Terms of Use

1. Grant of License and Restrictions. Subject to all the terms of this Agreement and timely payment of all fees, Company grants Licensee a nonsublicensable, nonexclusive, right to (i) use solely in and for the Application (as defined above) a product designated above in object code form only (“Product”) on servers located at the site designated (“Site”), and (ii) copy and distribute internally solely for use in the Application up to that number of object code copies of the end-user client portion of the Product specified in the Product and Fee Information section of this Agreement, strictly in accordance with the terms and procedures, and with any notices, Licensor may prescribe from time to time. Except for one copy solely for back-up purposes and except for the distributable portions mentioned above, Licensee may possess only the number of copies of any Product set forth above and may use each such copy on only one server and only in accordance with Company's applicable user documentation. Company retains ownership of all Products and copies. Licensee will maintain the copyright notice and any other notices that appear on the Product on any copies and any media. Licensee will not (and will not allow any third party to) (i) reverse engineer, reduce to practice, or attempt to discover any source code or underlying ideas or algorithms of any Product (except to the extent that applicable law prohibits reverse engineering restrictions), (ii) provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use a Product for the benefit of any third party, or (iii) use any Product, or allow the transfer, transmission, export, or re-export of any Product or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency. All the limitations and restrictions on Products in this Agreement also apply to documentation.

2. Fees and Payment. Upon execution of this Agreement, Licensee shall pay Company the Initial License Fee set forth thereon. All payments shall be made inside the U.S., in U.S. dollars. The terms of all payments shall be net-thirty (30) calendar days from the date of invoice. Any payments more than thirty (30) calendar days overdue may, at Company's discretion, bear a late payment fee of 3.5% per month, or, if lower, the maximum rate allowed by law. In addition, Licensee will pay all taxes (such as the VAT), shipping, duties, withholdings and the like, in addition to the stated monthly or annual fee stated above. With each payment, Licensee will include a calculation of such payment and all information relevant to such calculation. Licensee will maintain, and Company will be entitled to audit on reasonable notice, any records relevant to such payments; Company may audit such records on reasonable notice at Company's cost (or if the audits reveal a 5% underpayment, at Licensee's cost).

3. Termination. This Agreement and all licenses will terminate thirty days (ten in the case of non-payment and immediately in the case of a breach of Section 1) after notice of any breach by Licensee remaining uncured at the end of such notice period. Upon termination, or if a license ceases to be effective, Licensee shall immediately cease all use of all affected Products and return or destroy all copies of all affected Products and all portions thereof and so certify to Company. Except as otherwise expressly provided herein, the terms of the Agreement shall survive termination. Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs. Licensee shall be responsible for and pay any and all attorneys fees and costs incurred by Company to collect any monies due under this Agreement and/or to enforce the Terms and Conditions of this Agreement.

4. Indemnification. Company shall hold Licensee harmless from liability to third parties resulting from infringement by a Product of any United States patent issued sixty (60) days or more before delivery of such Product or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to a Product or portions or components thereof (i) not supplied by Company, (ii) made in whole or in part in accordance to Licensee specifications (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Licensee continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Licensee's use of such Product is not strictly in accordance with this Agreement. Licensee will indemnify Company from all damages, settlements, attorneys' fees and expenses related to (i) any claim of infringement or misappropriation excluded from Company's indemnity obligation by the preceding sentence, or (ii) any other claim in connection with the Product or the use or distribution thereof.

5. Limited Warranty and Disclaimer. Company warrants for a period of one (1) year from Licensee's first acquisition of a Product that such Product will materially conform to Company's then currently stated application for such Product. This warranty covers only problems reported to Company during the warranty period. ANY LIABILITY OF COMPANY WITH RESPECT TO A PRODUCT OR THE PERFORMANCE THEREOF UNDER ANY WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY WILL BE LIMITED EXCLUSIVELY TO PRODUCT REPLACEMENT OR, IF REPLACEMENT IS INADEQUATE AS A REMEDY OR, IN COMPANY'S OPINION, IMPRACTICAL, TO REFUND OF THE LICENSE FEE PAID FOR THE CURRENT LICENSE PERIOD. EXCEPT FOR THE FOREGOING, ALL PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHER, COMPANY DOES NOT WARRANT RESULTS OF USE OR THAT THE PRODUCTS ARE BUG FREE OR THAT THEIR USE WILL BE UNINTERRUPTED. During Warranty period, limited warranty coverage is for replacement service (software media) as well as e-mail and phone technical support.

6. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, COMPANY SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO IT HEREUNDER WITH RESPECT TO THE APPLICABLE UNITS OF PRODUCT DURING THE LICENSE PERIOD IN WHICH THE CAUSE OF ACTION ACCRUED; OR (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (III) FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES; (IV) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (V) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.

7. Press Release. Licensee consents to a press release, which may include the Licensee's name and trademark. Each party will have the opportunity to review and edit the document prior to its release. Company will select the date of release, but we anticipate releasing the press release approximately six to eight weeks after the execution of this Agreement.

8. Miscellaneous. Neither the Agreement nor the licenses granted hereunder are assignable or transferable by Licensee without the prior written consent of Company; any attempt to do so shall be void. Company may assign this Agreement in whole or in part. Any notice, report, approval or consent required or permitted hereunder shall be in writing. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be construed pursuant to the laws of The United States of America Commonwealth of Pennsylvania without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Venue for any action relating to this Agreement shall be exclusively in the Commonwealth of Pennsylvania Court of Common Pleas, United States of America, and the parties hereto consent to the exclusive jurisdiction of such Court. Any waivers or amendments shall be effective only if made in writing and signed by the parties hereto. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Company in any action to enforce this Agreement will be entitled to recover its attorney's fees, costs and litigation expenses incurred in connection with such action. Licensee represents that it is not a government agency and it is not acquiring the license pursuant to a government contract or with government funds.