Netrifex License Agreement

1.  DEFINITIONS.

Documentation means the user guide, technical specification, help information and other documentation regarding the Software that is delivered to Customer in paper, digital or electronic form.

Effective Date means the date of Customer's Acceptance, as described above.

Software means Proxisoft's proprietary computer program, commonly referred to as "Netrifex", that accompanies this Agreement, including updates thereto, if any, provided by Proxisoft.

2.  LICENSES.

2.1  Trial or Production License. The rights and licenses granted to Customer hereunder shall be either a Trial License (which is the default condition) or a Production License.  A Trial License means that the Term of this Agreement will be for 30 days after the Effective Date, and Customer's usage shall be solely for internal trial use, test and evaluation purposes.  A Production License means that Customer has paid Proxisoft the then current license fee within 30 days after the Effective Date, in which case Customer will be provided a license key that permits the Term of this Agreement to extend for 1 year after the Effective Date.

2.2  Software. During the Term and subject to all terms and conditions in this Agreement, Proxisoft grants to Customer a nonexclusive, nontransferable, nonsublicenseable right and license to use the Software (in executable format) without modification, in accordance with the Documentation, solely for Customer's internal business purposes.

2.3  Documentation. During the Term and subject to all terms and conditions in this Agreement, Proxisoft grants to Customer a nonexclusive, nontransferable, nonsublicenseable right and license to use the Documentation internally, solely in connection with its authorized use of the Software.

2.4  Limitations. The Software is licensed as a single, stand-alone product.  Customer may not separate or use its component parts or combine the Software with any other software.  In addition, Customer agrees that it may use and install the Software only on the particular server identified to Proxisoft, although Customer may use as many copies of the Software as it desires, but only on that same server.  Customer may make one additional copy of the Software for inactive archival purposes.

2.5  License Control. Customer acknowledges that the Software may contain code or require devices that detect or prevent unauthorized use of, or disable, the Software.  For example, without notice or other warning, the Software may not operate after the then current Term.

2.6  Installation. Customer acknowledges that the Software may affect its operating system environment, and Customer accepts the entire risk of installing and using the Software on its system, particularly in a production environment.  Customer is solely responsible for backing-up or otherwise protecting all software, data and other information on its systems prior to installing, using or removing the Software.

2.7  Support. In the case of a Production License, Proxisoft will use commercially reasonable efforts to provide Customer with technical support and maintenance services for the Software in accordance with its usual policies and practices, which may include error analyses, error corrections and/or distributions of updated Software.

2.8  Payments. In the case of a Production License, Customer agrees to pay Proxisoft the then current license fee within 30 days after the Effective Date.  Customer may renew the Production License from year to year by paying the applicable support fee prior to expiration of the then current Term, in which case Customer will be provided a license key that permits the Term of this Agreement to be extended by 1 year.  All amounts due hereunder shall be paid in full (without deduction, set-off or counterclaim) in US dollars at Proxisoft's address or to an account specified by Proxisoft.  Any amount not paid when due shall bear a late payment charge, until paid, at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less.  Customer agrees to reimburse Proxisoft for all costs (including attorneys' fees) incurred in collecting late payments.

3.  PROPRIETARY RIGHTS.

3.1  Customer. Customer shall own all right, title and interest in and to all data and records generated as a result of Customer's authorized use of the Software.

3.2 Confidentiality. The term Confidential Information means all information previously, presently or subsequently disclosed to Customer by or for Proxisoft (including without limitation, all trade secrets, know-how, inventions, developments, software, prices and other financial, business or technical information, and all copies, analyses, abstracts, summaries and derivatives thereof).  The results of Customer's trial use, testing, benchmarking and evaluation of the Software, and all reports and records pertaining thereto, shall be treated as Confidential Information for the purposes of this Section 3.2.  Confidential Information shall not include any information that Customer can demonstrate is generally available to the public without breach of the Agreement.  Except for the specific rights granted by this Agreement, Customer shall not possess, use, publish or disclose any Software or other Confidential Information without Proxisoft's prior written consent.  Customer shall use reasonable care to protect Confidential Information against any unauthorized access, use and disclosure.  Customer shall be liable for any breach of confidentiality by its employees and contractors.  Promptly after any termination of the Agreement or at Proxisoft's request at any time, Customer shall return or destroy all tangible Confidential Information, permanently erase the Confidential Information from all storage media and destroy all information, records and materials developed therefrom.

3.3  Restrictions. Except as specifically permitted in this Agreement, Customer shall not directly or indirectly: (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 use any other means to attempt to discover any source code or underlying ideas, algorithms or organization of the Software (except and only to the extent that these restrictions are expressly prohibited by applicable statutory law); (c) encumber, loan, lease, rent, sublicense, transfer or distribute any Software, or use the Software for the benefit of any third party (e.g., service bureau arrangement); (d) copy, create derivative works of or otherwise modify any Software or Documentation; or (e) permit any third party to do so.  Customer will promptly notify Proxisoft in writing of any unauthorized use, reproduction or distribution of any Software.

3.4  Third Party Code. The Software may operate, interface or be delivered with or include software or other technology that is identified in the Documentation (Third Party Code) and licensed from and owned by third parties (Third Party Licensors).  Customer agrees that it will use Third Party Code in accordance with this Agreement (unless additional or different terms are specified in the applicable license set forth or referenced in the Documentation).  Customer further agrees that the Third Party Licensors (a) make no representations or warranties to Customer concerning the Software, (b) have no obligation or liability to Customer as a result of this Agreement or Customer's use of the Software and (c) are intended third party beneficiaries of this Agreement.

3.5  No Implied Licenses. Except for the limited rights and licenses expressly granted hereunder, no other license is granted (by implication, estoppel or otherwise), no other use is permitted and Proxisoft (and its Licensors) shall retain all rights, title and interests (including all patent rights, copyright rights, trade secret rights and all other intellectual property and proprietary rights) in and to the Software, other Confidential Information and Documentation.  Customer agrees not to take any action inconsistent with such ownership.

3.6  Suggestions. Customer hereby assigns and agrees to assign to Proxisoft all rights, title and interests (including patent rights, copyright rights, trade secret rights and all other intellectual and industrial property rights throughout the world) in and to all improvements or other suggestions related to the Software made by Customer.

3.7  Markings. Customer shall not (and shall not permit any third party to) alter, obscure or remove any patent, trademark or other proprietary or legal notice contained on any Software, Documentation or packaging.

4.  WARRANTY AND DISCLAIMERS.

4.1  Software. Subject to the exclusions set forth in Section 4.2, Proxisoft warrants to Customer that the unaltered Software will operate substantially in conformance with the Documentation for a period of 30 days after the Effective Date.  Any warranty claim under this Section 4.1 must be made in writing to Proxisoft during such 30-day period.  Proxisoft's sole obligation and Customer's exclusive remedy in respect thereof is to use reasonable efforts to repair or replace the Software that Proxisoft determines, in its reasonable judgment, is nonconforming or, at Proxisoft's sole discretion, to accept return of the Software and upon receipt thereof, this Agreement shall terminate and Proxisoft shall refund the amount that Customer paid Proxisoft for the nonconforming Software.

4.2  Exclusions. The foregoing warranty shall not apply in respect of any Trial License, or to any Software that was (a) used in violation of this Agreement, (b) used, handled, operated, maintained or stored improperly, or in any manner not in accord with the Documentation, industry standard practice or Proxisoft's instructions or recommendations or (c) combined, altered, modified or repaired other than by or for Proxisoft.

4.3  Disclaimers. EXCEPT AS EXPRESSLY SPECIFIED HEREIN, THE SOFTWARE, DOCUMENTATION AND SUPPORT SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND.  PROXISOFT DOES NOT WARRANT THAT THE SOFTWARE WILL BE COMPATIBLE WITH ANY CUSTOMER APPLICATION OR ENVIRONMENT OR OTHERWISE MEET CUSTOMER'S REQUIREMENTS, OR THAT OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITSELF AND ITS LICENSORS, PROXISOFT HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, INTEGRATION, ACCURACY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE.

5.  LIMITATION OF LIABILITY.

PROXISOFT (AND ITS LICENSORS) SHALL NOT BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WEHTER 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 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) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE FEES PAID BY CUSTOMER TO PROXISOFT (DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE) FOR THE SOFTWARE GIVING RISE TO SUCH DAMAGES, EVEN IF IT 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.

6.  TERM AND TERMINATION.

6.1  Term. This Agreement shall commence on the Effective Date and, unless terminated as provided herein, this Agreement shall continue in effect until expiration of the applicable Term.

6.2  Termination. Customer may terminate this Agreement at any time, for any reason or no reason, upon at least 30 days prior written notice to Proxisoft.  This Agreement shall automatically terminate without notice or any other further action by either party, immediately upon material breach by Customer of any obligation under this Agreement.

6.3  Infringement. If at any time Proxisoft determines that all or any part of the Software or its use  or operation may infringe any third party's intellectual property rights, then Proxisoft may terminate this Agreement upon written notice to Customer and, in the case of a Production License, after return of the Software, Proxisoft will refund to Customer the depreciated value of the Software (calculated as the license fee paid by Customer to Proxisoft for the then current Term, amortized on a straight-line basis over a 1-year period).  The foregoing states the entire liability of Proxisoft (and its Licensors), and Customer's exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Software, any part thereof or by its use or operation.

6.4  Effects of Termination. Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties hereunder shall cease, except that (a) Customer shall stop using the Software, return or destroy all copies of the Software and permanently erase the Software from all storage media, (b) all obligations that accrued prior to the effective date of termination (including without limitation, payment obligations) and any remedies for breach of this Agreement shall survive any termination and (c) the provisions of Sections 3 (Proprietary Rights), 4 (Warranties and Disclaimers), 5 (Limitation of Liability), 7 (General Provisions) and this Section 6 shall also survive.

7.  GENERAL PROVISIONS.

7.1  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 Customer'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 Customer.  All such terms are considered to be proposed material alternations 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.  This Agreement is in English only, which shall be controlling in all respects.  No version of this Agreement in another language shall be binding or of any effect.

7.2  Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA, without regard to its conflicts of law provisions.  In the event of any conflict between US and foreign laws, rules and regulations, US laws, rules and regulations shall govern.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

7.3  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.  Customer agrees that, in the event of any breach or threatened breach of Section 3 or the scope of any license, Proxisoft will suffer irreparable damage for which there is no adequate remedy at law.  Accordingly, Proxisoft 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.

7.4  Notices. Any notice or communication hereunder shall be in writing and either personally delivered or sent via recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified herein, or at such other address designated in a subsequent notice.  All notices shall be in English, effective upon receipt.

7.5  Assignment. This Agreement and the rights and obligations hereunder are personal to Customer, and may not be assigned or otherwise transferred, in whole or in part, without Proxisoft's prior written consent.  Any attempt to do otherwise shall be void and of no effect.  Without Customer's consent, Proxisoft 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.

7.6  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.

7.7  Government License. If any user of the Software or Documentation is a department, agency or other entity of the US Government, then use, duplication, reproduction, modification, release, disclosure or transfer of the Software and Documentation is restricted in accordance with FAR 12.212 for civilian agencies and DFAR 227.7202 for military agencies.  The Software is commercial computer software and the Documentation is commercial computer software documentation, and their use is further restricted in accordance with the terms of this Agreement.

7.8  Acknowledgment. Customer 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) Proxisoft requires identification of the Customer before issuing this license and (e) issuance of this license does not constitute general publication of the Software, Documentation or any other Confidential Information.