Software License Agreement

License Agreement

1. APPLICABILITY

This Software License Agreement (“Agreement”) shall apply to Software provided by Beast Code, LLC (“LICENSOR”) to you (“LICENSEE”) (collectively, the “Parties,” or each, individually, a “Party”), effective upon date LICENSEE uses Beast Code’s Software (“Effective Date”).

LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY USING THE SOFTWARE YOU (A) ACCEPT THIS AGREEMENT AND ANY UPDATES TO THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; (II) LICENSEE IS AUTHORIZED UNDER U.S. EXPORT CONTROL LAWS AND ECONOMIC SANCTIONS LAWS AND REGULATIONS TO USE THE SOFTWARE.; AND (III) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY: (1) YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS, OR (2) YOU ARE AUTHORIZED BY LICENSEE TO USE THE SOFTWARE PURSUANT TO THIS AGREEMENT UPON LICENSEE’S ACCEPTANCE OF THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE OR DOCUMENTATION.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR 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.

2. DEFINITIONS

(a) “Agreement” has the definition set forth in Section 1.

(b) “Confidential Information” has the definition set forth in Section 7.

(c) “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of LICENSEE or a user authorized by the LICENSEE through the Software or otherwise transmitted to LICENSOR.

(d) “Derivative Works” means software programs that incorporate any part of the Software delivered hereunder. Derivative Works include, but are not limited to, revisions, modifications, enhancements, translations or adaptations of the Software.

(e) “Documentation” means the explanatory materials such as installation or operating instructions, owner or user manuals, diagnostics, prompts, media, etc. necessary or desirable to assist the user to understand, use, or operate the Software.

(f) “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, 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.

(g) “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

(h) “Object Code” means a series of instructions in machine executable form, which cause a computer to perform its functions or to perform specific tasks in a pre-assigned order.

(i) “Open Source Components” means any software component that is subject to any open source license agreement, including any software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.

(j) “Ordering Document” means the instrument(s) of contracting, such as “PO”, “Purchase Order”, “Release”, “Contract”, “Subcontract”, “Task Order”, or other such type designation, into which this Agreement is incorporated.

(k) “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

(l) “Software” means the deliverables licensed by the LICENSOR to the LICENSEE under this Agreement and described as Beast Core. Software includes, but is not limited to, software programs provided as Object Code or Source Code, including all versions of the Software, modules, modifications, enhancements, bug fixes, patches, other error corrections, updates, and translations thereto; and any associated Documentation.

(m) “Source Code” means a series of machine instructions in human readable form from which Object Code may be generated.

(n) “Third-Party Materials” means materials and information, in any form or medium, that are not proprietary to Licensor, including any third-party: (i) documents, data, content or specifications; (ii) Open Source Components or other software, hardware or other products, facilities, equipment or devices; and (iii) accessories, components, parts or features of any of the foregoing. Third-Party Materials includes, but is not limited to, third-party hardware, software, services, applications, and APIs integrated with the Software by LICENSOR or LICENSEE.

3. APPLICABLE LAWS

(a) This Agreement and any matter arising out of or related to this Agreement shall be governed by the laws of the State of Florida, without regard to its conflicts of laws, provisions, and venue shall be established in Okaloosa County, Florida. However, federal law and jurisdiction shall apply when the United States Government is LICENSEE. In the case where the United States Government is LICENSEE, refer to “Beast Code License Agreement Attachment – USA Government LICENSEE”.

(b) The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. LICENSOR shall comply with all applicable U.S. export control laws and economic sanctions laws and regulations, including without limitation the International Traffic in Arms Regulations (ITAR), 22 C.F.R. 120 et seq.; the Export Administration Regulations, 15 C.F.R. 730‐774; and the Foreign Assets Control Regulations, 31 C.F.R. 500-599. LICENSEE shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by such U.S. export control laws and economic sanctions laws and regulations. LICENSEE shall not allow access to or transfer the Software and Documentation to any Person where such access or transfer would violate such U.S. export control and sanctions laws, including, but not limited to, (i) any Person on any list of prohibited parties maintained by a U.S. government agency, including but not limited to the Specially Designated Nationals and Blocked Persons List (“SDN List”) and other non-SDN lists maintained by the U.S. Office of Foreign Assets Control, the Entity List, Unverified List, Denied Persons List, Entity List, or Military End User List maintained by the U.S. Department of Commerce, or the Debarred List maintained by the U.S. Department of State; or (ii) any Person resident in or located in a region subject to comprehensive sanctions (including but not limited to Belarus, Burma, Iran, North Korea, Russia, South Sudan, Sudan, Ukraine, or Venezuela). LICENSEE shall comply with all such U.S. export control laws and economic sanctions laws and regulations, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US. LICENSEE shall not allow end users that are non-US citizens to use the Software without an export license or other proper regulatory authorization.

4. GRANT OF LICENSE

(a) Subject to the terms and conditions of this Agreement, LICENSOR hereby grants to LICENSEE a non-exclusive, non-sublicensable, and non-transferable license during the Term to use the Software and Documentation and have it used on LICENSEE’S behalf up to the number of authorized users set forth in the relevant Ordering Document. The total number of authorized users will not exceed the number set forth in Ordering Document, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the license fees payable hereunder.

(b) LICENSEE shall have the right to make additional copies of the Software and Documentation to be used only for purposes of backup, archival storage, test, disaster recovery, development, training, and for other non-production purposes. All such copies of the Software: (i) remain LICENSOR’s exclusive property; (ii) are subject to the terms and conditions of this Agreement; and (iii) must bear any proprietary notice, which may appear on the Software copy furnished by LICENSOR.

(d) The Software and Documentation are licensed, not sold, to LICENSEE by LICENSOR and LICENSEE does not have under or in connection with this Agreement any ownership interest in the Software or Documentation, or in any related Intellectual Property Rights. LICENSEE acknowledges that, as between LICENSEE and LICENSOR, LICENSOR owns all right, title, and interest, including all Intellectual Property Rights, in and to the Software and Documentation, subject only to the rights of third parties in Open Source Components. Except as otherwise provided in this Agreement, LICENSEE acknowledges that it is acquiring a license only and nothing contained in this license grant shall be construed as granting LICENSEE ownership of the Software.

(e) The Software includes Open Source Components licensed under MIT, Apache 2.0, GPL-3.0, AGPL-3.0, or GPL-2.0, copies of which can be found at https://opensource.org/licenses (each, an “Open Source License”). Any use of the Open Source Components by LICENSEE is governed by, and subject to, the terms and conditions of the Open Source License(s).

(f) LICENSEE hereby unconditionally and irrevocably assigns to LICENSOR, its entire right, title, and interest in and to any Intellectual Property Rights that LICENSEE may now or hereafter have in or relating to the Software or Documentation (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise.

(g) LICENSEE and LICENSOR each agree that any and all disputes that have arisen or may arise, including without limitation federal and state statutory claims, common law claims, and those based in contract, tort, misrepresentation or any other legal theory (each a “Dispute”), shall be resolved exclusively through final and binding arbitration in accordance with Section 18.

(h) LICENSOR is licensing the Software to the LICENSEE in good faith. LICENSEE is responsible and liable for all uses of the Software and Documentation resulting from access provided by LICENSEE, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. LICENSOR assumes that any user with licensed access to any LICENSOR Software will not tamper with the product, manipulate the product, give access to unlicensed users unauthorized by LICENSEE, or otherwise interact with the product in bad faith. LICENSEE is responsible for all acts and omissions of users, and any act or omission by a user that would constitute a breach of this Agreement if taken by LICENSEE will be deemed a breach of this Agreement by LICENSEE. LICENSOR reserves the right to seek legal action should the LICENSEE fail to act in good faith.

(i) The Software may contain technological measures designed to prevent unauthorized or illegal use of the Software. LICENSEE acknowledges and agrees that:

(i) LICENSOR may use these and other lawful measures to verify LICENSEE’s compliance with the terms of this Agreement and enforce LICENSOR’s rights, including all Intellectual Property Rights, in and to the Software;

(ii) LICENSOR may deny any individual access to and/or use of the Software on written notice to LICENSEE if LICENSOR, in its sole discretion, believes that Person’s use of the Software would violate any provision of this Agreement, regardless of whether LICENSEE designated that Person as an authorized user; and

(iii) LICENSOR may collect, maintain, process and use diagnostic, technical, usage and related information, including information about LICENSEE’s computers, systems and software, that LICENSOR may gather periodically to improve the performance of the Software. This information will be treated in accordance with LICENSOR’s privacy policy, as amended from time to time, which can be viewed at: www.beast-code.com or a successor website address.

(j) LICENSEE shall take commercially reasonable measures to safeguard the Software and Documentation (including all authorized copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access, and promptly notify LICENSOR in writing if LICENSEE becomes aware of: (i) any actual or suspected infringement, misappropriation or other violation of LICENSOR’s Intellectual Property Rights in or relating to the Software or Documentation; or (ii) any claim that the Software or Documentation, including any production, use, marketing, sale or other disposition of the Software or Documentation, in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property Rights or other rights of any Person.

5. RESERVATION OF RIGHTS

(a) LICENSOR reserves all rights not expressly granted to LICENSEE in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to LICENSEE or any third party any Intellectual Property Rights or other right, title, or interest in or to the Software.

6. FEES AND PAYMENT

(a) LICENSEE shall pay LICENSOR the license fees set forth on the Ordering Document in accordance with the Ordering Document and with the terms of this Agreement.

7. CONFIDENTIAL INFORMATION

(a) From time to time, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall protect and safeguard the confidentiality of the disclosing Party’s Confidential Information with at least the same degree of care as the receiving Party would use to protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any Person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

8. RIGHT OF ASSIGNMENT AND TRANSFER

(a) LICENSEE shall not assign or transfer the license or Software, or any of the associated rights and responsibilities under this Agreement, except as specifically set forth in this Agreement.

9. MAINTENANCE AND SUPPORT

(a) If LICENSEE elects to have LICENSOR provide Maintenance and Support for the Software, the parties shall negotiate the cost for such Maintenance, which shall be identified in the Ordering Document.

(b) For purposes of this Agreement, Maintenance and Support is defined as the provision of new releases, corrections, patches, enhancements, upgrades, updates, and improvements to the Software and related Documentation. Maintenance and Support shall also include training and reasonable assistance and consultation to assist LICENSEE in resolving problems with the use of the Software, including the verification, diagnosis and correction of errors and defects in the Software. The Maintenance and Support provided to LICENSEE by LICENSOR shall be identified in the Ordering Document.

(c) In performing Maintenance and Support to LICENSEE, the LICENSOR, its employees, independent contractors and agents may have access to Confidential Information of LICENSEE. LICENSOR shall comply with Section 7 and any applicable confidentiality agreement in place between LICENSEE and LICENSOR. LICENSOR shall use such Confidential Information only in the performance of its obligations hereunder.

10. PRE-PACKAGED SOFTWARE LICENSE/SUPPORT AGREEMENTS

(a) This Agreement is in lieu of and supersedes any subsequent software license agreements, or other terms and conditions, which may be delivered with the Software; and/or any additional terms and conditions subsequently presented by LICENSOR and accepted by a user through any electronic method, except Open Source Components governed by, and subject to, the terms and conditions of the Open Source License(s).

(b) Additional or different license terms or conditions, electronic or otherwise, proposed by LICENSOR or included in LICENSOR’S acknowledgment that are not accepted in writing by LICENSEE are hereby objected to and deemed rejected and shall have no effect unless accepted in writing by an authorized procurement representative with authority to bind LICENSEE to such different terms or conditions.

(c) This Agreement can only be amended by written amendment by an authorized procurement representative of LICENSEE and an authorized representative of LICENSOR.

(d) Acceptance of different license terms and conditions, electronic or otherwise, by any Person who is not an authorized procurement representative of LICENSEE shall not constitute acceptance by LICENSEE hereunder.

(e) Where this Agreement is incorporated into an Ordering Document, LICENSOR’S acknowledgment, acceptance of payment thereof, or shipment or distribution of the Software, shall constitute LICENSOR’S acceptance of this Agreement.

11. TERMINATION OF THE LICENSE

(a) In the event that LICENSEE or LICENSOR fail to perform any material provision of this Agreement, and if such default is not cured within thirty (30) days after LICENSEE or LICENSOR gives the other Party written notice thereof, the Party not in default may terminate this Agreement upon thirty (30) days written notification to the defaulting Party.

(b) If the notice of default alleges that LICENSEE has breached the clause entitled Use and Protection of Software as set forth in Section 12 of this Agreement, LICENSEE shall use commercially reasonable efforts to cure the default. If LICENSEE is unable to cure the default, and is requested by LICENSOR in writing to destroy or return the Software, LICENSEE shall destroy or return all remaining copies of the Software in LICENSEE’s possession to LICENSOR.

(c) Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

(d) Upon expiration or earlier termination of this Agreement, the license granted hereunder will also terminate and, without limiting LICENSEE’s obligations under Section 7, LICENSEE shall cease using and delete, destroy, or return all copies of the Software and Documentation and certify in writing to the LICENSOR that the Software and Documentation has been deleted or destroyed. No expiration or termination will affect LICENSEE’s obligation to pay all fees that may have become due before such expiration or termination, or entitle LICENSEE to any refund.

(e) This Section 11 and Section 1 (Applicability), Section 2 (Definitions), Section 6 (Fees and Payment), Section 7 (Confidential Information), Section 15(f) (Warranty), Section 16 (Limitations of Liability), Section 17 (Indemnification), Section 18 (Disputes), and Section 21 (Miscellaneous) survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

12. USE AND PROTECTION OF SOFTWARE

(a) LICENSEE shall not use the Software or Documentation for any purposes beyond the scope of the license granted in this Agreement.

(b) The Software shall be used exclusively by LICENSEE, its authorized employees, subcontractor personnel, and consultants under contract to LICENSEE, working solely for the benefit of LICENSEE.

(c) Except as provided otherwise in this Agreement, LICENSEE shall not, directly or indirectly, without the express written consent of LICENSOR, (i) provide, disclose, rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or the Documentation, or copies thereof, to any third party, 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 (SaaS), cloud, or other technology or service; (ii) copy, modify, or create derivative works of the Software or the Documentation, in whole or in part; (iii) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs; (iv) remove any proprietary notices from the Software or the Documentation; or (v) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law.

(d) The Software is the property of the LICENSOR and is used pursuant to a limited license. The LICENSEE shall not copy, duplicate, reconfigure, reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part, or otherwise used except as permitted by contract.

13. USE OF FREE, LIBRE AND OPEN SOURCE SOFTWARE (FLOSS)

(a) LICENSOR shall disclose to LICENSEE in writing any FLOSS that will be used or delivered in connection with this Agreement and shall obtain LICENSEE’s prior written consent before using or delivering such FLOSS in connection with this Agreement. LICENSEE may withhold such consent in its sole discretion.

(b) As used herein, “FLOSS” means software that incorporates or embeds software in, or uses software in connection with, as part of, bundled with, or alongside any (1) open source, publicly available, or “free” software, library or documentation, or (2) software that is licensed under a FLOSS License, or (3) software provided under a license that (a) subjects the delivered Software to any FLOSS License, or (b) requires the delivered Software to be licensed for the purpose of making Derivative Works or be redistributable at no charge, or (c) obligates LICENSEE to sell, loan, distribute, disclose or otherwise make available or accessible to any third party (i) the delivered Software, or any portion thereof, in Object Code and/or Source Code formats, or (ii) any products incorporating the delivered Software, or any portion thereof, in Object Code and/or Source Code formats.

14. AUDITS

(a) LICENSOR or its nominee (including its accountants and auditors) may, on reasonable request, inspect and audit LICENSEE’s use of the Software under this Agreement at any time. All audits will be conducted during regular business hours and in a manner that does not unreasonably interfere with LICENSEE’s business operations. LICENSEE shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may reasonably be requested by or on behalf of LICENSOR with respect to such audit. LICENSOR shall examine information directly related to LICENSEE’s use of the Software. If the audit determines that LICENSEE’s use of the Software exceeded the usage permitted by this Agreement, LICENSEE shall pay to LICENSOR all amounts due for such excess use of the Software. LICENSEE shall make all payments required under this Section 14(a) within thirty (30) days of the date of written notification of the audit results.

15. WARRANTY

(a) LICENSOR warrants that to the knowledges of LICENSOR, the Software and any Maintenance and Support provided will not infringe or otherwise violate the Intellectual Property Rights of any third party.

(b) LICENSOR warrants that the Software will substantially conform to LICENSOR’s Documentation and published specifications when installed, operated, and used as recommended in the Documentation, published specifications, and in accordance with this Agreement.

(d) The warranties set forth in Sections 15(a)-(c) do not apply and become null and void if LICENSEE breaches any provision of this Agreement, or if LICENSEE, any user, or any Person provided access to the Software by LICENSEE, whether or not in violation of this Agreement:

(i) installs or uses the Software on or in connection with any hardware or software not specified in the Documentation or expressly authorized by LICENSOR in writing;

(ii) modifies or damages the Software;

(iii) misuses the Software, including any use of the Software other than as specified in the Documentation or expressly authorized by LICENSOR in writing; or

(iv) fails to promptly install all updates, upgrades, releases, or other adaptations or modifications of the Software, including any updated Documentation, that LICENSOR may provide to LICENSEE from time to time, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Software that LICENSOR has previously made available to LICENSEE.

(e) If any Software fails to comply with the warranty in Sections 15(a)-(c), and such failure is not excluded from warranty pursuant to Section 15(d), LICENSOR shall, subject to LICENSEE’s promptly notifying LICENSOR in writing of such failure, at its sole option, either: (i) 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; or (ii) refund the fees paid for such Software, subject to LICENSEE’s ceasing all use of and, if requested by LICENSOR, returning to LICENSOR all copies of the Software. If LICENSOR repairs or replaces the Software, the warranty will continue to run from the Effective Date and not from LICENSEE’s receipt of the repair or replacement. The remedies set forth in this Section 15(e) are LICENSEE’s sole remedies and LICENSOR’s sole liability under the limited warranty set forth in Sections 15(a)-(c).

(f) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTIONS 15(a)-(c), THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL OPEN SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN SOURCE COMPONENTS AND THIRD-PARTY MATERIALS.

16. LIMITATIONS OF LIABILITY

(a) LICENSOR shall not be liable to licensee or to any other Person, whether in contract or tort, for indirect, incidental, or consequential damages resulting from the use of the Software or any part of it, the loss of use of the Software, loss of data or profits, modifications of the Software made by anyone other than LICENSOR or its authorized representatives, erroneous data in the data files or in the input or output, erroneous transmission of data, failure by any Person to perform adequate data backup or security procedures, hardware malfunctions, or the use of the Software by unlicensed Persons. In no event shall the total liability of LICENSOR to LICENSEE exceed the sum paid to LICENSOR by licensee for license of the product.

(b) In no event will LICENSOR be liable under or in connection with this Agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any: (i) consequential, incidental, indirect, exemplary, special, enhanced, or punitive damages; (ii) increased costs, diminution in value or lost business, production, revenues, or profits; (iii) loss of goodwill or reputation; (iv) use, inability to use, loss, interruption, delay or recovery of any Software, Open Source Components, or other Third-Party Materials; (v) loss, damage, corruption, or recovery of data, or breach of data or system security; or (vi) cost of replacement goods or services, in each case regardless of whether LICENSOR was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable.

17. INDEMNIFICATION

(a) LICENSOR Indemnification:

(i) LICENSOR shall indemnify, defend, and hold harmless LICENSEE from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys’ fees) (“Losses”) incurred by LICENSEE resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Software or Documentation, or any use of the Software or Documentation in accordance with this Agreement, infringes or misappropriates such third party’s Intellectual Property Rights, provided that LICENSEE promptly notifies LICENSOR in writing of the claim, cooperates with LICENSOR, and allows LICENSOR sole authority to control the defense and settlement of such claim.

(ii) If such a claim is made or appears possible, LICENSEE agrees to permit LICENSOR, at LICENSOR’s sole discretion, to (A) modify or replace the Software or Documentation, or component or part thereof, to make it non-infringing, or (B) obtain the right for LICENSEE to continue use. If LICENSOR determines that none of these alternatives is reasonably available, LICENSOR may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to LICENSEE.

(iii) This Section 17(a) will not apply to the extent that the alleged infringement arises from:

(A) use of the Software in combination with data, software, hardware, equipment, or technology not provided by LICENSOR or authorized by LICENSOR in writing;

(B) modifications to the Software not made by LICENSOR;

(D) use of the Software or Documentation by or on behalf of LICENSEE that is outside the purpose, scope, or manner of use authorized by this Agreement or in any manner contrary to LICENSOR’s instructions;

(E) use of the Software after LICENSOR’s notice to LICENSEE of such activity’s alleged or actual infringement, misappropriation, or other violation of a third party’s rights;

(F) negligence, abuse, misapplication, or misuse of the Software or Documentation by or on behalf of LICENSEE or a third party;

(G) Open Source Components or other Third-Party Materials; or

(H) Customer Data.

(b) LICENSEE Indemnification:

(i) LICENSEE shall indemnify, hold harmless, and, at LICENSOR’s option, defend LICENSOR from and against any Losses resulting from any Third-Party Claim based on LICENSEE’s, or any user or third party’s:

(A) negligence or willful misconduct;

(B) use of the Software or Documentation in a manner not authorized or contemplated by this Agreement;

(C) use of the Software in combination with data, software, hardware, equipment, or technology not provided by LICENSOR or authorized by LICENSOR in writing;

(D) modifications to the Software not made by LICENSOR; or

(E) use of any version other than the most current version of the Software or Documentation delivered to LICENSEE,

provided that LICENSEE may not settle any Third-Party Claim against LICENSOR unless such settlement completely and forever releases LICENSOR from all liability with respect to such Third-Party Claim or unless LICENSOR consents to such settlement, and further provided that LICENSOR will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

(ii) LICENSEE shall indemnify, hold harmless, and, at LICENSOR’s option, defend LICENSOR from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s Intellectual Property Rights, provided that LICENSEE may not settle any Third-Party Claim against LICENSOR unless such settlement completely and forever releases LICENSOR from all liability with respect to such Third-Party Claim or unless LICENSOR consents to such settlement, and further provided that LICENSOR will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

(c) Each Party shall promptly notify the other Party in writing of any action for which such Party believes it is entitled to be indemnified pursuant to Section 17(a) or Section 17(b). The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and investigation of such action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any action without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such action, the Indemnitee shall have the right, but no obligation, to defend against such action, including settling such action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 17(c) will not relieve the Indemnitor of its obligations under this Section 17, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.

(d) THIS SECTION 17 SETS FORTH LICENSEE’S SOLE REMEDIES AND LICENSOR’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

18. DISPUTES

(a) Any Dispute that the Parties are unable to resolve shall be submitted for final and binding arbitration in accordance with this Section 18. Except as otherwise expressly provided in this Agreement, arbitration of a Dispute will be conducted by the American Arbitration Association (AAA) under the then prevailing Commercial Arbitration Rules (the “Arbitration Rules”), except as modified in this Agreement, applying the substantive law specified in Section 3.

(b) Arbitration will be conducted by a sole arbitrator chosen by mutual agreement of the Parties. The arbitrator shall be independent and disinterested with respect to the Parties and shall have expertise in intellectual property. If the Parties fail to agree upon a sole arbitrator within fourteen (14) days after a Party’s receipt of a demand for arbitration from the other Party, the arbitrator shall be appointed in accordance with the Arbitration Rules. Any Disputes about the scope or applicability of this Section 18 will be finally determined by the arbitrator.

(c) The arbitrator will issue a written ruling stating the prevailing party and the damages awarded, if any, and a separate written decision setting out the reasoning for the award, including findings of fact and conclusions of law. Arbitration under this Section 18 will be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. The arbitration award will be final and binding on the Parties and judgment upon the award may be entered in any court of competent jurisdiction. Either Party may appeal a final award in an arbitration under this Section 18 in accordance with the AAA’s Optional Appellate Arbitration Rules.

(d) Each Party shall bear its own attorneys’ fees, costs, and disbursements arising out of the arbitration, and will pay an equal share of the fees and costs of the arbitrator; provided, however, the arbitrator may award to the prevailing Party, if any, reimbursement for any or all of its reasonable attorneys’ fees, costs, and disbursements, or the fees and costs of the administrator and the arbitrator(s).

(e) The existence of any Dispute, all activities conducted under this Section 18 to resolve any Dispute (including any submissions or disclosures made by a Party in any negotiation or proceeding), and any settlement, decision, award, or other resolution of any Dispute will be deemed Confidential Information of each Party as applicable, and neither Party shall disclose, or permit or direct any third party (including any arbitrator) to disclose, any such Confidential Information except to the extent necessary to enforce or challenge any such decision or award or to seek interim or provisional relief under Section 18(f), as may be required by applicable Law.

(f) Nothing in this Section 18 will preclude either Party from seeking interim or provisional relief from a court of competent jurisdiction, including a temporary restraining order, preliminary injunction, or other interim equitable relief, concerning a Dispute either prior to or during any arbitration if necessary to protect the interests of such Party or to preserve the status quo pending resolution of the Dispute. Without prejudice to such interim or provisional relief as may be available from a court of competent jurisdiction, the arbitrator will have full authority to grant interim or provisional remedies and to award damages for the failure of any Party to the Dispute to respect the arbitrator’s order to that effect.

19. FAR CLAUSES

(a) Licenses are subject to applicable FAR clauses. Please email support@beast-code.com for those to be provided.

20. SOFTWARE AS A SERVICE (SaaS)

(a) LICENSOR may provide access to the Software to the LICENSEE as one or more Services for the LICENSEE to access. Subject to the terms and conditions of this Agreement, LICENSOR hereby grants LICENSEE a non-exclusive, non-transferable, non-sublicensable right to access and use the Services, solely for use by users authorized by LICENSEE in accordance with this Agreement. Such use is limited to LICENSEE, its authorized employees, subcontractor personnel, and consultants under contract to LICENSEE, working solely for the benefit of LICENSEE. LICENSOR shall provide to LICENSEE the necessary passwords and network links or connections to allow LICENSEE to access the Services. LICENSEE acknowledges that LICENSOR retains control over Persons accessing the Services.

(b) LICENSEE shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. LICENSEE shall not at any time, directly or indirectly, and shall not permit any users authorized by LICENSEE to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) combine the Services or any part thereof with, or incorporate the Services or any part thereof in, any other programs; (iii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation , 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 (SaaS), cloud, or other technology or service; (iv) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part, except reverse engineering solely for the purpose of good faith testing for security flaws or vulnerabilities of the Services; (v) remove any proprietary notices from the Services or Documentation; or (vi) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

(c) Notwithstanding anything to the contrary in this Agreement, LICENSOR may temporarily suspend LICENSEE’s and any user authorized by the LICENSEE’s access to any portion or all of the Services if (i) LICENSOR reasonably determines that (A) there is a threat or attack on any of the Services; (B) LICENSEE’s or any user authorized by the LICENSEE’s use of the Services disrupts or poses a security risk to the Services or to any other customer or vendor of LICENSOR; (C) LICENSEE, or any user authorized by the LICENSEE, is using the Services for fraudulent or illegal activities; (D) subject to applicable law, LICENSEE has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) LICENSOR’s provision of the Services to LICENSEE or any user authorized by the LICENSEE is prohibited by applicable Law; (F) LICENSEE is participating in a free feature-limited version of the Software; or (G) LICENSEE has not paid LICENSOR the license fees set forth on the Ordering Document in accordance with the Ordering Document and with the terms of this Agreement; or (ii) any vendor of LICENSOR has suspended or terminated LICENSOR’s access to or use of any third-party services or products required to enable LICENSEE to access the Services (a “Service Suspension”). LICENSOR shall use commercially reasonable efforts to provide written notice of any Service Suspension to LICENSEE and to provide updates regarding resumption of access to the Services following any Service Suspension. LICENSOR shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. LICENSOR will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that LICENSEE or any user authorized by LICENSEE may incur as a result of a Service Suspension.

(d) LICENSEE is responsible and liable for all uses of the Services and Documentation resulting from access provided by LICENSEE, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, LICENSEE is responsible for all acts and omissions of users authorized by LICENSEE, and any act or omission by such user that would constitute a breach of this Agreement if taken by LICENSEE will be deemed a breach of this Agreement by LICENSEE. LICENSEE shall use reasonable efforts to make all such users aware of this Agreement’s provisions as applicable to such user’s use of the Services, and shall cause such users to comply with such provisions.

(e) LICENSEE acknowledges that, as between LICENSEE and LICENSOR, LICENSOR owns all right, title, and interest, including all intellectual property rights, in and to the Services.

(f) LICENSOR acknowledges that, as between LICENSOR and LICENSEE, LICENSEE owns all right, title, and interest, including all Intellectual Property Rights, in and to the Customer Data. LICENSEE hereby grants to LICENSOR a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for LICENSOR to provide the Services to LICENSEE.

(g) LICENSEE shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.

(h) The provisions set forth in the following sections, as applied to the Software and Documentation, shall apply to the Services: Section 1 (Applicability), Section 3 (Applicable Laws), Section 5 (Reservation of Rights), Section 6 (Fees and Payment), Section 9 (Maintenance and Support), Section 10 (Pre-packaged Software License/Support Agreements), Section 11 (Termination of the License), Section 13 (Use of Free, Libre and Open Source Software (FLOSS)), Section 15 (Warranty), Section 16 (Limitations of Liability), and Section 17 (Indemnification).

21. MISCELLANEOUS

(a) This Agreement, together with the Ordering Document all annexes, schedules, and exhibits attached hereto and any and all other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement; (ii) second, any other documents incorporated herein by reference.

(b) In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to: (i) acts of God; (ii) flood, fire, earthquake, other potential disaster(s) or catastrophe(s), such as epidemics, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (viii) shortage of adequate power or transportation facilities.

(c) This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

(d) No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

(e) If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

(f) Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of LICENSEE, Section 12, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

(g) This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

(h) For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, Annexes, Schedules, and Exhibits refer to the Sections of, and Annexes, Schedules, and Exhibits attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Ordering Document and all Annexes, Schedules, and Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.

(i) The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

Annex 1

TERMS OF USE

These Software Terms of Use (“Terms of Use”) govern your use of the BEAST CORE software (the “Software”), including all user manuals, technical manuals, and any other materials provided by Licensor, in printed, electronic, or other form, that describe the Software or its use or specifications (the “Documentation”) provided to you (“you” or “your”) for use pursuant to and subject to a software license agreement (the “Software License Agreement”) between BEAST CODE, LLC (“Licensor”) and your employer or other person or entity who owns or otherwise lawfully controls the computer on which the Software is installed (“Licensee”).

BY CLICKING THE “ACCEPT” BUTTON YOU: (i) REPRESENT THAT YOU ARE DULY AUTHORIZED BY LICENSEE TO ACCESS AND USE THE SOFTWARE; AND (ii) ACCEPT THESE TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THEM. IF YOU DO NOT AGREE TO THESE TERMS OF USE, DO NOT CLICK THE “ACCEPT” BUTTON AND YOU WILL HAVE NO LICENSE TO, AND MUST EXIT NOW AND MUST NOT ACCESS OR USE, THE SOFTWARE.

1. License Grant. Subject to your compliance with these Terms of Use, Licensor hereby grants you a non-exclusive, non-transferable, non-sublicensable, license to use the Software solely in accordance with the Documentation, as installed on the equipment provided by Licensee and for Licensee’s internal business purposes. The foregoing licensee will terminate immediately on the earlier to occur of:

(a) the expiration or earlier termination of the Software License Agreement between Licensor and Licensee; or

(b) your ceasing to be authorized by Licensee to use the Software for any or no reason.

2. Use Restrictions. You shall not, directly or indirectly:

(a) use the Software or Documentation except as set forth in Section 1;

(b) copy the Software or Documentation, in whole or in part;

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

(d) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;

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

(f) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices included on or in the Software or Documentation, including any copy thereof;

(g) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise provide any access to or use of the Software or any features or functionality of the Software, for any reason, to any other person or entity, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, whether or not over a network and whether or not on a hosted basis, including in connection with the internet, 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;

(h) use the Software or Documentation in, or in association with, the design, construction, maintenance, or operation of any 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;

(iii) safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; and

(iv) military or aerospace applications, weapons systems, or environments.

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

(j) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor’s commercial disadvantage.

3. Compliance Measures.

(a) The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against use of the Software:

(a) beyond the scope of the license granted to pursuant to Section 1; or

(b) prohibited under Section 2.

You shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.

4. Collection and Use of Information.

(a) Licensor may, directly or indirectly through the services of others, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, by means of (i) providing maintenance and support services and (ii) security measures included in the Software as described in Section 3.

(b) You agree that the Licensor may use such information for any purpose related to any use of the Software by you, including but not limited to: (i) improving the performance of the Software or developing updates; and verifying compliance with the terms of this Agreement and enforcing Licensor’s rights, including all intellectual property rights in and to the Software.

5. Intellectual Property Rights. You acknowledge that the Software is provided under license, and not sold, to you. You do not acquire any ownership interest in the Software under this Agreement, or any other rights to the Software other than to use the Software in accordance with the license granted under this Agreement, subject to all terms, conditions, and restrictions. Licensor and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software and all intellectual property rights arising out of or relating to the Software, subject to the license expressly granted to the Licensee in this Agreement. You shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access.

6. Disclaimer of Liability. IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE. YOU ARE PROVIDED THE SOFTWARE PURSUANT TO THE SOFTWARE LICENSE AGREEMENT BETWEEN LICENSOR AND LICENSEE, SOLELY FOR THE BENEFIT OF LICENSEE AND AT LICENSEE’S DISCRETION. YOU ACKNOWLEDGE THAT YOU HAVE NO RIGHTS UNDER THAT AGREEMENT INCLUDING ANY RIGHTS TO ENFORCE ANY OF ITS TERMS. ANY OBLIGATION OR LIABILITY LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR LICENSORS OR SERVICE PROVIDERS, MAY HAVE WITH RESPECT TO YOUR USE OR INABILITY TO USE THE SOFTWARE SHALL BE SOLELY TO LICENSEE PURSUANT TO THAT AGREEMENT AND SUBJECT TO ALL LIMITATIONS OF LIABILITY SET FORTH THEREIN.

7. Export Regulation. The Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.

8. Governing Law. These Terms of Use are governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Florida.

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