Topgrading Forms License Agreement

TOPGRADING® ELECTRONIC FORMS LICENSE AGREEMENT

Name Of Licensee (Company or Other Employer):                     

Representative of Licensee (Your Name):                      

Email Address of Representative:                     

Total Number Of Interviewers:                

(i.e. number of employees and individual independent contractors of Licensee that will be interviewing candidates or otherwise using Forms)

Term: Until 08/20/2009

IMPORTANT - READ CAREFULLY: This "License Agreement" constitutes a legal agreement between the Licensee ("You" or "Licensee") and Smart and Associates, Inc. ("Smart," "We" or "Us"). By mouse clicking "accept" above, you will be agreeing to the terms of this Agreement. Furthermore, by clicking "accept" you do confirm to us that you are "signing" this Agreement for all purposes under applicable law. Any individual agreeing and signing on behalf of an entity is representing and warranting that such agreement and signature is being made with full authority.

Topgrading Electronic Forms
License Agreement

1. Background.

1.1 We are engaged in the business of designing, developing, licensing and updating electronic forms that are useful for interviewing and selecting candidates for executive positions. We make our forms (the "Forms") available on our website which is www.smarttopgrading.com on a subscription basis. You are purchasing a subscription from us in accordance with the terms of this License Agreement.

2. License.

2.1 We hereby grant to you a non-exclusive license for the number of Users set forth above to use the Forms for the Term solely for your hiring and employee evaluation purposes. This license is subject to the following restrictions and commitments:

(a) You may print and/or email the Forms that you wish to use or provide to your job candidates, but may not make copies in any other way for any purpose;

(b) You will assure that copies of the Forms are used only by your Users and only for hiring by and for you and no other person or entity.

3. Account and Password.

3.1 You will be given an account and password which you shall provide only to your Users who are working on your behalf to select and hire executive employees, and are aware of and agree to be governed by the terms of the license granted hereunder.

4. Proprietary Rights.

4.1 You understand and agree that we own, and will continue to own, all proprietary rights, including copyrights, service mark and trademark rights, trade secret rights and patent rights, in the Forms.

5. Limitation of Warranties.

5.1 it is understood and agreed that we are not providing any warranties whatsoever in connection with the forms including, but not limited to, any warranties of merchantability or fitness for a particular purpose.

6. Limitation of Liabilities.

6.1 We shall not, in any event, be liable for special, incidental, consequential, indirect, punitive or other similar damages, even if we or any of our distributors or agents, have been advised of the possibility of such damages.

7. Right to Modify, Remove, Replace and Add to Forms.

7.1 We reserve the right to modify, remove, replace and add new Forms at any time at our discretion.

8. Term, Termination and Automatic Extension.

8.1 Unless terminated earlier for a material breach or extended as provided herein, the Term will end on the date set forth above as the end of the Term. If you materially breach any term of this License Agreement, we may terminate the Term immediately and without owing any refund to you. Upon termination, you will no longer have the ability to access the Forms and on any Form that you have saved electronically, a warning may appear that your license has expired.

8.2 If you have provided us with a valid credit card number, or have otherwise paid all sums due us, are in full compliance with the terms hereof and neither party has sent a notice of termination prior to the expiration date, the Term will automatically extend for a period of one (1) more year, and we will charge your credit card or send you an invoice for the annual license fee.

9. Notice.

9.1 Any notice to you will be effective when sent to the last email or physical address you have given us. Any notice to us will be effective when delivered to the then current email or physical address provided on our website.

10. Change of Terms.

10.1 We reserve the right to change the terms of this Agreement at any time. Any such changes will apply to any renewal or extension of the Term that starts after the change.

11. Miscellaneous.

11.1 Applicable Jurisdiction and Venue. This Agreement and performance hereunder shall be governed and construed in accordance with the laws of the State of Illinois and Nation of the United States, without regard to law relating to what law would otherwise apply. In the event of any legal or equitable action arising under this Agreement, the parties agree that the jurisdiction and venue of such action shall lie exclusively within the state courts of Illinois located in Lake County, Illinois, or in the U.S. District Court for the Northern District of Illinois, and you specifically waive any other jurisdiction or venue.

11.2 Waiver of Jury Trial. Each of the parties does hereby waive any right to a jury trial and agrees that any trial shall be held before a judge without a jury.

11.3 Further Actions. You agree to execute any and all documents and take any other actions reasonably required to effectuate the purposes of this Agreement.

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

11.5 Interpretation The fact of authorship by or at the behest of a party shall not affect its construction or interpretation.

11.6 Survivability The ownership and proprietary rights provisions set forth in this Agreement, and any other provisions that by their sense and context the parties intend to have survive, shall survive the termination of this Agreement and any obligations hereunder for any reason.

11.7 Right to Audit It is understood that use of the Forms by more Users than the number for which you have paid a license would violate the terms of the license granted hereunder and therefore constitute, among other things, copyright infringement. In this regard, we reserve the right to visit your premises and interview personnel and take other reasonable actions to try to confirm that you have complied with the terms of your license.

11.8 Entire Agreement This Agreement embodies the entire agreement and understanding of the parties and supersedes all prior agreements and understandings between the parties hereto relating to the subject matter hereof.

11.9 Trademarks and Copyrights The marks Topgrading, Topgrader, and Topgrade are registered marks of Bradford D. Smart and Geoffry H. Smart. The copyrights to the Topgrading forms are owned by Smart & Associates, Inc.