SOFTWARE LICENSE AGREEMENT

THIS AGREEMENT (the "Agreement") is hereby entered into between MaxVal, (the "Licensor") and the party executing this Agreement ("You") under the following terms and conditions:

1. Licensed Program. 

(a)  This is a License Agreement between You and Licensor with respect to Max-PAIR including all its components and extensions (the "Licensed Program") with the accompanying Documentation and any fixes, releases, upgrades, new versions or enhancements that may subsequently be issued to You.  “Documentation” shall mean any description of the Licensed Program’s specifications, features, interface, operating environment, requirements and uses, including any user instructions, installation instructions or other instructional material about the proper operation of the Licensed Program.

2. Certain Preliminary Uses.

The Licensed Program is distributed to you by electronic download or on self-installing media. You will need to install the Licensed Program on properly configured and compatible computer equipment according to the Documentation. You will also need to ensure that no other software or equipment having an adverse impact on the Licensed Program is present.

3. Licensed Operating Environment. 

(a) Operating Environment.  Once You execute this Agreement, have completed activities described in Section 2 ("Certain Preliminary Uses") and provided You pay the applicable License Fees described or referenced in Section 7 ("Price & Payment") when due, You will be deemed granted one (1) non-exclusive operations license(s) for the Licensed Program, in each case to install, store, load, execute and display (collectively, "Use") the Licensed Program on precisely such number of computers and/or platforms (file servers/mail servers) as specified in the Purchase Order and/or the corresponding Invoice (“Licensed Operating Environment”).  The Licensed Program is provided only in machine readable object code form.

(b) Authorized Operators.  The Licensed Program will be operated solely by you or your own employees ("Authorized Operators"). The Authorized Operators may Use the Licensed Program in the Licensed Operating Environment for the beneficial uses described in Section 4 ("Permitted Uses").

4. Permitted Uses. 

Your Authorized Operators may Use the Licensed Program in the Licensed Operating Environment strictly in support of your internal business operations and to process and protect your own data hosted on only those computers for which the Software License has been acquired and paid for (each, a “Permitted Use” and collectively, the “Permitted Uses”).

5. Reservation of Rights. 

(a) Rights to Licensed Program.  The intellectual property rights in the Licensed Program shall at all times remain the exclusive property of Licensor or other owner identified in the Documentation. By executing this Agreement and paying the applicable License Fee, You obtain a limited license to Use the Licensed Program in object code form. You agree not to disassemble, decompile or reverse engineer the Licensed Program. You also agree that any information obtained in violation of this restriction will be confidential and proprietary information automatically and irrevocably deemed assigned to and owned exclusively by the owner of the Licensed Program. You will at all times use due diligence to safeguard and protect all such confidential and proprietary information pertaining to the Licensed Program. You will ensure that all marks, notices or legends pertaining to the origin, identity or ownership of the Licensed Program remain intact and clearly legible.

(b) All Other Rights Reserved.  Except as expressly granted to You under another provision of this Agreement, Licensor reserves to itself and prohibits You (directly or indirectly, in whole or in part) from loaning, renting, leasing, sublicensing or otherwise distributing or operating the Licensed Program to or for the benefit of any third party, and from altering, adapting, translating or preparing any derivative work of the Licensed Program. The foregoing limitation does not prohibit Authorized Operators from making a copy of the Licensed Program for archival purposes or as an essential step in making Permitted Uses of the Licensed Program in the Licensed Operating Environment.

6. Product Support. 

You may receive the following support (“Product Support”) for so long as Licensor or a distributor appointed by Licensor (“Authorized Distributor”) generally offers to the public Hotline Service and Updates for the Licensed Program.
(a) Hotline Service.  You may obtain assistance for error correction and advice on the use and operation of the most current version of the Licensed Program through Licensor's and/or Authorized Distributor’s electronic hotline service (“Hotline Service”) operated during Licensor's (Authorized Distributor’s) published business hours. You will need to provide sufficient information for Licensor (Authorized Distributor) to replicate and diagnose the reported problem. If appropriate, Licensor (Authorized Distributor) shall be provided reasonable access to the Licensed Program via remote dial-in contact, subject to your approval and normal security requirements.

(b) Updates.  You may obtain copies of each revision or update (“Update”) to the Licensed Program and associated Documentation which Licensor generally distributes to the authorized users. The Licensor's designation of an item as a new version or an enhancement rather than an Update shall be conclusive unless clearly erroneous. Updates are available for download from Licensor's designated online system. You agree to install all Updates promptly, since the Licensor will only provide Product Support for the most recent version of the Licensed Program, incorporating all prior Updates.
(a) Certain Conditions.  Licensor shall not be obligated to provide Product Support if:
(i) the reported error was caused by unauthorized changes in Licensed Program source code, program parameters or other user adjustable features,
(ii) the error results from operator error, errors in data or software not supplied by Licensor or use that exceeds the Permitted Use or is not in accordance with the Documentation, or
(iii) the error is in a prior release that was corrected through issuance of an Update that You have not yet installed.

7. Price & Payment.

(a) Price.  You agree to pay Licensor or its Authorized Distributor or his agents the applicable fee (“License Fee”) for each Term of this Agreement, as determined by reference to Licensor's (Authorized Distributor’s) published prices as of the commencement of such Term.  Payment of the License Fee entitles You to Use the Licensed Program in accordance with this Agreement during the corresponding Term of this Agreement for which the License Fee is paid. Any applicable Product Support fees are referenced in Section 6 ("Product Support").
(b) Payment.  Unless otherwise stated on Licensor's (Authorized Distributor’s) invoice, the applicable fees and shipping charges are payable by You promptly upon delivery. You will pay all sales, use, value-added, GST, personal property or other governmental tax or levy associated with this transaction (including interest and penalties imposed thereon) other than taxes based on the net income or profits of Licensor. If you fail to pay any amount when due, your license to Use the Licensed Program will automatically terminate and you will pay all costs of enforcement, including reasonable legal fees.
(c)  No License Fee applies during the trial period as specified by the Licensor.

8. Transfer of License. 

You may not transfer or assign Your rights to the Licensed Program under this Agreement to a third party.

9. Warranties. 

The following provisions are subject to Section 11 ("Limitation of Remedies & Liabilities"). Any warranties are for Your benefit alone, it being agreed they are not assignable and there are no third party beneficiaries of them.
(a) Noninfringement Warranty.  Licensor warrants it has the rights needed to enter into this Agreement and that, to the best of its knowledge and belief, Permitted Use by You of the Licensed Program in the Licensed Operating Environment will not infringe or misappropriate any United States copyright, trademark, patent, or the trade secrets of any third persons. If promptly notified of any claim to the contrary, Licensor shall
(i) defend through litigation or obtain through negotiation Your right to continue using the Licensed Program,
(ii) rework the Licensed Program to make it no infringing while preserving the original functionality, or
(iii) replace the Licensed Program with functionally equivalent software.
 
(b) No Performance Warranty.  Except as provided in this Section, You agree that the Licensed Program and any services are provided strictly on an "as is" basis without any express or implied warranty, guarantee or other assurance of quality, conformity with specifications, reliability or functionality. You accept all risk for the suitability, performance or nonperformance of the Licensed Program. LICENSOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, AND DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.

10. Software Locks.

The Licensor represents and warrants that the Licensed Program may contain any timer, counter, usage meter, lock or similar device (other than security features described in the Documentation)

11. Limitation of Remedies & Liabilities.

The following provisions are a material condition of this Agreement and reflect a fair allocation of risk:
(a) Remedies. 
(i)  You agree that if the Licensor violates any warranty or other provision of this Agreement and Licensor determines that repair or other corrective action is not economically or technically feasible, Your sole and exclusive remedy will be to obtain a refund of License Fees paid by You.
(ii)  You agree that legal remedies alone provide inadequate protection of Licensor's intellectual property rights in the Licensed Program and that, in addition to all other forms of relief available to Licensor, whether by law or otherwise, Licensor shall be entitled to seek and obtain, without necessity of posting bond, specific performance and injunctive and other relief in the event of Your breach or threatened breach of this Agreement.
(b) Liabilities.  YOU AGREE LICENSOR IS NOT LIABLE FOR ANY AMOUNT EXCEEDING THE LICENSE FEES ACTUALLY PAID BY YOU HEREUNDER. IN NO EVENT SHALL LICENSOR BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SAVINGS OR PROFIT, LOST DATA OR BUSINESS INTERRUPTION EVEN IF LICENSOR IS NOTIFIED IN ADVANCE OF SUCH POSSIBILITY). THIS INCLUDES DAMAGES INCURRED BY YOU, YOUR CUSTOMERS OR ANY THIRD PARTY. THIS LIMITATION PROTECTS LICENSOR AND ANY DISTRIBUTOR OR RESELLER FROM WHOM YOU OBTAINED THE LICENSED PROGRAM. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE FOREGOING LIMITATION MAY NOT APPLY TO YOU.

12. Term & Termination.

(a) Generally.  This Agreement shall continue in full force and effect for a period of one (1) year and shall be renewed for additional one-year periods (each one year period, a “Term”) upon payment of the stated License Fee determined in accordance with Section 7, unless terminated earlier in accordance with this or another Section of this Agreement. This Agreement will terminate automatically if You breach any provision of it. You may terminate this Agreement at any time at Your election.
(b) Effect of Termination.  Termination of this Agreement will terminate Your right to possess or Use the Licensed Program. Upon termination for any reason, You agree to destroy the original and all copies of the Licensed Program (including Documentation) and cease all further Use of it.  Sections 5, 9, 11, and 14 shall survive any termination or expiration of this Agreement.

13. Disputes, Choice of Law.

Except for certain injunctive relief authorized under Section 11 ("Limitation of Remedies & Liabilities") which may be brought at any time, the parties agree that all disputes shall be submitted to a single arbitrator under proceedings conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The award of the arbitrator shall include a written explanation of the decision, shall be limited to remedies otherwise available in court and shall be binding upon the parties and enforceable in any court of competent jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE UNITED STATES AND CALIFORNIA, AND ANY ACTION SHALL BE INITIATED AND MAINTAINED IN A FORUM OF COMPETENT JURISDICTION IN SAN JOSE, CALIFORNIA. YOU WILL NOT BRING ANY ACTION AGAINST LICENSOR WITHIN SIX (6) MONTHS AFTER THE CLAIM ARISES, OR SUCH ACTION SHALL BE BARRED.

14. Export Regulations.

The transfer of technology across national boundaries is regulated by the U.S. Government. You agree not to export or re-export the Licensed Program without first obtaining any required export license or governmental approval. You will not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by U.S. regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce. This provision and the assurances made herein shall survive termination of this Agreement.

15. Miscellaneous.

This document constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof and supersedes all other communications, whether written or oral. This document and Your signature entry (acceptance) in electronic form, or a hardcopy duplicate in good form, shall be considered an original document with authenticated signature admissible into evidence unless the document's authenticity is genuinely placed in question. You may issue a purchase order, but any contrary provisions will have no substantive effect on our Agreement. This Agreement may be modified or amended only by a writing signed by an authorized representative of Licensor. It is agreed that sales representatives and distributors of the Licensed Program have no authority to alter this Agreement. Any provision found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect. Waiver of any provision hereof in one instance shall not preclude enforcement of it on future occasions. Headings are for reference purposes only and have no substantive effect.