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REDISTRIBUTION NOT PERMITTED License Grant Prospect hereby grants to Licensee limited, non-transferable, royalty-free, non-exclusive, non-sublicensable license to use Prospect's Product on the number of devices for which Licensee has paid the applicable fee. No right to further sublicense or otherwise distribute the Product to others is granted. Use Restrictions Licensee may not: (i) use the Product, except under the terms listed above; (ii) modify, translate, reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or discover the source code from the binaries of the Product; (iii) create derivative works based on the Product (e.g. incorporating the Product in a commercial product or service without a proper license); (iv) copy the Product (except for one emergency or back-up copy per license that Licensee has paid for); (v) rent, lease, sublicense, convey, distribute or otherwise transfer rights to the Product; (vi) remove any product identification, copyright, proprietary notices or labels from the Product; or (viii) use any Prospect trademarks in any manner other than their presence within Licensee’s copy of the Product without written permission of Prospect. Any and all copies made by Licensee as permitted hereunder must contain all of the original Prospect Product's copyright, trademark and other proprietary notices and marks. Product Changes Prospect reserves the right at any time not to release or discontinue releases on any Product and to alter prices, features, specification, capabilities, functions, licensing terms, release dates, general availability or other characteristics of future Product versions. Assignment Neither party shall transfer or assign any of its rights or delegate any of its obligations in whole or in part, whether voluntarily or by operation of law, without the prior written consent of the other party, which shall not be unreasonably withheld. Any purported transfer, assignment, or delegation by either party without such prior written consent shall be null and void ab initio and of no force or effect. Notwithstanding the foregoing, without securing such prior consent, either party may assign this Agreement and its rights and obligations in whole or in part to any successor of such first party by way of business line spin-off, merger, consolidation, or the acquisition of substantially all of such party’s business and relating assets, provided that such successor is not a direct competitor of the other party. Disclaimer Of Warranties This Product is provided "AS IS", with NO WARRANTIES whatsoever, whether express or implied or statutory, and specifically EXCLUDING the WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, and NONINFRINGEMENT. Prospect does not warrant that either the Product or the documentation is complete, correct, accurate, reliable, or error free. The entire risk of the performance of the Product and its results, including sufficiency of security mechanisms and freedom from infringement of third party patent, copyright, and trade secret rights are borne exclusively by Licensee. SOME JURISDICTIONS DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED OR LIMITED IN DURATION, AND TO THAT EXTENT THE ABOVE DISCLAIMER MAY NOT APPLY TO LICENSEE. FURTHER, LICENSEE MAY HAVE LEGAL RIGHTS WHICH VARY BY JURISDICTION. Title Subject to the limited, non-transferable, non-exclusive license granted to Licensee above, all rights, title, and interests including patent, copyright, and trade secret rights in the Product are and shall remain exclusively in Prospect. Licensee shall maintain and shall not remove any copyright notices or other proprietary rights notices contained in Product or Documentation. Limitation of Liability Prospect shall NOT BE LIABLE under this Agreement FOR any INDIRECT, INCIDENTAL, SPECIAL, or CONSEQUENTIAL DAMAGES, whether for loss of profit, loss of use, loss of good will, disruption of business, computer down time, or cost to recover. Further, Prospect's liability under this Agreement for any cause of action, whether in contract, or tort including negligence, shall not exceed the total amounts received by Prospec tunder this Agreement. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTIAL OR CONSEQUENTIAL DAMAGES, AND TO THAT EXTENT THE ABOVE LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. Term This Agreement shall commence upon Licensee's acceptance of its terms, and shall continue in perpetuity, unless sooner terminated as provided below. Termination This Agreement automatically terminates immediately and automatically without notice if Licensee breaches any of the terms of this agreement. Upon termination, Licensee will remove all copies of the Product or any part of the Product from any and all computer storage devices (including but not limited to handheld/smartphone devices, desktop, laptop and server computers) and destroy the product. At Prospect’s request, Licensee will certify in writing to Prospect that all whole and partial copies and derivatives of the Product in any and all forms in Licensee's possession or under Licensee's control have been destroyed or returned and that none remain in Licensee’s possession. Prospect may terminate this license if Licensee files a petition seeking bankruptcy protection, has an involuntary bankruptcy petition filed against it, has a receiver appointed or otherwise declares its inability to maintain its business or pay its debts as they become due, unless such is dismissed within ninety (90) days of the original filing. Export NEITHER THE PRODUCT, NOR ANY WHOLE OR PARTIAL COPY OF THE PRODUCT IN ANY FORM, MAY BE EXPORTED FROM THE UNITED STATES OF AMERICA TO ANY OF THE FOLLOWING NATIONS: Cuba, Iran, Syria, Sudan, North Korea, and any countries on the United States embargoed list. Licensee agrees that the Product including accompanying Documentation, and any direct product thereof, will not be exported, imported, or re-exported except as authorized by the terms of this Agreement, and as authorized and permitted by the laws and regulations of both the United States of America and the country into which Licensee downloads the Product For further information on who may download and import the Product from the US, please visit the web site of the Bureau of Industry and Security of the US Department of Commerce at http://www.bis.doc.gov. Information on regulations and Prospect’s semi-annual reporting requirements to BIS may be found at http://www.bis.doc.gov/Encryption/regs.htm Note also that the country into which you desire to download the Product may have additional restrictions on the possession and use of encryption and/or encrypted Product, and may require approval and recordation of this Agreement before the Product may be downloaded. Rights of the Government of the United States The Product provided under this Agreement is commercial computer software developed exclusively at private expense, and in all respects is proprietary data belonging solely to Prospect. Department of Defense End Users: If the Product is acquired by or on behalf of agencies or units of the Department of Defense, then pursuant to DOD FAR Supplement Section 227.7202 and its successors (48 C.F.R. 227.7202) the Government's right to use, reproduce or disclose the Product and any accompanying Documentation acquired under this Agreement is subject to the restrictions of this Agreement. Civilian Agency End Users: If the Product is acquired by or on behalf of civilian agencies of the United States Government, the, pursuant to FAR Section 13.212 and its successors (48 C.F.R. 12.212), the Government's right to use, reproduce or disclose the Product acquired under this Agreement is subject to the restrictions of this Agreement. Choice of Law, Jurisdiction, And Venue This Agreement shall be interpreted, construed, and enforced in accordance with the laws of the United States of America and the State of Texas, as applied to agreements entered into and to be performed entirely within the State of Texas between Texas residents, but without application of conflict of law principles. The parties to this Agreement expressly submit themselves to the jurisdiction and venue of the state and federal courts of the State of Texas in any suit involving the terms of this Agreement or the Product licensed hereunder. Law Exclusions The Uniform Computer Information Transactions Act, and the United Nations Convention On Contracts For The International Sale Of Goods are specifically excluded from application to this Agreement. Definitions The following terms shall have the following definitions. "ASP Product" shall mean a fully hosted version of the Software Product through Prospect's trusted service provider. "Documentation" shall mean the technical publications prepared by Prospect relating to use of Product, such as reference, user, installation, systems administrators and technical guide. "Software Product" shall mean the current version of all Prospect computer software programs in machine readable object code form only. “You” shall mean and refer to a Licensee after the “I accept” option has been clicked or this product has been otherwise used, as provided in the first paragraph of this Agreement. ACCEPTANCE/REJECTION OF AGREEMENT: NOTICE: BY YOUR ACTS OF ACCEPTING THE TERMS OF THIS AGREEMENT AS INDICATED BELOW, YOU ARE REPRESENTING AND WARRANTING TO Prospect (i) your compliance with your country's laws, regulations and policies concerning the import, possession, use, and re-export of encryption Product; (ii) if required, the approval and recording of this Agreement in the country in which the Product is downloaded; (iii) that you are not located in, under the control of, or a national or resident of Cuba, Iran, Syria, Sudan, North Korea, or any countries on the United State embargoed list; (iv) you are not listed on the U.S. Treasury Department's List Of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders and (v) that you have filled out a valid registration form for the Product, truthfully stating your name, mailing address and nationality. Privacy Statement All personal information received from Licensee will be used only for (i) the purpose for which you submitted the information; (ii) the purpose of identifying authorized users of Prospect’s Software Product; (iii) the purpose of ensuring compliance with the terms of this Agreement and the United States export laws and regulations; and (iv) the purpose of complying with the order of a court of competent jurisdiction only after written notice to you at the above stated address. Otherwise, such information will be held internal to Prospect, and will not be shared with others without your prior written permission. END OF PROSPECT TECHNOLOGIES, INC., END USER LICENSE AGREEMENT
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