Netsil Inc.: Trial/Evaluation Software Licence Agreement

Netsil Inc., with principal offices at 44 Montgomery Street, Suite 850, San Francisco, CA 94104 (“NETSIL”), and the Licensee hereby agree as follows:

1. Definitions

Terms used herein shall have the following definitions:

LICENSEE: The person or company which has requested a Trial License and accepted the responsibility for ensuring that all usage of the NETSIL Programs complies with the terms of this Software License Agreement.

NETSIL PROGRAM: The computer program(s) specified in a License Supplement and furnished by NETSIL to Licensee under the terms of this Software License Agreement, including the NETSIL documentation for such program.

LICENSE SUPPLEMENT: A supplement to this Software License Agreement (contained in the Appendix below) specifying each NETSIL Program to be licensed hereunder, including the license type, license fees and duration. A License Supplement may modify the terms of a previous License Supplement but may not modify the terms of this Software License Agreement.

2. Delivery and Documentation

NETSIL agrees to provide executable versions of each NETSIL Program specified in a License Supplement. Licensee shall install the NETSIL Programs in accordance with documentation and materials furnished by NETSIL.

NETSIL shall provide Licensee with electronic versions of the documentation for the NETSIL Programs.

3. License

NETSIL hereby grants to Licensee and Licensee accepts from NETSIL a non-exclusive, non-transferable, royalty-free license solely for evaluation purposes.

4. Restrictions on Use

Licensee agrees not to

  1. modify, reverse compile, disassemble, or otherwise reverse engineer any NETSIL Program, or allow anyone else to do so (except only to the extent such prohibition is contrary to applicable law);

  2. attempt to access or use portions of the NETSIL Program code for which Licensee has not acquired a license; or

  3. except as specifically authorized herein, distribute or transfer the NETSIL Program.

Licensee also agrees not to remove or destroy any proprietary markings or legends or any encrypted license keys or similar security devices placed upon or contained within any NETSIL Program.

Each NETSIL Program shall be used by the Licensee only for the purpose of evaluating suitability of the program for the Licensee's proposed applications. For the avoidance of any doubt all output generated from any NETSIL Program including models, input files, images including screenshots shall not be used for commercial or research purposes, publications, or presentations without the express written consent of NETSIL. All files provided by NETSIL and all output generated from these files shall remain the property of NETSIL and shall not be used for purposes other than internal evaluation.

Licensee shall not use any NETSIL Program for the purpose of developing products which compete with the NETSIL Programs. In no event shall Licensee make all or any part of any NETSIL Program available to any third person as part of a data services operation or application services provider or otherwise.

All use of any NETSIL Program shall be under the direct supervision and control of the Licensee. Licensee hereby asserts to be fully cognizant of the terms and conditions of this Software License Agreement, and to have the authority to exercise such supervision and control.

Licensee understands and acknowledges that it is granted only those rights set out in this Software License Agreement and License Supplement and no other rights.

5. Ownership

Licensee acknowledges and agrees that neither this Software License Agreement nor any License Supplement grants Licensee any title or rights of ownership in any NETSIL Program or any right to use, copy, transfer or disclose all or any portion of any NETSIL Program except as expressly provided in this Software License Agreement and the applicable License Supplement.

All right, title, and interest in any NETSIL Program and in any ideas and know-how which are developed by NETSIL in the course of providing any technical services, including any enhancements or modifications made to a NETSIL Program, shall at all time remain the property of NETSIL. Licensee acknowledges and agrees that the NETSIL Program is licensed, not sold.

6. Duration

The license granted under this Software License Agreement shall commence for each NETSIL Program on the date (“Start Date”) that the license key for that NETSIL Program has been sent to the Licensee. If no license key has been sent to the Licensee, then the Start Date will be the date when the Licensee has received or downloaded the NETSIL Program.

Unless earlier terminated as provided in Section 12 (Termination), the license as to any NETSIL Program licensed on a periodic basis shall continue until the end of the initial license period specified in a License Supplement. If no license period is specified in a License Supplement, the license shall terminate fifteen (15) days from Start Date, at which time the Licensee must return or delete all copies of that NETSIL Program.

7. Charges and Payment

NETSIL will provide Licensee trial license free of all charges and fees for the period specified in a License Supplement.

NETSIL reserves the right to change its prices, including license fees, without notice.

8. Maintenance, Enhancement and Support

Support for the duration of the trial license will be provided at NETSIL's sole discretion and may be conditioned upon payment of additional fees.

9. Non-Disclosure

For a period of ten (10) years from the last date that NETSIL delivers to Licensee any NETSIL Program or any update or improvement thereto, Licensee shall

  1. keep confidential and utilize its best efforts to prevent unauthorized disclosure or use of any NETSIL Program, and

  2. treat all NETSIL Programs with the same degree of care as it treats like information of its own which it does not want to be publicly disclosed or the subject of unauthorized access or use, and

  3. not make or permit to be made any more copies of any NETSIL Program than are necessary for the Licensee's internal use of that NETSIL Program.

The obligations in this Section shall not extend to any part of any NETSIL Program which is now or hereafter publicly known by virtue of disclosures not attributable to Licensee, its agents, employees, consultants, contractors, or any other person or entity under similar restriction not to make such disclosures.

10. Warranty

There is no express warranty provided for this trial license.

11. Limitation of Liability

Licensee expressly acknowledges that:

  1. NETSIL shall not be liable for loss of profit, loss of business, or other financial loss which may be caused, directly or indirectly, by the inadequacy of any NETSIL Program for any purpose or use thereof or by any defect or deficiency therein.

  2. NETSIL shall not have any liability with respect to any loss or damage related to or arising from:

    1. any failure of any NETSIL Program to perform as specified herein except as and to the extent otherwise expressly provided herein; or

    2. any use or application of any NETSIL Program or the results or decisions made or obtained by users of the NETSIL program.

    3. The total of NETSIL's liabilities to Licensee for damages, if any, shall not exceed the amounts paid by Licensee under this Software License Agreement during the twelve (12) months preceding the assertion of Licensee's claim.

    4. No action, regardless of form, arising out of any transaction under this Software License Agreement may be brought by Licensee more than one year after the Licensee has, or by the exercise of reasonable diligence should have had, knowledge of the occurrence which gives rise to such action.

12. Termination

Trial/Evaluation Licenses will terminate automatically on the expiration date if not renewed pursuant to the terms of the License as further defined in Section 6 (Duration) above.

  1. NETSIL shall have the right without further obligation or liability to Licensee to terminate this Software License Agreement and Licensee's license hereunder as to any NETSIL Program.

  2. The following obligations shall survive termination of the Software License Agreement for any reason: (i) Licensee's obligations under Sections 9 (Non-Disclosure); and (ii) Paragraph (3) of this Section. Termination of this Software License Agreement will not relieve either

  3. Upon the termination of this Software License Agreement as to any NETSIL Program, the license and all other rights granted to Licensee as to that NETSIL Program hereunder shall immediately cease, and Licensee shall immediately:

    1. return that NETSIL Program to NETSIL including all documentation, manuals and copies in respect of that NETSIL Program;

    2. purge all copies of that NETSIL Program and any portions thereof from all CPU's and storage media and devices on which Licensee has placed or allowed others to place that NETSIL Program; and

    3. upon request provide NETSIL with written certification that Licensee has complied with its obligations under this Paragraph 12(3).

13. General Provisions

  1. Licensee shall not have the right to assign or otherwise transfer its rights or obligations under this Software License Agreement except with the written consent of the other party.

  2. This License will be governed by and construed in accordance with the laws of the State of California, as applied to agreements entered into and to be performed entirely within California between California residents. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.

  3. This Software License Agreement supersedes all proposals, oral or written, and all negotiations, conversations or discussions heretofore had between the parties related to this Software License Agreement. Licensee acknowledges that it has not been induced to enter into this Software License Agreement by any representations or statements, oral or written, not expressly contained herein. The terms and conditions of this Software License Agreement shall prevail, notwithstanding any variance with the terms and conditions of any order or other instrument submitted by Licensee.

  4. This Software License Agreement supersedes any and all other Software License Agreements between the parties governing NETSIL Programs.

  5. This Software License Agreement shall not be deemed or construed to be modified, amended, rescinded, cancelled or waived, in whole or in part, except by written amendment signed by the parties hereto.

  6. The obligations of Licensee under Sections 4 (Restrictions on Use) and 9 (Non-Disclosure) hereof are of a special and unique character which gives them a peculiar value to NETSIL for which NETSIL cannot be reasonably or adequately compensated in damages in the event Licensee breaches such obligations. Therefore NETSIL shall, in addition to other remedies which may be available, be entitled to injunctive and other equitable relief in the event of the breach or threatened breach of such obligations.

14. Taxes and Duties

Licensee shall be responsible for taxes levied on any transaction under this Software License Agreement, including but not limited to all federal, state, and local taxes, levies and assessments, excluding any tax based on Netsil’s income.

15. Notices

Any demand, notice, consent, or other communication required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service to the addresses specified on the applicable ordering document (Product Schedule, quote or purchase order).

16. Export Controls

Licensee acknowledges that this Software is subject to the U.S. Export Administration Regulations (the "EAR") and Licensee will comply with the EAR. Licensee shall not export or re-export this Software, directly or indirectly, to: (1) any countries that are subject to US export restrictions; (2) any end user who Licensee knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems; or (3) any end user who has been prohibited from participating in the US export transactions by any federal agency of the US government. In addition, Licensee is responsible for complying with any applicable local laws regarding export or use of this Software.

17. Entire Agreement

This Agreement is the complete statement of the understanding between the parties, and supersedes all prior proposals and other communications between the parties. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party. Failure or delay by either party in exercising any right or remedy will not constitute a waiver. In the event that any provision of this Agreement shall be declared invalid, the entire Agreement shall not fail on its account, and that provision shall be severed, with the balance of this Agreement continuing in full force and effect. The terms and conditions contained in any purchase order issued by Licensee shall be of no force or effect, even if the order is accepted by Netsil. This Agreement shall supersede all terms of any unsigned, shrink-wrap or clickwrap license included in any package, media or electronic version of the software and any such software shall be licensed under the terms of this Agreement. In the event of a conflict in terms among the Agreement and a Product Schedule, the Product Schedule shall control. Licensee is an independent contractor and nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between Netsil and Licensee. Certain Software contains product security measures which may include password protection, anti-copying subroutines or other security measures designed to restrict the installation and/or usage of the Software to the licensed configuration.

Appendix: License Supplement

Netsil’s Application Operations Center (AOC), including but not limited to the following components:

  1. The network protocol stream processor

  2. Various backend and frontend software components

  3. Forwarding agents

  4. Various third-party software components and libraries (list of licenses available in a file called THIRD_PARTY_LICENSES.txt within the NETSIL Program’s code bundle)

License Period: Perpetual