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Quiksoft Corporation

Unified Master Software License Agreement

Rev. 052305.0

IMPORTANT NOTICE:

YOU SHOULD READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE YOU DOWNLOAD, INSTALL OR USE QUIKSOFT’S PROPRIETARY SOFTWARE.  BY INSTALLING OR USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS.  IF YOU DO NOT AGREE TO THE FOLLOWING TERMS AND CONDITIONS, DO NOT INSTALL OR USE THE SOFTWARE.

1. DEFINITIONS.  When used in this Agreement, “Quiksoft” means Quiksoft Corporation, and the words “you” and “your” mean the party purchasing a license to use the Software.   “Application” means a software application that you develop and which incorporates the Software.  “License Key” means a unique code provided by Quiksoft which identifies you and which unlocks or enables certain features of the Software.  “Software” means the computer programs in machine readable code provided hereunder by Quiksoft together with any License Key and/or documentation provided therewith.  “Use” means to load, read or execute the Software.
2. GRANT OF RIGHTS

2.1.    General.  The License granted for Software under this Agreement authorizes you to use the Software on a non-exclusive basis.  The Software is licensed, not sold to you and Quiksoft reserves all rights not expressly granted to you in this Agreement. 

2.2.    License Options.  Quiksoft offers several licensing options, however not all options are available for every product.   Subject to the receipt by Quiksoft of the applicable license fees, You have the right use the Software as follows:

2.2.1.   Single computer license.  If you have purchased a single computer license, you may install and use one copy of the Software on one computer, owned, leased or controlled by you.

2.2.2.   Site license.  If you have purchased a site license, you may install and use the Software on an unlimited number of computers at a single, physical location defined as a single mailing address. 

2.2.3.   Enterprise License.  If you have purchased an enterprise license, you may install and use the software on an unlimited number of computers within one organization.

2.2.4.   Developer License.  For every Developer License purchased hereunder, a single individual developer is entitled to integrate the Software into Applications and may reproduce and distribute the Applications royalty-free, subject to the terms and conditions provided herein.  A license is required for each developer who is working with the Software to develop, maintain or support Applications.  Licenses may be transferred from developer to developer, however licenses may not be transferred more than once during any 90 day period.  The Developer License is expressly subject to all of the following terms and conditions:

1. except for unlimited-developer licenses, you must maintain and provide to Quiksoft upon request a record of each developer, by name, which is licensed hereunder including any transfers of license from developer to developer and the dates on which such transfers occurred
2. the Software is fully integrated into the Application such that:
   1.                                                            i.    the functionality of the Software is not exposed through programmable interface or otherwise
   2.                                                           ii.    your end-users cannot use the Software independently of the Application
   3.                                                          iii.    the Application is significantly different from and will not compete with the Software
   4. the License Key may not be distributed in a human readable format or other manner which makes the License Key identifiable and usable outside of your Application
   5. the Software is not modified, including without limitation, the original proprietary notices contained therein
   6. each Application must be completely owned by you and bear a copyright notice in your name which is visible to the end user
   7. you do not permit further redistribution of the Application by your end-user customers
   8. you do not use Quiksoft’s name, logo or trademark in your literature or to market your Application

2.2.5.   Evaluation license.  If you have been provided with a copy of the Software for evaluation purposes, you are granted a non-exclusive, non-transferable, non-concurrent limited internal use license for evaluation purposes only. The evaluation period terminates thirty (30) days from the date on which the Software is first used, or upon any expiration date built into the Software or specified in the License Key, whichever is occurs first. Upon termination of the evaluation period, you must either purchase a license from Quiksoft or immediately cease any further use of the Software and destroy all copies of the Software.

1. RESTRICTIONS ON USE AND TRANSFER.  You may not distribute, sublicense, rent, lease, assign or otherwise transfer the Software or any rights thereto, either in whole or in part, to anyone else, except that you may, after written notification to Quiksoft, permanently transfer the Software in its entirety, provided you retain no copies of the Software and the transferee agrees to the terms and conditions of this Agreement.  Use of the Software with a License Key obtained from a source other than Quiksoft or its authorized resellers is expressly and strictly forbidden.  Quiksoft reserves the right to take any and all actions that Quiksoft, in its sole discretion, deems necessary to protect against, monitor and control the use of the Software with illegal License Keys.  You agree to ensure that anyone who uses any portion of the Software provided to you complies with the terms and conditions of this Agreement.
2. INTELLECTUAL PROPERTY RIGHTS.  You acknowledge that the Software contains copyrighted material, trade secrets, trademarks, any and all  license keys received by you, and other proprietary material of Quiksoft (“Confidential Information”), and is protected under United States and international copyright law and other applicable laws.  You may not engage in any unauthorized use or disclosure of any Confidential Information.  You agree that the source code of the Software is confidential and proprietary to Quiksoft.  Accordingly, you may not copy the Software, or decompile, disassemble, reverse engineer or create a derivative work based upon the Software, or authorize anyone else to do so.  You agree to respect and not to remove, modify, obliterate, or cancel from view any copyright, trademark, logo, confidentiality or other proprietary notice, mark or legend appearing in the Software or output generated by the Software and to reproduce and include same on each copy of Software.  
3. TERM AND TERMINATION.  Except as otherwise provided in this Agreement, the term of the license granted herein is perpetual and becomes effective when you install or use the Software.  You may terminate this license at any time by destroying any and all copies of the Software or by returning all such copies to Quiksoft.  This Agreement and the associated license for the Software will terminate automatically and without provision of notice by Quiksoft if you fail to comply with any of the terms or conditions of this Agreement or if you cease permanent use of the Software, for whatever reason.  Upon termination of this Agreement for any reason, you agree that you will destroy all copies of the Software or return all such copies to Quiksoft.  In addition to this sentence and the previous sentence, Sections 3, 4 and 6-12 shall survive any termination of this Agreement.
4. LIMITED WARRANTY.  Quiksoft warrants that the Software will perform substantially in accordance with its accompanying documentation, when operated in the execution environment specified in such documentation, for the warranty period ending thirty (30) days following the date on which you first install or first use the Software.  This limited warranty is void if failure of the Software to conform to such warranty is caused in whole or in part by (a) any defect in any hardware or other equipment used with the Software; (b) any failure of any hardware or any other equipment used with the Software to function in accordance with applicable manufacturer’s specifications for such items; (c) any alteration, modification or enhancement of the Software by you or anyone other than Quiksoft; (d) any failure by you or anyone else to follow Quiksoft’s instructions with respect to proper use of the Software; or (e) improper use, abuse, accident, neglect or negligence on the part of you or anyone other than Quiksoft.  Quiksoft will not be obligated to honor the limited warranty or provide any remedy hereunder unless the Software is returned to Quiksoft along with the original dated receipt.  Any replacement Software will be warranted for thirty (30) days following the date on which Quiksoft provides it to you.  You understand that no Software updates or upgrades are included with this limited warranty and that Quiksoft may update or revise the Software at any time and, in so doing, incurs no obligation to furnish such updates or revisions to you.
   
   EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED TO YOU “AS IS”, AND QUIKSOFT MAKES NO EXPRESS OR IMPLIED WARRANTIES WHATSOEVER WITH RESPECT TO ITS FUNCTIONALITY, CONDITION, PERFORMANCE, OPERABILITY OR USE.  WITHOUT LIMITING THE FOREGOING, QUIKSOFT DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR FREEDOM FROM INFRINGEMENT.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.  THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM ONE JURISDICTION TO ANOTHER.
5. IN NO EVENT SHALL QUIKSOFT OR ITS OFFICERS, EMPLOYEES, DIRECTORS, SUBSIDIARIES, REPRESENTATIVES, AFFILIATES AND AGENTS HAVE ANY LIABILITY TO YOU OR ANY OTHER THIRD PARTY, FOR ANY LOST PROFITS, LOST DATA, LOSS OF USE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, AND IRRESPECTIVE OF WHETHER QUIKSOFT OR ITS OFFICERS, EMPLOYEES, DIRECTORS, SUBSIDIARIES, REPRESENTATIVES, AFFILIATES AND AGENTS HAVE ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN ANY CASE, QUIKSOFT'S AND ITS OFFICERS', EMPLOYEES', DIRECTORS', SUBSIDIARIES', REPRESENTATIVES', AFFILIATES' AND AGENTS' ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF THE FEES THAT YOU PAID FOR THE SOFTWARE (IF ANY).  SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
   
   THE SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, INTENDED, OR AUTHORIZED FOR USE IN ANY MEDICAL, LIFE SAVING OR LIFE SUSTAINING SYSTEMS, OR FOR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE SOFTWARE COULD CREATE A SITUATION WHERE PERSONAL INJURY OR DEATH MAY OCCUR. Should You or Your direct or indirect customers use the Software for any such unintended or unauthorized use, You shall indemnify and hold Quiksoft and its officers, employees, directors, subsidiaries, representatives, affiliates and agents harmless against all claims, costs, damages and expenses, and attorney fees and expenses arising out of, directly or indirectly, any claim of product liability, personal injury or death associated with such unintended or unauthorized use, even if such claim alleges that Quiksoft was negligent regarding the design or manufacture of the part.
6. INDEMNIFICATION.  You agree to defend, indemnify, and hold Quiksoft and all of its employees, agents, representatives, directors, officers, partners, shareholders, attorneys, predecessors, successors, and assigns harmless from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses), relating to or arising from your use and/or distribution of the Software, or any breach of this Agreement, except to the extent such claim relates to or arises from a violation by Quiksoft of any third party copyright, trademark, trade secret or other intellectual property right.
7. EXPORT.  You agree that you will not export or transmit the Software or any Applications, directly or indirectly, to any restricted countries or in any manner that would violate United States laws and regulations as shall from time to time govern the license and delivery of technology abroad by persons subject to the jurisdiction of the United States government, including the Export Administration Act of 1979, as amended, and any applicable laws or regulations issued thereafter.
8. U.S.  GOVERNMENT RESTRICTED RIGHTS.  If you are licensing the Software on behalf of the U.S. Government or any of its agencies (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software by the Government is subject to restricted rights in accordance with Federal Acquisition Regulation (“FAR”) 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7202 for military agencies.  The Software is commercial.  Use of the Software by the Government is further restricted in accordance with the terms and conditions of this Agreement.
9. MISCELLANEOUS.  If any provision of this Agreement is held to be invalid or unenforceable under any circumstances, its application in any other circumstances and the remaining provisions of this Agreement shall not be affected.  No waiver of any right under this Agreement shall be effective unless given in writing by an authorized representative of Quiksoft.  No waiver by Quiksoft of any right shall be deemed to be a waiver of any other right of Quiksoft arising under this Agreement.  This Agreement is solely between you and Quiksoft and shall not be construed to create any third party beneficiary rights in any other individual, partnership, corporation or other entity.  This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania, without regard to its provisions governing conflicts of law.  Any and all disputes between you and Quiksoft pertaining to this Agreement shall be submitted to one arbitrator in binding arbitration within ten miles of Philadelphia, Pennsylvania in accordance with the Commercial Rules of the American Arbitration Association (“AAA”).  The arbitrator shall be experienced in computer consulting, the development of custom software, the sale of packaged software, or related services.  If you and Quiksoft do not agree on an arbitrator within sixty (60) days of the institution of the arbitration, the arbitrator shall be chose by AAA.  Evidence and argument may be presented in person or by telephone, fax, postal mail, electronic mail, and other methods of communication approved by the arbitrator.  The prevailing party in such proceeding shall be entitled to recover its actually incurred costs, including reasonable attorney’s fees, arbitration and court costs.  All hearings shall be held and a written arbitration award issued within one-hundred eighty (180) days of the date on which the arbitrator is appointed.  Judgment on the award shall be final and binding and may be entered in any court of competent jurisdiction.
10. ENTIRE AGREEMENT.  YOU AGREE THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND QUIKSOFT, AND THAT IT SUPERSEDES ANY PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS RELATING TO THE SOFTWARE AND THE SUBJECT MATTER HEREOF.  QUIKSOFT SHALL NOT BE BOUND BY ANY PROVISION OF ANY PURCHASE ORDER, RECEIPT, ACCEPTANCE, CONFIRMATION, CORRESPONDENCE OR OTHERWISE, OR BY ANY AGREEMENT BETWEEN YOU AND ANY OTHER PARTY, UNLESS QUIKSOFT SPECIFICALLY AGREES TO SUCH PROVISION IN WRITING.  NO VENDOR, DISTRIBUTOR, PROVIDER, RESELLER, OEM, SALES REPRESENTATIVE, OR OTHER PERSON IS AUTHORIZED TO MODIFY THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION OR PROMISE REGARDING THE SOFTWARE WHICH IS DIFFERENT FROM THOSE SET FORTH IN THIS AGREEMENT.