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SOFTWARE LICENSE AGREEMENT

 

                1.             ATTENTION: YOU SHOULD CAREFULLY READ THIS “CAPSYS SOFTWARE LICENSE AGREEMENT” (THE “AGREEMENT”) BEFORE LOADING OR USING THE SOFTWARE. BY OPENING THE PACKAGE, BREAKING THE PACKAGING SEAL, AND/OR LOADING THE SOFTWARE, YOU ACCEPT THE FOLLOWING TERMS AND CONDITIONS AND UNDERSTAND THAT THEY WILL BE LEGALLY BINDING ON YOU, ANY END USER, AND/OR YOUR EMPLOYER (IF APPLICABLE). IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT OR DO NOT WANT THEM TO BE BINDING ON YOU, YOU SHOULD RETURN THE UNOPENED PACKAGE WITHIN NINETY (90) DAYS OF PURCHASE TO THE PLACE WHERE YOU PURCHASED IT FOR A FULL REFUND.

                2.             Ownership: It is hereby understood and agreed by you that CAPSYS Technologies, LLC, an Illinois limited liability company with offices at 6755 Earl Drive, Suite 207, Colorado Springs, Colorado 80918 (“CAPSYS”) is the owner of all right, title and interest to this software (“Software”), user manuals, and any other related documentation (collectively, the “Product”) and recorded on the enclosed disk, CD, DVD, or other media (collectively, the “media”) and all subsequent copies thereof regardless of the media or form in which the original media may exist. You, as Licensee (“you” or “Licensee”) through your purchase of this product do not acquire any ownership rights to the Product. Licensee owns the media on which the Software is recorded, but CAPSYS retains all ownership of all copies of the Software itself. Unless otherwise provided in this Agreement, Licensee assumes full responsibility for the installation, use and results obtained from use of the Software.

                3.             License: Subject to the terms and conditions of this Agreement, CAPSYS grants Licensee a limited, non-transferable, non-sublicensable, non-exclusive right to use the supplied copy of the Product on a single computer in accordance with the applicable user documentation or on multiple computers as enabled through the use of a CAPSYS authorized license key. Licensee may not use a license key with the Product other than one created by CAPSYS, or its authorized representative, specifically for use by Licensee. Licensee may make one (1) copy of the Software in object code form for back-up purposes only. If upgraded versions of the Software are developed, CAPSYS may, at its discretion, make such updates available to those Licensees that have paid any required fees. This Agreement does not grant any ownership or other rights to the Product. CAPSYS reserves all rights not expressly and unambiguously granted to you.

                4.             Term: This Agreement will become effective on the date you first open the Software packaging and will remain in force until terminated. You may terminate this Agreement at any time by destroying the Product together with all copies. This Agreement shall also automatically terminate if you breach any of the terms or conditions herein. You agree to destroy the original and all adaptations or copies of the Product, or to return them to CAPSYS upon termination of this Agreement.

                5.             Restrictions on Use: Licensee shall not (and shall not allow any third party to) (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, or underlying ideas or algorithms of the Software, (ii) provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use the Product to or for the benefit of third parties, (iii) except as specified in the applicable user documentation, modify, incorporate into or with other software or create a derivative work of any part of the Product, or (iv) disseminate performance information or analysis from any source relating to the Product.

                6.             Restrictions on Transfer:

                A.             Licensee may not transfer the Product and this license to another party regardless of whether or not the other party agrees to accept the terms and conditions of this Agreement.

                B.             Licensee shall not sublicense, assign, or transfer the license or the program except as expressly provided in this Agreement. Any attempt otherwise to sublicense, assign, or transfer any of the rights, duties, or obligations hereunder renders this license VOID.

                7.             Copyright and Trademark Notice: The Product is protected by U.S. copyright laws and may be protected by the copyright laws of other countries and jurisdictions as well. Except as specifically permitted in accordance with this Agreement, any copy, reproduction, display, performance or retransmission of any of the contents of the Product is strictly prohibited. Any use of “CAPSYS Technologies, LLC” and any other trademarks or logos under which CAPSYS does business is strictly prohibited without CAPSYS’ prior written consent. In addition, the names, trademarks and/or trade names of third parties, including our clients, that appear anywhere within the Product are proprietary to their respective owners and may only be used with their express written permission.

                8.             Limited Warranty: Except as otherwise provided in this limited warranty, CAPSYS warrants for a period of ninety (90) days from the date of purchase (as evidenced by a written receipt) (the “Warranty Period”): (i) that if the Software fails to conform substantially to the specifications in the documentation accompanying the Software and if the nonconformity is reported in writing by you to CAPSYS within the Warranty Period, CAPSYS, at its option, will either remedy the nonconformity or refund any license fees paid by you upon return of all copies of the Product to CAPSYS; (ii) that the media on which the Software is recorded is free of physical defects. Your sole remedy for defective media is replacement of the Software media.

                THE WARRANTIES STATED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES EXPRESSED OR IMPLIED GIVEN BY CAPSYS. EXCEPT FOR THE FOREGOING, THE PRODUCT IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHER, CAPSYS DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE PRODUCT IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. LICENSEE ACKNOWLEDGES AND AGREES THAT CAPSYS IS NOT RESPONSIBLE FOR AND WILL HAVE NO LIABILITY FOR HARDWARE, SOFTWARE, OR OTHER ITEMS OR ANY SERVICES PROVIDED BY ANY PERSONS OTHER THAN CAPSYS. CAPSYS DOES NOT WARRANT THAT THE PRODUCT IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION.

                9.             LIMITATION OF LIABILITIES: IN NO EVENT WILL CAPSYS OR ITS AFFILIATES, SUPPLIERS, AND LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, ECONOMIC, COVER, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, USER DOCUMENTATION, OR RELATED TECHNICAL SUPPORT, INCLUDING, WITHOUT LIMITATION, DAMAGES OR COSTS RELATING TO THE LOSS OF PROFITS, BUSINESS, GOODWILL, DATA, OR COMPUTER PROGRAMS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL CAPSYS’S AND ITS AFFILIATES’, SUPPLIERS’, AND LICENSORS’ LIABILITY EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

                10.           Export Assurances: Licensee may not download or otherwise export or re-export the Product or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations, including without limitation, the United States Export Administration Act, the Trading with the Enemy Act, the International Emergency Economic Powers Act and any regulations therewith. Any transfer of technical data outside the United States by any means, including the Internet, is an export which is subject to export control requirements under US law. The Product may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident, wherever located, of) Cuba, Libya, North Korea, Iran, Iraq, Angola, Syria or any other country to which the US prohibits exports of goods or technical data; or (ii) to anyone on the US Treasury Department’s Specially Designated Nationals List or the Table of Denial Orders issued by the Department of Commerce.

                11.           U.S. Government Licenses: The Product is provided with restricted and limited rights for purposes of government contracting and subcontracting. Use, duplication or disclosure by the government is subject to restrictions as set forth in Subparagraph 252.227-7013(c)(1)(ii) (Rights in Technical Data and Computer Software) of the Department of Defense Federal Acquisition Regulations Supplement or Subparagraphs 52.227-1 9(c)(1) and (c)(2) Commercial Computer Software - Restricted Rights) of Title 48 of the Code of Federal Regulations, as applicable. Contractor/manufacturer is CAPSYS Technologies, LLC, 917 W. Hawthorn Drive, Itasca, Illinois 60143. Phone: (630) 875-1900 Email: sales@CAPSYStech.com

                12.           Responsibility for Taxes: All prices quoted are exclusive of all taxes including federal, state and local use, sales, property, ad valorem and similar taxes. Licensee agrees to pay any and all such taxes (except taxes levied against Licensor’s income) to the proper taxing authority.

                13.           Miscellaneous:

                                A. Complete Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between the parties hereto and supersedes any and all prior express or implied agreements or understandings between the parties hereto concerning the subject matter hereof. No amendment, waiver or other alteration of this Agreement may be made except by mutual agreement in writing. This Agreement shall take precedence over any other documents that may be in conflict herewith.

                                B. Waiver. The failure of any party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.

                                C. Severability. If all or any part of this Agreement is declared to be unlawful or invalid, such unlawfulness or invalidity shall not serve to invalidate any portion of this Agreement not declared to be unlawful or invalid. Any provision so declared to be unlawful or invalid shall, if possible, be construed in a manner that will give effect to the terms of such provision to the fullest extent possible while remaining lawful and valid.

                                D. Headings. Section titles or captions contained in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.

                                E. Identification. Whenever the singular is used this Agreement and when required by the context, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders, and vice versa.

                                F. Governing Law. This Agreement shall be interpreted and construed according to, and governed by, the laws of the State of Illinois, excluding any such laws that might direct the application of the laws of another jurisdiction. The federal or state courts encompassing DuPage County, Illinois, shall have jurisdiction to hear any dispute under this Agreement.

                14.           Questions: All questions concerning this Agreement may be directed to sales@capsystech.com