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End User License for ActiveGraf Software

PLEASE REVIEW THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) CAREFULLY. BY CHECKING THE BOX OR CLICKING THE BUTTON TO CONFIRM YOUR ACCEPTANCE WHEN YOU FIRST INSTALL THE SOFTWARE, YOU CONSENT TO BE BOUND BY AND BECOME A PARTY TO ALL OF THE TERMS OF THIS AGREEMENT.  IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT CHECK THE BOX OR CLICK THE BUTTON AND DO NOT USE THE SOFTWARE.  IF THE SOFTWARE (INCLUDING ACCESS TO THE SOFTWARE FUNCTIONALITY THROUGH LICENSOR’S WEBSITE) IS BEING USED ON BEHALF OF A CORPORATION OR OTHER LEGAL ENTITY, THEN THE TERMS “YOU” AND “LICENSEE” SHALL BE UNDERSTOOD TO REFER TO SUCH LEGAL ENTITY.

Important: This Agreement for ActiveGraf software is a legal agreement between the licensee (“Licensee”) (either an individual or a business or legal entity), as accepted when the Software was first installed, and ActiveGraf, Inc., the licensor (“ActiveGraf”). This Agreement is for the ActiveGraf software that accompanies this Agreement, including any associated media, printed materials and documentation (“Software”). The Software also includes all updates, replacements, revisions, enhancements, additions, conversions, modifications, copies, derivative works, inventions, discoveries, patentable or copyrightable matter, concepts, expertise, techniques, patents, copyrights, trade secrets and other related legal rights of the foregoing items. By checking the box or clicking the button to confirm your acceptance when you first install the Software, using or otherwise accessing the Software in any way, the Licensee agrees to be bound by and becomes a party to the terms of this Agreement. If Licensee does not agree to the terms of this Agreement, Licensee should immediately return the Software and this package to the party from whom Licensee obtained or received it. Licensee should maintain a copy of this license for its records.

Use on a PC. You may install the single registered copy of the Software on one storage device for one computer, and you may access and use the Software at that location so long as only one copy of the Software is in operation. If you are a private business rather than an individual, you may authorize the personnel associated with your business to use the Software, but only one person at a time, on one computer at a time.

Use on a Network. You may store, install and access the registered version of the Software through an internal network; provided that you obtain and pay for a license for each workstation that will access the Software through the network. For instance, if 5 different workstations will access the Software on the network, each workstation must have its own paid-up license, regardless of whether the workstations use the Software at different times or concurrently.

1. License

1.1 General License. Subject to the terms and conditions of the Agreement and provided all license fees have been paid for the Software, ActiveGraf hereby grants to Licensee and Licensee accepts a non-exclusive, non-transferable license during the Term to (i) use the object code version of the Software for its own internal business purposes without the right to sublicense; (ii) use solely with the equipment which the Software is pre-installed, as applicable, or other equipment agreed upon in writing by ActiveGraf; and (iii) practice the inventions protected by ActiveGraf’s patents or pending patent applications and other intellectual property rights.

1.2 Third-Party Software. Some of the Software may be or contain the intellectual property of third-parties. Any third-party terms and conditions that vary from the terms of this Agreement are included and govern the Licensee’s use of the third-party software. ActiveGraf will make best efforts to identify such third-party software and the corresponding intellectual property rights. Licensee’s continuing right to use third-party software and associated documentation is conditioned upon Licensee’s agreement to be bound by any additional terms and conditions relating to the use of such third-party software.

1.3. Restrictions. Licensee may not: (i) modify, change or create any derivative works of the Software or user documentation, including translation or localization; (ii) copy, decompile, disassemble, decrypt, reverse engineer, or otherwise attempt to derive the source code for the Software; (iii) use the Software or user documentation to develop a competing hardware and/or software product; (iv) redistribute, encumber, sell, rent, lease, sublicense, display, publish, disclose or otherwise transfer rights to the Software, in whole or in part, to any other person or entity; (v) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software.

1.4 Performance Monitoring. During the Term, ActiveGraf has the right to monitor license related operating data and performance metrics of the Software for ActiveGraf’s business purposes, including product support, development, and improvement.

1.5 Reservation of Rights. All rights not expressly granted herein are reserved to ActiveGraf.

2. Term and Termination

This Agreement will become effective upon payment of all license fees and the date the Software is first installed and shall continue in full force and effect for a period of twelve (12) months (the “Initial Term”). This Agreement will automatically renew for successive twelve (12) months (each a “Renewal Term”) upon payment of the license fees. This Agreement will immediately terminate for failure to pay the license fees. The Renewal Term(s) together with the Initial Term, are herein collectively referred to as the “Term”. If the Term is renewed, the terms and conditions of this Agreement during each Renewal Term are the same as the terms in effect immediately before the renewal, subject to any change in license fees payable for the Software. Upon termination of this Agreement, Licensee will destroy all copies and extract of the Software and provide written certification to ActiveGraf of such destruction. Without prejudice to any other rights, ActiveGraf may terminate this Agreement immediately upon written notice if Licensee breaches any of its terms and conditions.

3. Ownership and Confidentiality

3.1 Ownership. Licensee acknowledges that ActiveGraf owns and retains all right, title and interest, including but not limited to, all copyright, patent, trade secret rights, moral rights and other intellectual property rights, in and to the Software (and any portions thereof). Licensee shall not have any right, title, or interest to the Software except as provided in this Agreement, and further shall secure and protect the Software consistent with maintenance of ActiveGraf’s proprietary rights therein. Licensee agrees that Licensee shall not contest or challenge, or take any action inconsistent with or that may damage or impair ActiveGraf’s ownership or rights, and further that Licensee shall not contest or challenge, or take any action inconsistent with or that may damage or impair the ownership or intellectual property rights of ActiveGraf or its licensors. Licensee shall not use the Software except as is expressly authorized in this Agreement.

3.2 Confidentiality. Licensee acknowledge that the Software contains valuable trade secrets of ActiveGraf and Licensee agrees to maintain the confidentiality of the Software using at least the same degree of care Licensee would use with Licensee’s own confidential information which shall not be less than a reasonable standard of care under the circumstances. Licensee agrees not to disclose such confidential information to anyone other than Licensee’s employees with a bona fide need to know, which employees shall be governed by a written agreement to confidentiality of equal or greater force.

3.3 Unauthorized Disclosure. Licensee acknowledges that the unauthorized disclosure of such confidential information could cause irreparable harm and significant injury to ActiveGraf which may be difficult to ascertain. Accordingly, Licensee shall indemnify ActiveGraf against any loss and expense arising due to such unauthorized disclosure. Furthermore, Licensee agrees that ActiveGraf shall have the right to obtain an immediate injunction enjoining any such unauthorized disclosure.

4. Disclaimer of Warranty

ACTIVEGRAF MAKES NO WARRANTY OR CONDITION OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE. ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING THOSE OF MERCHANTA¬BILITY, CONDITION, CONFORMITY TO ANY DESCRIPTION, REPRESENTATION OR SPECIFICATION, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PAR-TICULAR PURPOSE, ARE DISCLAIMED AND EXCLUDED BY ACTIVEGRAF.

5. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ACTIVEGRAF OR ITS SUPPLIERS OR DISTRIBUTORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, INABILITY TO STUDY, TEACH OR LEARN, COMPUTER FAILURE OR MALFUNCTION, ANY ALLEGED OR PROVEN INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, ACTIVEGRAF’S ENTIRE LIABILITY TO LICENSEE UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED U.S. $5,000 IN THE AGGREGATE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE.

6. Indemnification

Licensee shall indemnify and hold harmless ActiveGraf from and against all losses, claims, damages or other causes of any nature or kind whatsoever (including reasonable attorney’s fees) arising directly or indirectly out of third-party claims concerning (i) a breach of any of Licensee’s obligations, covenants, representations or warranties contained herein and (ii) the negligence or intentional misconduct of Licensee or Licensee’s officers, employees, agents, representatives, or contractors.

7. General Terms

7.1 Non-Assignment. Licensee may not assign this Agreement or Licensee’s rights and obligations under this Agreement without the prior written consent of ActiveGraf and any such assignment shall be null and void.

7.2 Export. Software, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain such licenses to export, re-export, or import Software. The Software may not be downloaded, or otherwise exported or re-exported into, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nations or the U.S. Commerce Department’s Table of Denial Orders or a country under embargo with the U.S.

7.3 Equitable Relief. Licensee acknowledge that any breach of Licensee’s obligations hereunder with respect to the Software or the confidential information of ActiveGraf will cause ActiveGraf irreparable injury for which it has no adequate remedy at law, and therefore that ActiveGraf will be entitled to seek and obtain equitable relief, including temporary restraining orders and preliminary injunctions, to prevent any unauthorized use of the Software and Confidential Information, in addition to all other remedies available to it under this Agreement or other applicable law.

7.4 Entire Agreement. This Agreement comprises the entire agreement between the parties relating to its subject matter. This Agreement supersedes all prior agreements and understandings, written or oral, express or implied. This Agreement can be amended or modified only by a writing executed in advance by duly authorized representatives of each of the parties hereto. In the event any foreign ministry or other governmental entity or agency makes any changes, deletions or modifications to this Agreement, holds any provision herein unenforceable or imposes any conditions or restrictions on either party to this Agreement which affects its ability to fully perform, ActiveGraf shall have the right to immediately terminate this Agreement. By accepting this Agreement as indicated above, Licensee represent and warrant that all consents, approval or authorizations of third-parties, foreign ministries or any governmental entities or agencies, required as a precondition or otherwise necessary for Licensee to enter into and perform its obligations under this Agreement have been duly obtained.

7.5 Waiver. A waiver of any breach of default of this Agreement shall not create a waiver of the term or of any subsequent breach of default.

7.6 Governing Law; Choice of Venue. The validity of this Agreement and the rights, obligations and relations of the parties hereunder shall be construed and determined under and in accordance with the substantive laws of the State of North Carolina with respect to claims governed by state law and the laws of the United States with respect to claims arising under the laws of the United States, without regard to conflicts of laws principles and excluding the Convention on Contracts for the International Sale of Goods. Any action arising from or relating to this Agreement or the conduct of the parties pursuant hereto shall be commenced and heard solely within a federal or state court of competent jurisdiction found within the boundaries of the United States District Court for the Western District of North Carolina, and ActiveGraf and Licensee each consent to personal jurisdiction and venue in any such court.

7.7 Severability; Force Majeure. Should any term or provision of this Agreement be finally determined by a court of competent jurisdiction to be void, invalid, unenforceable or contrary to law or equity, the offending term shall be modified and limited (or if strictly necessary, deleted) only to the extent required to conform to the requirements of law and the remainder of this Agreement (or, as the case may be, the application of such provisions to other circumstances) shall not be affected thereby but rather shall be enforced to the greatest extent permitted by law. Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.

7.8 Government Use. The Software is provided with restricted rights. The Software and user documentation qualify as “commercial items” as defined at 48 C.F.R. 2.101 and 48 C.F.R. 12.212. All Government users acquire the Software and user documentation with only those rights herein that apply to non-governmental customers. Use of either the Software or user documentation or both constitutes agreement by the Government that the Software and user documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein.

7.9 Controlling Language. The controlling language of this Agreement is English. If Licensee has received a translation into another language, it has been provided for Licensee’s convenience only. The provisions of this Agreement which require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination.

ActiveGraf and its product names and logos are trademarks, or the subject of pending trademark applications, of ActiveGraf.

©2020 ActiveGraf, Inc. and/or its affiliates. All rights reserved.
4852-6154-7098, v. 1

Last Updated: 24 September 2020

Copyright 2020 ActiveGraf Inc. All rights reserved.