End-User License Agreement for HALOCAD Software

NOTICE: READ THIS END-USER LICENSE AGREEMENT CAREFULLY BEFORE INSTALLING, ACCESSING, COPYING OR USING THE SOFTWARE ACCOMPANYING THIS AGREEMENT. BY LOADING OR USING THE SOFTWARE, YOU ARE AGREEING TO THE TERMS OF THIS LICENSE WHICH CREATES A LEGALLY ENFORCEABLE CONTRACT BETWEEN SECUDE SOLUTIONS AG AND YOU AND CONSTITUTES ACCEPTANCE OF ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION.

RETURN: IF YOU ARE NOT AUTHORIZED TO ENTER INTO THIS AGREEMENT, OR IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN YOU MUST NOT INSTALL, ACCESS, COPY OR USE THE SOFTWARE, AND YOU MUST DELETE AND PERMANENTLY ERASE FROM ALL COMPUTER MEMORIES AND STORAGE MEDIA ALL COPIES OF THE SOFTWARE AND DOCUMENTATION.

This End-User License Agreement (the Agreement), effective as of the date you accept the terms hereof, is entered into between SECUDE Solutions AG, a Swiss corporation with an office and place of business at Landenbergstrasse 34, 6005 Luzern, Switzerland (Licensor) and Licensee. The parties agree as follows:

1. DEFINITIONS

Documentation means the user guide, help information and/or other documentation provided by Licensor with the Software.

Licensee means the User, together with the business or other entity for which the Software is obtained.

Software means any Licensor’s HALOCAD software program (in object code) accompanying this Agreement.

Updates means, if applicable, any patch, update or new version of the Software delivered to Licensee pursuant to the Support Services.

User means you, the individual and/or company who accepts this Agreement, not any other person or entity.

2. LICENSE

2.1 Software.

Subject to all terms and conditions in this Agreement, Licensor grants Licensee a nonexclusive, nontransferable, nonsublicenseable right and license to have the User use the Software and accompanying Documentation without modification.

2.2 Limitations.

Licensee may copy the Software on computer systems owned, leased, or otherwise controlled by Licensee in Licensee’s facilities, and Licensee may make one back-up copy of the software, subject to these conditions: (i) Licensee may not copy, modify, rent, sell, distribute or transfer any part of the Software except as provided in this agreement; and, (ii) Licensee agrees to prevent unauthorized copying of the Software. Licensee may not reverse engineer, decompile, or disassemble the Software. Licensee may not sublicense or permit more users than licensed for the Software. You may only copy the documentation about the Software for use within Licensee’s organization.

2.3 License Control.

Licensee acknowledges that the Software may contain code or require devices that detect or prevent unauthorized use of, or disable, the Software.

3. OWNERSHIP OF SOFTWARE, COPYRIGHTS & TRADEMARKS.

The Software is protected by copyright. All copyrights, trademarks and other intellectual property associated with the Software is the exclusive property of Licensor’s. Title to all copies of the Software and/or the corresponding documentation shall remain that of Licensor’s. Licensee agrees that it does not acquire any rights to ownership of the software and/or the documentation connected to it by entering into this license agreement. Licensee agrees not to change or remove any copyright or trademark notices.

4. LIMITED WARRANTY

Licensor guarantees that the Software will function satisfactorily if operated in accordance with Licensor’s guidelines. Licensee is encouraged to inform Licensor (or Licensor’s distributor) of any defects and contact Licensor’s helpline. Licensee is prohibited from making any changes to the Software and any such changes shall void any and all warranty by Licensor and any obligations by Licensor to replace the Software.

Licensor does not guarantee that the Software will meet all of Licensee’s expectations or that it will operate without error with all of Licensee’s other applications and combination of software programs.

5. CONDITIONS FOR EXPORT

The Software contains cryptographic elements and is therefore subject to import and export regulations in some countries. It is Licensee’s obligation to comply with the laws of all countries in which Licensee operates.

6. CONFIDENTIALITY

6.1 Scope.

The term Confidential Information means all trade secrets, know-how, software and other financial, business or technical information of Licensor or any of its suppliers that is disclosed by or for Licensor in relation to this Agreement, but not including any information Licensee can demonstrate is (a) rightfully furnished to it without restriction by a third party without breach of any obligation to the Licensor, (b) generally available to the public without breach of this Agreement or (c) independently developed by it without reliance on such information. All Software and Documentation is Confidential Information.

6.2 Confidentiality.

Except for the specific rights granted by this Agreement, Licensee shall not possess, use or disclose any Confidential Information without Licensor’s prior written consent, and shall use reasonable care to protect the Confidential Information. Licensee shall be responsible for any breach of confidentiality by its employees.

7. PROPRIETARY RIGHTS

7.1 Restrictions.

Licensee shall not (a) use any Confidential Information to create any software or documentation that is similar to any Software or Documentation, (b) disassemble, decompile, reverse engineer or otherwise try to discover any source code or underlying structures, ideas or algorithms of the Software (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (c) encumber, lease, rent, loan, sublicense, transfer or distribute any Software, (d) copy, adapt, merge, create derivative works of, translate, localize, port or otherwise modify any Software or Documentation, (e) use the Software, or allow the transfer, transmission, export or re-export of all or any part of the Software or any product thereof, in violation of any export control laws or regulations of the United States or any other relevant jurisdiction or (f) permit any third party to engage in any of the foregoing proscribed acts. Licensee shall not use the Software for the benefit of any third party (e.g., time-share or service bureau arrangement) without Licensor’s prior written consent, at its discretion.

7.2 No Implied License.

Except for the limited rights and license expressly granted hereunder, no other license is granted, no other use is permitted and Licensor (and its suppliers) shall retain all right, title and interest in and to the Software and Documentation (and all patent rights, copyright rights, trade secret rights and all other intellectual property and proprietary rights embodied therein).

7.3 Markings.

Licensee shall not alter, obscure or remove any trademark, patent notice or other proprietary or legal notice displayed by or contained in any Software, Documentation or packaging.

7.4 Third Party Software.

The Software may operate or interface with software or other technology (In-Licensed Code) that is in-licensed from, and owned by, third parties (Third Party Licensors). Licensee agrees that (a) it will use In-Licensed Code in accordance with this Agreement and any other restrictions specified in the applicable license set forth or referenced in the Documentation, (b) no Third Party Licensor makes any representation or warranty to Licensee concerning the In-Licensed Code or Software and (c) no Third Party Licensor will have any obligation or liability to Licensee as a result of this Agreement or Licensee’s use of the In-Licensed Code.

8. WARRANTY DISCLAIMERS

SOFTWARE, DOCUMENTATION AND ANY SUPPORT SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE OR SUPPORT SERVICES WILL MEET LICENSEE’S REQUIREMENTS OR THAT THEY WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSOR HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SOFTWARE AND SUPPORT SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

9. LIMITATION OF LIABILITY

IN NO EVENT SHALL LICENSOR (OR ITS SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SUPPORT SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) AGGREGATE DAMAGES, IN EXCESS OF THE AMOUNT PAID TO LICENSOR FOR THE SOFTWARE OR SUPPORT SERVICE THAT GAVE RISE TO THE CLAIM DURING THE PRIOR 12-MONTH PERIOD, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

10. TERM AND TERMINATION

10.1 Term.

This Agreement shall commence on the date the Software is first used by User and shall continue in effect until terminated as provided herein.

10.2 Termination.

Licensee may terminate this Agreement at any time for its convenience upon written notice to Licensor. This Agreement shall automatically terminate without further action by any party, immediately upon any material breach by Licensee that is not cured within 10-days written notice by Licensor. Notice shall be given by any nationally recognized overnight courier service.

10.3 Effects of Termination.

Upon termination of this Agreement for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except that (a) all obligations that accrued prior to the effective date of termination and any remedies for breach of this Agreement shall survive any termination, (b) Licensee shall promptly return or destroy all Software and other tangible Confidential Information, and permanently erase all Confidential Information from any computer and storage media and (c) the provisions of Sections 6 (Confidentiality), 7 (Proprietary Rights), 8 (Warranty Disclaimers), 9 (Limitation of Liability), 11 (General Provisions) and this Section 10 shall also survive.

11. GENERAL PROVISIONS

11.1 Entire Agreement.

This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. Terms set forth in Licensee’s Purchase Order (or any similar document) that are in addition to or at variance with the terms of this Agreement are specifically waived by Licensee. All such terms are considered to be proposed material alterations of this Agreement and are hereby rejected. No waiver, consent or modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

11.2 Governing Law.

This Agreement shall be governed by and construed in accordance with the laws of Switzerland, without regard to its conflicts of law provisions.

11.3 Remedies.

Unless specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Licensee agrees that, in the event of any breach or threatened breach of Section 4 or 5, Licensor will suffer irreparable damage for which there is no adequate remedy at law. Accordingly, Licensor shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.

11.4 Notices.

Any notice or communication hereunder shall be in writing and either personally delivered and sent via confirmed facsimile or by any nationally recognized overnight courier service. Notices shall be delivered to the address specified by Licensee when the Software was ordered, or to the address above for Licensor, as the case may be, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.

11.5 Assignment.

This Agreement and the rights and obligations hereunder are personal to Licensee, and may not be assigned or otherwise transferred, in whole or in part, without Licensor’s prior written consent. Any attempt to do otherwise shall be void and of no effect. Without Licensee’s consent, Licensor may assign this Agreement to any third party. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties.

11.6 Independent Contractors.

The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

11.7 Basis of Bargain.

EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS ARE MATERIAL BARGAINED-FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT BY EACH PARTY AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY HEREUNDER AND IN THE DECISION TO ENTER INTO THIS AGREEMENT.

11.8 Acknowledgment.

Licensee acknowledges that (a) it has read and understands this Agreement, (b) it has had an opportunity to have its legal counsel review this Agreement, (c) this Agreement has the same force and effect as a signed agreement, (d) Licensor requires identification of the User and Licensee before issuing this license and (e) issuance of this license does not constitute general publication of the Software or any other Confidential Information.