END USER LICENSE AGREEMENT

APPLICATION ACCESS AND USE LICENSE

The Software is licensed to you, not sold to you.  Except for the limited license granted in this Agreement, Licensor and its licensors retain all right, title and interest in the Software, all copies thereof, and all proprietary rights in the Software, including copyrights, patents, trademarks and trade secret rights.

1.    GRANT OF LICENSE.  This Agreement grants you the following rights, as applicable:

1.1.    License.  
During the term of this Agreement, Licensor grants you a nonexclusive, nontransferable, revocable (as permitted herein) license to access and use the Software which will be hosted by Licensor.  


1.2.    Third Party Components.  
The Software and future Enhancements may contain certain third party components (“Third Party Components”) which are provided to you under terms and conditions which are different from this Agreement, or which require Licensor to provide you with certain notices or information.  Your use of each Third Party Component which contains or is accompanied by its own license agreement will be subject to the terms and conditions of such other license agreement, and not this Agreement.  Notwithstanding the foregoing, the following terms and conditions apply to all “Third Party Components”:  (i) all Third Party Components are provided on an “AS IS” basis; (ii) Licensor will not be liable to you or indemnify you for any claims related to the Third Party Components; and (iii) Licensor will not be liable for any direct, indirect, incidental, special, exemplary, punitive or consequential damages with respect to the Third Party Components.  Your sole and exclusive remedy with regard to any defect, claim, or other dispute relating to the Third Party Components is to cease use of such components.

1.3.    Intellectual Property Ownership.  
The Software contains material that is protected by United States copyright and trade secret law, and by international treaty provisions.  All rights not expressly granted to Licensee under this Agreement are expressly reserved by Licensor and its licensors.  Licensee shall not modify, remove or destroy any proprietary markings or confidential legends placed upon or contained within the Software, the Documentation, or any related materials.  All copyrights, patents, trade secrets, trademarks, service marks, trade names, moral rights and other intellectual property and proprietary rights in the Software shall remain the sole and exclusive property of Licensor or its licensors, as applicable.

2.    LIMITATIONS ON LICENSE. 

 The license granted to you in this Agreement is restricted as follows:

2.1.    Limitations on Copying and Distribution.  
You may not copy or distribute the Software except to the extent that copying is necessary to use the Software for purposes set forth herein.  

2.2.    Limitations on Reverse Engineering and Modification.  
You may not reverse engineer, decompile, disassemble, modify or create works derivative of the Software.  You may not alter or modify any disabling mechanism which may be resident in the Software.

2.3.    Sublicense, Rental, and Third Party Use.  
You may not assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the Software, or directly or indirectly permit any third party to use or copy the Software.

2.4.    Proprietary Notices.  
You may not remove any proprietary notices (e.g., copyright and trademark notices) from the Software.  You must reproduce the copyright and all other proprietary notices displayed on the Software on each permitted instance of the Software.

2.5.    Use in Accordance with Documentation.  
All use of the Software shall be in accordance with its then current Documentation.

2.6.    Compliance with Applicable Law. 
You shall be solely responsible for ensuring that your use of the Software is in compliance with all applicable foreign, federal, state and local laws, and rules and regulations.

2.7.    Confidentiality.  
You acknowledge and agree the Software and associated Documentation constitute valuable proprietary and confidential information and intellectual property (collectively, the “Proprietary Information”) of Licensor.  You may not use or disclose the Proprietary Information without Licensor’s prior written consent, except disclosure to and subsequent uses by your need-to-know employees and contractors, if applicable, provided such employees and contractors have executed written agreements restricting use or disclosure of Proprietary Information that are at least as protective as those set forth in this Agreement.  You agree to use at least the same degree of care in protecting the Proprietary Information as you use to protect your own similar information, including your own personally identifiable information, but in no event less than reasonable care.  You acknowledge that due to the unique nature of the Proprietary Information, Licensor will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Proprietary Information.  In addition to any other remedies that may be available in law, in equity or otherwise, Licensor shall be entitled to obtain injunctive relief to prevent such unauthorized use or disclosure.  You shall not use any information or data disclosed by Licensor in connection with this Agreement to contest the validity of any Licensor intellectual property.  Any such use of Licensor’s information and data shall constitute a material, non-curable breach of this Agreement.

3.    WARRANTY DISCLAIMER.  
SOFTWARE IS PROVIDED ON AN “AS AVAILABLE,” “AS IS” BASIS.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR AND ITS LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE.  LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR SHALL CREATE ANY ADDITIONAL LICENSOR WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF LICENSOR’S OBLIGATIONS HEREUNDER.

LICENSOR MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY HARDWARE, PRODUCTS, SOFTWARE, OR PROGRAMMING OBTAINED BY LICENSOR FROM THIRD PARTIES (COLLECTIVELY, THE “THIRD PARTY ITEMS”).  LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE/NON-INFRINGEMENT, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE THIRD PARTY ITEMS.  LICENSOR SHOULD CONSULT THE RESPECTIVE VENDORS/MANUFACTURERS OF THE THIRD PARTY ITEMS FOR WARRANTY AND PERFORMANCE INFORMATION.

THE SOFTWARE MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET.  YOU ACKNOWLEDGE AND AGREE THAT LICENSOR DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT:  (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR DATA, WEB SITES, COMPUTERS, OR NETWORKS.  LICENSOR SHALL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES.  YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF YOUR DATA AND SYSTEMS.

4.    LIMITATION OF LIABILITY. 

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS/LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, INDIRECT DAMAGES, OR ANY OTHER DAMAGES, WHICH SHALL INCLUDE, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOST DATA AND BUSINESS INTERRUPTION, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE).  IN ANY CASE, THE ENTIRE LIABILITY OF LICENSOR AND ITS SUPPLIERS/LICENSORS UNDER THIS AGREEMENT FOR ALL DAMAGES OF EVERY KIND AND TYPE (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL BE LIMITED TO THE INITIAL LICENSE FEE PAID BY YOU, IF ANY, FOR THE SOFTWARE.