Tanvas.TanvasTouch 5.0.5 License Info

Tanvas.TanvasTouch 5.0.5

# TanvasTouch® SDK End User License Agreement

This End User License Agreement (the “Agreement”), is a legal and enforceable
agreement between Tanvas, Inc. a Delaware Corp. (“Licensor”) and You
(“Licensee” or “You”) for limited use of certain Software that operates with
the Product.

BY CLICKING THE “ACCEPT” BUTTON/CHECKING “ACCEPT” WHEN YOU INSTALL THE
SOFTWARE, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY
BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF
AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF
LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY,
YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF
OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF YOU DO NOT AGREE TO ALL OF THESE
TERMS, DO NOT CHECK THE BOX OR CLICK THE BUTTON AND/OR DO NOT USE, COPY OR
INSTALL THE SOFTWARE, AND UNINSTALL THE SOFTWARE FROM ALL DEVICES THAT YOU OWN
OR CONTROL.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR LICENSEE’S
ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED
WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE UNDER THIS AGREEMENT, AND THIS
AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE
DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF
LICENSOR’S SOFTWARE.

## 1. Definitions

For purposes of this Agreement, the following terms have the following meanings:

* “Account” means an arrangement by which an Authorized User is given
  personalized access to the Software by creating a username and password. 
* “Authorized Users” means solely those individuals who have created an Account
  and are authorized to use the Software pursuant to the license granted under
  this Agreement. 
* “Data Services” means services available through the Internet made available
  to You for the use of the Product or Software that provide and permit the
  access, collection, storage, processing, analysis and/or transmission of data
  generated by the Product or Software. 
* “Documentation” means user manuals, technical manuals, and any other
  materials provided by Licensor, in printed, electronic, or other form, that
  describe the installation, operation, use, or technical specifications of the
  Software or the Product. 
* “Equipment Agreement” means that certain Equipment Lease or Equipment Sale
  and Purchase Agreement, as applicable, by and between Equipment vendor and
  Licensee, whereby Licensee purchased or leased the Product.
* “Intellectual Property Rights” means any and all registered and unregistered
  rights granted, applied for, or otherwise now or hereafter in existence under
  or related to any patent, copyright, mask works, trademark, trade secret,
  database protection, or other intellectual property rights laws, and all
  similar or equivalent rights or forms of protection, in any part of the
  world.
* “Licensee” has the meaning set forth in the preamble.
* “Licensor” has the meaning set forth in the preamble.
* “Person” means an individual, corporation, partnership, joint venture,
  limited liability company, governmental authority, unincorporated
  organization, trust, association, or other entity.
* “Privacy Policy” has the meaning set forth in Section 3(p).
* “Product” means the MIMO 10.1” Vue Display with TanvasTouch® under the
  Equipment Agreement.
* “Software” means one copy of the object code for which Licensee is purchasing
  a license for use with a single Product, as expressly set forth in this
  Agreement.
* “Term” has the meaning set forth in Section 9(a).
* “Third Party” means any Person other than Licensee or Licensor.
* “Update” has the meaning set forth in Section 6.
* “You” means Licensee and Authorized Users.

## 2.  License Grant and Scope

Subject to and conditioned upon Licensee’s strict compliance with all terms
and conditions set forth in this Agreement, the TanvasTouch® Brand Identity
Guidelines (Exhibit 1) and the Equipment Agreement, Licensor hereby grants to
Licensee a non-exclusive, non-transferable, non-sublicensable, limited license
(the “License Grant”) for Authorized Users to use the Software during the Term
in the manner prescribed in the Documentation and pursuant to the Equipment
Agreement.  Licensor also hereby grants to Licensee a License Grant for
Authorized Users to use the TanvasTouch trademark only in strict compliance
with this Agreement and the TanvasTouch® Brand Identity Guidelines. No other
rights to Licensor’s trademarks are granted herein nor is any good will
transferred to You by use of the TanvasTouch trademark. You may install the
Software in accordance with the Documentation  on the device or Product covered
in the Equipment Agreement, and You shall only create a single Account and use
only the assigned Account log-in information to access the Software. You may
only copy the Software for backup or archival purposes.

## 3.  Use Restrictions

You shall not directly or indirectly:

(a) use (including make any copies of) the Software, Product, or Documentation
beyond the scope of the License Grant under Section 2  or use the Software,
Product or Documentation without following the TanvasTouch® Brand Identity
Guidelines;

(b) provide any other Person, including any subcontractor, independent
contractor, affiliate, or service provider of Licensee, with access to or use
of the Software, Product, Account(s), or Documentation; or to use or disclose
Your Account log-in information to a third party or for the benefit of a third
party and You shall maintain as confidential Your Account log-in information;

(c) create an Account for any Person other than for the Authorized User or use
or attempt to use an Account of another Authorized User;

(d) modify, translate, adapt or otherwise create derivative works or
improvements, whether or not patentable, of the Software, Product, or
Documentation or any part thereof;

(e) reverse engineer, disassemble, decompile, or decode the Software or
Product, or otherwise attempt to derive or gain access to the source code of
the Software or any part thereof;

(f) develop, support or use software, devices, scripts, robots, or any other
means or processes (including crawlers, browser plugins and add-ons, or any
other technology or manual work) to scrape the Software or otherwise copy
profiles and other data from Accounts;

(g) remove, delete, alter, or obscure any trademarks or any copyright,
trademark, patent, or other intellectual property or proprietary rights notices
provided on or with the Software, Product, or Documentation, including any copy
thereof or otherwise violate the TanvasTouch® Brand Identity Guidelines
(Exhibit 1) that are hereby incorporated in this Agreement;

(h) except as expressly set forth in Section 2, copy the Software or
Documentation, in whole or in part;

(i) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer,
or otherwise make available any features or functionality of the Software or
Product, to any Third Party for any reason, whether or not over a network or on
a hosted basis, including in connection with the internet or any web hosting,
wide area network (WAN), virtual private network (VPN), virtualization,
time-sharing, service bureau, software as a service, cloud, or other technology
or service;

(j) use the Software, Product, or Documentation in, or in association with, the
design, construction, maintenance, or operation of any commercial systems, or
hazardous environments or systems, including:
    (i) power generation systems;
    (ii) aircraft navigation or communication systems, air traffic control
    systems, or any other transport management systems; and
    (iii) safety-critical applications, including medical or life-support
    systems, vehicle operation applications, or any police, fire, or other
    safety response systems.

(k) use the Software, Product, or Documentation in violation of any law,
regulation, or rule;

(l) use the Product, Software or Documentation to develop a competing hardware
and/or software product, or otherwise in any manner not set forth in this
Agreement or Documentation;

(m) if the Software includes firmware, copy, access or manipulate the firmware,
use the firmware on a multi-user system or operate it separately from the
Product onto which it is embedded;

(n) disclose information that you do not have the consent to disclose (such as
confidential information of others); or

(o) imply or state that Licensee is affiliated with or endorsed by Licensor
without Licensor’s express consent.

(p) You understand that Licensor is not a healthcare professional and does not
provide medical, health, treatment, diagnosis or other professional services or
advice, is not licensed or endorsed by any governmental or professional
organization nor does Licensor verify the accuracy of Personal Information (as
such term is defined in the Privacy Policy, a copy of which can be found on our
website and which may be amended, supplemented or restated from time to time
(the “Privacy Policy”)). Our Software and Product are not replacements for
proper medical care, diagnosis and treatment, and are not intended to be
medical devices, diagnosis or treatment.  You agree that You are solely
responsible for obtaining proper treatment for Your health conditions. You may
provide the information and reports received from Data Services to Your
healthcare providers at Your own responsibility, understanding that the
Software and Data Services are provided without warranty except as required by
law or as otherwise expressly set forth in this Agreement.

## 4.  Responsibility for Use of Software

Licensee is responsible and liable for all actions and failures to take
required actions with respect to the Software, Product and Documentation by its
Authorized Users or by any other Person to whom Licensee or an Authorized User
may provide access to or use of the Software, Product and/or Documentation,
whether such access or use is permitted by or in violation of this Agreement.

## 5.  Compliance Measures

(a) On Licensor’s written request, Licensee shall conduct a review of its and
its Authorized Users use of the Software and Product, and certify to Licensor
in a written instrument signed by Licensee or an authorized officer of Licensee
that it is in full compliance with this Agreement and the TanvasTouch® Brand
Identity Guidelines or, if Licensee discovers any noncompliance:
    (i) Licensee shall immediately remedy such noncompliance and provide
    Licensor with written notice thereof. Licensee shall provide Licensor with
    all access to the Product and all Authorized User Accounts and assistance
    as Licensor requests to further evaluate and remedy such noncompliance.
    (ii) If Licensee’s use of the Software exceeds the number Authorized Users
    or Accounts permitted under the license, Licensor shall have the remedies
    set forth in Section 5(c).

(b) During the Term at any time, Licensor may, in Licensor’s sole discretion,
audit Licensee’s use of the Software and Product to ensure Licensee’s
compliance with this Agreement and the TanvasTouch® Brand Identity Guidelines.
Licensor shall provide 10-business days prior notice to any audit. The Licensee
shall fully cooperate with Licensor’s personnel conducting such audits and
provide all reasonable access requested by the Licensor to records, systems,
equipment, information, marketing materials, websites and personnel, including
machine IDs, serial numbers, and related information. Licensor shall only
examine information directly related to the Licensee’s use of the Software and
Product.  Licensor may conduct audits only during Licensee’s normal business
hours and in a manner that does not unreasonably interfere with the Licensee’s
business operations.

(c) If the Licensor determines that the Licensee’s use of the Software or
Product exceeds or exceeded the use permitted by this Agreement then:
    (i) Licensor may charge a non-compliance fee to Licensee; or
    (ii) Licensor may terminate the Agreement and the License Grant granted in
    Section 2 effective immediately upon written notice to Licensee.

## 6.  Upgrades and Updates

Licensor, at its sole discretion may provide updates, upgrades, bug fixes,
patches, and other error corrections (collectively, “Updates”) to the Software
and Product free of charge for the Licensee. Licensee agrees that Licensor has
no obligation to develop any Updates at all or for particular issues. Licensee
further agrees that all Updates will be deemed Software or Product, and related
documentation will be deemed Documentation, all subject to all terms and
conditions of this Agreement and the Equipment Agreement. Licensee acknowledges
that Licensor may provide some or all Updates via download from a website
designated by Licensor and that Licensee’s receipt thereof will require an
internet connection, which connection is Licensee’s sole responsibility.
Licensor has no obligation to provide Updates via any other media.

## 7.  Collection and Use of Information

By using Licensor’s Products and Software or providing us with your personal
information, You are accepting and consenting to the practices, terms and
conditions described in the Privacy Policy. At all times your information will
be treated in accordance with the Licensor’s Privacy Policy, which is
incorporated by reference into this Agreement and can be viewed on Licensor’s
website. You acknowledge and agree that Data Services are not a substitute for
regular monitoring and medical care, and that You will ensure that all
appropriate treatment, attention and efforts are made by and for your benefit
to maintain your health and wellness, and the health and wellness of the
Authorized Users. Our collection, storage and transmission of User Data (as
such term is defined in the Privacy Policy) and any other information that you
provide to us through the Data Services and Software is governed by the Privacy
Policy.

## 8. Intellectual Property Rights

Licensee acknowledges and agrees that the Software and Documentation are
licensed, not sold, to Licensee. Licensee does not acquire any ownership
interest in the Software or Documentation under this Agreement, or any other
rights thereto, other than to use the same in accordance with the License Grant
and subject to all terms, conditions, and restrictions under this Agreement.
Licensor reserves and shall retain its entire right, title, and interest in and
to the Software and all Intellectual Property Rights arising out of or relating
to the Software, except as expressly granted to the Licensee in this Agreement.
Licensee shall use commercially reasonable efforts to safeguard all Software
including all copies thereof from infringement, misappropriation, theft,
misuse, or unauthorized access. Licensee shall promptly notify Licensor if
Licensee becomes aware of any infringement of the Licensor’s Intellectual
Property Rights in the Software and fully cooperate with Licensor in any legal
action taken by Licensor to enforce its Intellectual Property Rights.

## 9.  Term and Termination

(a) This Agreement and the license granted hereunder shall commence on the
execution date hereof and shall end on the one year anniversary of execution of
this Agreement, or until otherwise terminated as set forth herein (the “Term”).

(b) Licensor may terminate this Agreement, effective upon written notice to
Licensee, if You materially breach this Agreement and such breach: (i) is
incapable of cure; or (ii) being capable of cure, remains uncured fifteen (15)
business days after Licensor provides written notice thereof.

(c) Licensor may terminate this Agreement, effective immediately, if Licensee
files, or has filed against it, a petition for voluntary or involuntary
bankruptcy or pursuant to any other insolvency law, makes or seeks to make a
general assignment for the benefit of its creditors or applies for, or consents
to, the appointment of a trustee, receiver, or custodian for a substantial part
of its property.

(d) Licensor may terminate this Agreement, effective immediately, if Licensee
has breached any material term of the Equipment Agreement or is in Default (as
such term is defined in the Equipment Agreement) under the Equipment Agreement.

(e) Upon expiration or termination of this Agreement, the License Grant
hereunder shall also terminate, and You shall cease using and destroy all
copies of the Software and Documentation. In addition, upon expiration or
termination of this Agreement, the applicable Equipment Agreement shall also
terminate and to the extent that the Equipment Agreement is an Equipment Lease
Agreement, You shall immediately return the Equipment, in good and functioning
condition. No expiration or termination of this Agreement shall impact Your
obligations under Sections  5, 10, 11, 12 and 13 hereof.

## 10.  Limited Warranties, Exclusive Remedy, and Disclaimer

(a) With respect to Software, Licensor warrants that, for a period of one year
    following the execution date hereof:
    (i) any media on which the Software is provided will be free of material
    damage and defects in materials and workmanship under normal use; and
    (ii) the Software will substantially contain the functionality described in
    the Documentation, and when properly installed on a computer meeting the
    specifications set forth in, and operated in accordance with, the
    Documentation, will substantially perform in accordance therewith.

(b) The warranties set forth in Section 10(a)(i) and Section 10(a)(ii) will not
apply and will become null and void if Licensee materially breaches any
material provision of this Agreement, or if Licensee, any Authorized User, or
any other Person provided access to the Software and Product by Licensee or any
Authorized User, whether or not in violation of this Agreement:
    (i) installs or uses the Software or Product on or in connection with any
    hardware or software not specified in the Documentation or expressly
    authorized by Licensor in writing;
    (ii) modifies, tampers with, or damages the Software or Product, or the
    media on which it is provided, including abnormal physical or electrical
    stress; or
    (iii) misuses the Software or Product, including any use of the Software
    other than as specified in the Documentation or expressly authorized by
    Licensor in writing.

(c) If, during the period specified in Section 10(a), any Software fails to
perform substantially in accordance with the Documentation, and such failure is
not excluded from warranty pursuant to the Section 10(b), Licensor will,
subject to Licensee’s promptly notifying Licensor in writing of such failure,
at its sole option, repair or replace the Software, provided that Licensee
provides Licensor with all information Licensor requests to resolve the
reported failure, including sufficient information to enable the Licensor to
recreate such failure.  If Licensor repairs or replaces the Software, the
warranty will continue to run from the initial date specified herein, and not
from Licensee’s receipt of the repair or replacement. The remedies set forth in
this Section 10(c) are Licensee’s sole remedies and Licensor’s sole liability
under the limited warranty set forth in Section 10(a).

(d)	EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 10(a), THE
SOFTWARE, DOCUMENTATION, AND PRODUCT ARE PROVIDED TO LICENSEE “AS IS” AND WITH
ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT
PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF
ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS,
EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR
OTHERWISE, WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, AND PRODUCT INCLUDING
ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF
DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO
THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO
REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE’S
REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY
OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT
INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE,
OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

YOUR USE OF THE SOFTWARE, PRODUCT AND RELATED PROGRAMS AND DOCUMENTATION IS AT
YOUR OWN RISK AND DISCRETION. YOU ARE SOLELY RESPONSIBLE FOR (AND LICENSOR
DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, CAUSED BY THE USE, MISUSE,
ALTERATION OR OTHERWISE OF THE SOFTWARE, PRODUCT AND RELATED PROGRAMS AND
DOCUMENTATION EXCEPT AS EXPRESSLY SET FORTH FOR THE LIMITED PERIOD IN SECTION
11(a) HEREOF. YOU ARE RESPONSIBLE FOR COMPLYING WITH ANY SAFETY WARNINGS AND
PRECAUTIONS THAT ACCOMPANY THE PRODUCT. IF YOU ARE NOT COMFORTABLE WITH USING
THE PRODUCT AFTER READING THE SAFETY WARNINGS, YOU MUST RETURN THE PRODUCT TO
YOUR PLACE OF PURCHASE AND STOP USING THE SOFTWARE. LICENSOR IS NOT RESPONSIBLE
FOR (I) YOUR FAILURE TO FOLLOW SAFETY WARNINGS, PRECAUTIONS OR ANY OTHER
INSTRUCTIONS PROVIDED WITH THE PRODUCT AND/OR SOFTWARE, (II) YOUR NEGLIGENCE IN
USE OF THE PRODUCT AND/OR SOFTWARE, OR (III) YOUR INTENTIONAL MISUSE OF THE
PRODUCT OR SOFTWARE.

It is your responsibility to back up your system, including without limitation,
any material, information or data that you may use or possess in connection
with the Product or Software, and Licensor shall have no liability for your
failure to back up your system or any material, information or data.

## 11.  Limitation of Liability

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:

(a) IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR
RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY THIRD PARTY
FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST
REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR
GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM
SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER,
READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT
INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY
INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE
FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.  

(b) IN NO EVENT WILL LICENSOR’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR
THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE
LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER,
UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED TEN PERCENT
(10%) OF THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT FOR
THE SOFTWARE THAT IS OR ARE THE SUBJECT OF THE CLAIM.

(c) THE LIMITATIONS SET FORTH IN SECTION 11(a) AND SECTION 11(b) SHALL APPLY
EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL
PURPOSE.

## 12.  Indemnity

Licensee will unconditionally indemnify and defend Licensor, its affiliates,
and their officers, directors, employees, contractors and agents (each a
“Licensor Indemnified Party”) against any claims, liabilities and expenses
(including court costs and reasonable attorney fees) that a Licensor
Indemnified Party incurs as a result of or in connection with:

(a) any third-party claims arising from:
    (i) Licensee’s failure to obtain any consent, authorization, or license
    required for use of the Software or Product under this Agreement;
    (ii) Your use of the Software or Product in a manner not expressly
    permitted under this Agreement;
    (iii) Licensee’s compliance with any technology, designs, instructions, or
    requirements provided by the Licensee or a Third Party on Licensee’s
    behalf;
    (iv) any claims, costs, damages, and liabilities whatsoever asserted by any
    Authorized Users or Persons; or
    (v) any violation by You of applicable laws; and

(b) any reasonable costs and attorneys’ fees required for Licensor to respond
to a subpoena, court order, or other official government inquiry regarding Your
use of the Software or Product.

## 13.  Arbitration; Waiver of Classwide Claims

(a) GENERALLY, SUBJECT TO SECTION 14(a) BELOW, LICENSEE AND LICENSOR EACH
ACKNOWLEDGE AND AGREE THAT ANY CLAIM, DISPUTE OR CONTROVERSY BETWEEN LICENSEE
AND LICENSOR ARISING OUT OF OR RELATING TO (1) THIS AGREEMENT, INCLUDING THE
VALIDITY OF THIS SECTION, AND (2) LICENSEE’S USE OF SOFTWARE AND/OR PRODUCT(S)
UNDER THIS AGREEMENT (COLLECTIVELY, THE “DISPUTE”) SHALL BE RESOLVED, AT
LICENSOR’S SOLE ELECTION, EITHER BY JUDICIAL RESOLUTION OR EXCLUSIVELY AND
FINALLY BY BINDING ARBITRATION. LICENSEE UNDERSTANDS THAT WITHOUT THIS
PROVISION LICENSEE WOULD HAVE HAD A RIGHT TO LITIGATE A DISPUTE THROUGH A COURT
BEFORE A JURY OR JUDGE, AND THAT LICENSEE HAS EXPRESSLY AND KNOWINGLY WAIVED
THOSE RIGHTS AND AGREES INSTEAD TO RESOLVE ANY DISPUTES THROUGH BINDING
ARBITRATION IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION.

(b) ARBITRATION PROCEDURES AND FEES. IF ARBITRATION IS THE MEANS OF RESOLUTION
SELECTED BY LICENSOR IN ITS SOLE DISCRETION, PRIOR TO SUBMITTING A CLAIM FOR
ARBITRATION, EITHER PARTY SHALL FIRST NOTIFY THE OTHER PARTY TO TRY TO RESOLVE
THE DISPUTE. IF THE DISPUTE IS NOT RESOLVED WITHIN 60 DAYS OF SUCH
NOTIFICATION, THEN THE CLAIM WILL BE SUBMITTED FOR ARBITRATION. THE ARBITRATION
OF ANY DISPUTE OR CLAIM SHALL BE CONDUCTED IN ACCORDANCE WITH THE THEN CURRENT
AND APPLICABLE RULES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) AS
MODIFIED BY THIS AGREEMENT. THE ARBITRATION SHALL OCCUR BEFORE A SINGLE
ARBITRATOR IN CHICAGO, ILLINOIS, WHO MUST BE AN ATTORNEY WITH AT LEAST FIVE
YEARS OF EXPERIENCE IN SOFTWARE ENGINEERING OR DEVELOPMENT. ANY DECISION OR
AWARD BY THE ARBITRATOR RENDERED IN AN ARBITRATION PROCEEDING SHALL BE FINAL
AND BINDING ON EACH PARTY, AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF
COMPETENT JURISDICTION. ANY AWARD BY THE ARBITRATOR RENDERED IN AN ARBITRATION
PROCEEDING ENTERED SHALL NOT EXCEED THE AMOUNT ON THE EQUIPMENT AGREEMENT. IF
EITHER PARTY BRINGS A DISPUTE IN A COURT OR OTHER NON-ARBITRATION FORUM, THE
ARBITRATOR OR JUDGE MAY AWARD THE OTHER PARTY ITS REASONABLE COSTS AND EXPENSES
(INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES) INCURRED IN ENFORCING COMPLIANCE
WITH THIS BINDING ARBITRATION PROVISION, INCLUDING STAYING OR DISMISSING SUCH
DISPUTE. ANY ARBITRATION SHALL BE CONFIDENTIAL, AND NEITHER LICENSEE, NOR
LICENSOR NOR THE ARBITRATOR MAY DISCLOSE THE EXISTENCE, CONTENT OR RESULTS OF
ANY ARBITRATION, EXCEPT AS MAY BE REQUIRED BY LAW OR FOR PURPOSES OF
ENFORCEMENT OR APPEAL OF THE ARBITRATION AWARD. JUDGMENT ON ANY ARBITRATION
AWARD MAY BE ENTERED IN ANY COURT HAVING PROPER JURISDICTION. IF ANY PORTION OF
THIS ARBITRATION CLAUSE IS DETERMINED BY A COURT TO BE INAPPLICABLE OR INVALID,
THEN THE REMAINDER SHALL STILL BE GIVEN FULL FORCE AND EFFECT.

(c) WAIVER OF CLASSWIDE CLAIMS; SMALL CLAIMS COURT. NEITHER LICENSEE NOR
LICENSOR SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR
AGAINST OTHER CONSUMERS OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER
OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. LICENSEE UNDERSTANDS THAT
WITHOUT THIS PROVISION LICENSEE MAY HAVE HAD A RIGHT TO ARBITRATE A DISPUTE ON
A CLASSWIDE OR REPRESENTATIVE BASIS, AND THAT LICENSEE HAS EXPRESSLY AND
KNOWINGLY WAIVED THOSE RIGHTS AND AGREE INSTEAD TO ARBITRATE ONLY YOUR OWN
DISPUTE(S) IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION. NOTWITHSTANDING
THE ABOVE AGREEMENT TO ARBITRATE DISPUTES, LICENSEE AND LICENSOR EACH
ACKNOWLEDGE AND AGREE THAT EITHER PARTY MAY, AS AN ALTERNATIVE TO ARBITRATION,
BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT TO RESOLVE A DISPUTE, SO LONG
AS SUCH SMALL CLAIMS COURT DOES NOT PROVIDE FOR OR ALLOW FOR JOINDER OR
CONSOLIDATION OF CLAIMS.

## 14.  General Provisions

(a) Except for individual small claims actions which can be brought in any
small claims court where jurisdiction and venue are proper, all matters arising
out of or relating to this Agreement shall be governed by and construed in
accordance with the internal laws of the State of ILLINOIS without giving
effect to any choice or conflict of law provision or rule. Any arbitration,
legal suit, action, or proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby shall, in the event that Licensor, in
its sole discretion, has chosen to have disputed matters resolved by judicial
determination, be exclusively instituted in the federal courts of the United
States of America or the courts of the State of ILLINOIS in each case located
in the City of Chicago and County of Cook and each party irrevocably submits to
the exclusive jurisdiction of such courts in any such legal suit, action, or
proceeding. However, for a dispute of $10,000 or less, Licensee may choose
whether the arbitration proceeds in person, by telephone, or based only on
submissions.  Service of process, summons, notice, or other document by mail to
such party’s address set forth herein shall be effective service of process for
any suit, action, or other proceeding brought in any such court.

(b) Licensor will not be responsible or liable to Licensee, or deemed in
default or breach hereunder by reason of any failure or delay in the
performance of its obligations hereunder where such failure or delay is due to
strikes, labor disputes, civil disturbances, riot, rebellion, invasion,
epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts
of God, flood, fire, sabotage, fluctuations or non-availability of electrical
power, heat, light, air conditioning, or Licensee equipment, loss and
destruction of property, or any other circumstances or causes beyond Licensor’s
reasonable control.

(c) This Agreement, together with the Equipment Agreement, and all other
documents that are incorporated by reference herein, constitutes the sole and
entire agreement between Licensee and Licensor with respect to the subject
matter contained herein, and supersedes all prior and contemporaneous
understandings, agreements, representations, and warranties, both written and
oral, with respect to such subject matter.

(d) Licensee shall not assign or otherwise transfer any of its rights, or
delegate or otherwise transfer any of its obligations or performance, under
this Agreement, in each case whether voluntarily, involuntarily, by operation
of law, or otherwise, without Licensor’s prior written consent, which consent
Licensor may give or withhold in its sole discretion. No delegation or other
transfer will relieve Licensee of any of its obligations or performance under
this Agreement. Any purported assignment, delegation, or transfer in violation
of this Section 14(d) is void. Licensor may freely assign or otherwise transfer
all or any of its rights, or delegate or otherwise transfer all or any of its
obligations or performance, under this Agreement without Licensee’s consent.
This Agreement is binding upon and inures to the benefit of the parties hereto
and their respective permitted successors and assigns.

If any term or provision of this Agreement is invalid, illegal, or
unenforceable in any jurisdiction, such invalidity, illegality, or
unenforceability shall not affect any other term or provision of this Agreement
or invalidate or render unenforceable such term or provision in any other
jurisdiction.