the Customer Original Materials are and will remain the exclusive property of Customer.

9.3 Third Party Property. Except as otherwise set forth herein, nothing will cause or imply any sale, license or other transfer of proprietary rights of or in any third party software or products from one party to this Agreement to the other party.

9.4 Marketing. Customer hereby grants NIKA TEC a nonexclusive license to use the Customer’s trade names, trademarks for the limited purpose of promoting NIKA TEC’s business and marketing NIKA TEC’s products and services to third parties.

10.1 Proprietary Information and Materials. Customer and NIKA TEC hereby acknowledge that they will receive Proprietary Information and Materials from the other party during the term of this Agreement. "Proprietary Information and Materials" is defined to include all technical, survey, report, customer, personnel and other business information of NIKA TEC and Customer and any materials pertaining thereto, including without limitation the Software, the Application and Documentation and the terms of this Agreement. Each party agrees to hold the other party’s Proprietary Information and Materials in strict confidence, and not to use or disclose such information, except as expressly permitted hereunder. Each party also agrees that it will restrict access to the other party’s Proprietary Information and Materials solely to those of its employees and agents who need to know such information in connection with the performance of such party’s obligations under this Agreement, and each party shall ensure that such employees and agents fully comply with the terms set forth in this Section. Notwithstanding anything to the contrary herein, Neither party shall be permitted to disclose the other party’s Proprietary Information and Materials to any party that provides services or products that are the same as or similar to the services or products provided by such other party to its customers at any time during the term hereof. The parties’ respective obligations hereunder shall survive any termination or expiration of this Agreement.

10.2 Exceptions to Proprietary Information and Materials. Notwithstanding the foregoing, Proprietary Information and Materials shall not include any information which a party can prove is (i) now or hereafter, through no unauthorized act or failure to act on the disclosing party’s part, in the public domain; or (ii) known to such party without an obligation of confidentiality effective at the time such party received such Proprietary Information and Materials from the other party, as evidenced by written records. If a party elects to rely on one or more of the foregoing provisions, it shall have the burden of proving the applicability of the provision to its disclosure.

10.3 Injunctive Relief. The parties acknowledge and agree that any breach of the terms of this Agreement would cause irreparable harm and that money damages would not be a sufficient remedy for any such breach of this Agreement, and that the non-breaching party will be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach, upon posting a reasonable bond. Such remedies will not be deemed to be the exclusive remedy for breach of this Agreement, but will be in addition to all other remedies that may be available.

11.1 Term. This Agreement will be effective as of the Effective Date and during the term specified in the Statement of Work. Customer may terminate this Agreement or any Statement of Work, without right to refund, by notifying NIKA TEC of such termination. This Agreement will terminate automatically if Customer becomes insolvent, or enters into any proceeding that relates to insolvency or protection of creditor’s rights.

11.2 Use of Products and Performance of Services. Upon the termination of this Agreement for any reason, NIKA TEC will have no further obligation to perform services under this Agreement or any Statement of Work and all rights granted to the Customer will cease and Customer will promptly (i) purge any software used in connection with the Products from its systems and files, (ii) destroy any copies of software used in connection with the Products in its possession, (iii) return any Hardware used in connection with the Products in the same condition in which the Hardware was received by Customer. The provisions of Sections 8, 9, 10 and 11 will survive termination of this Agreement.

11.3 Rights to Survey Data and Report Materials. Upon termination of this Agreement for any reason, NIKA TEC agrees to promptly (i) transfer to Customer all copies of the Survey Data and Report Materials collected by NIKA TEC, (ii) purge any Survey Data and Report Materials from its systems and files, and (iii) destroy any copies of the Survey Data and Report Materials in its possession.

Neither party shall assign, delegate or otherwise transfer this Agreement or any of it rights or obligations hereunder without the other party's prior approval, which approval shall not be unreasonably withheld. This Agreement will bind and inure to Customer’s successors-in-interest.

13.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof, and supersedes all prior agreements, understandings and representations relating hereto. The Agreement shall not be varied except by written agreement signed by both NIKA TEC and Customer.

13.2 Notices. Any notice provided for or permitted under this Agreement will be treated as having been given (a) when delivered personally or sent by confirmed fax, on the next business day after the day on which it is sent, (b) when sent by commercial overnight courier with written verification of receipt, on the next business day after its delivery to the courier during normal business hours, or (c) when mailed postage prepaid by certified or registered mail, return receipt requested, on the fifth business day after its date of posting. Any notices required or permitted to be given shall be in writing and addressed to Customer as described in the beginning of this Agreement as follows:

And to NIKA TEC, as follows:
NIKA TEC
2003 W. Fulton
Suite 420
Chicago Il 60612

13.3 Waiver; Severability. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party’s right to exercise such right or any other right in the future. In the event that any of the terms of this Agreement become or are declared to be invalid or unenforceable, the remainder of the term shall be amended to achieve as closely as possible the intended effect of the original term, and all remaining terms of this Agreement shall remain in full force and effect.

13.4 Headings. The headings of the paragraphs of this Agreement and any Statement of Works are for convenience of reference only and in no way define, limit or affect the scope or substance of any paragraph of this Agreement or Statement of Work.

13.5 Independent Contractors. The relationship of the parties will be independent contractors, and neither party will have the authority to enter into agreements on behalf of the other party. This Agreement does not create any form of partnership, joint venture, merger, franchise or relationship of NIKA TEC to agent.

13.6 This agreement shall be governed by the laws of the state of Illinois.