END-USER LICENSE AGREEMENT FOR AQUA DATA STUDIO SOFTWARE

This Aqua Data Studio End-User License Agreement (this "Agreement") is a

legal agreement between you
("Customer," either an entity or individual person) and AquaFold, Inc. ("AquaFol
d") (with each a "Party" and
collectively the "Parties") regarding the use of the Aqua Data Studio software p
roduct accompanying this
Agreement, including without limitation associated documentation ("Aqua Data Stu
dio" or "Software Product").
By accepting this Agreement or by copying, installing, uploading, accessi
ng or using all or any portion of
the Software Product Customer agrees to enter into this Agreement. A contract is
then formed between AquaFold
and Customer.
1

GRANT OF LICENSE

Subject to the restrictions set forth in the "LICENSE RESTRICTIONS" section, Aq

uaFold hereby grants Customer
a perpetual, non-transferable (except as set forth under the "TRANSFER TO A THIR
D PARTY" section), limited,
and non-exclusive license to use the Software Product, solely for Customer's int
ernal business purposes, and subject
to the terms and conditions set forth in this Agreement.
2

LICENSE RESTRICTIONS

Customer shall abide by the following restrictions:

2.1

PER-USER LICENSE

The Software Product is licensed on a per-named-user basis. In the event that C

ustomer is an entity, Customer must
purchase one license for each user of the Software Product. A single user may i
nstall the Software Product on as
many as two computers at any given time. Access by persons other than authorize
d users will constitute a material
breach of this Agreement.
2.2

OPEN API (APPLICATION PROGRAMMING INTERFACE) USE

Open APIs allow an authorized user to manually execute a JavaScript file that ex
ecutes the Open API by executing
the JavaScript file from within the graphical user interface of the Software Pro
duct. The user is restricted from
executing the Software Product's Open APIs in any other manner. This restrictio
n includes the execution of the
Open APIs through or from any software application other than Aqua Data Studio.
A user other than a named
licensed user is restricted from executing any Open API through any other means
including indirect execution
through command line execution, HTTP request to a socket server that would initi
ate the execution of the API or a
script that would execute the API. Shared execution of the Open API by a user o
ther than an authorized user will
constitute a material breach of this Agreement. The Licensed user may only execu
te 5 simultaneous threads that

access the Open API at any given time.

2.3

USAGE VERIFICATION AND SOFTWARE ACTIVATION

2.3.1 USAGE VERIFICATION. Customer verifies that it has completed a full audi
t of all use of all versions of
the Software Product in its computer systems and that it has properly licensed a
ll usage in all versions of
the Software Product.
2.3.2 LICENSE KEY REQUIRED. Installation and continuous use of the Software P
roduct will require one or
more license keys, which are issued by AquaFold to Customer, and contain license
related data that is
recognized by the Software Product for automated license management purposes.
2.3.3 SOFTWARE ACTIVATION. AquaFold's Software Product may use Customer's int
ernal network and
Internet connection for the purpose of (a) transmitting license-related data at
the time of installation,
registration, use or update to an AquaFold-operated license server and (b) valid
ating the authenticity of the
license-related data in order to protect AquaFold against unlicensed or illegal
use of the Software Product.
Activation is based on the exchange of license related data between Customer's c
omputer and an AquaFold
license server. Customer agrees that AquaFold may use these measures to follow
any applicable
requirements.
2.3.4 PIRACY AND REVERSE ENGINEERING OF LICENSE KEYS. Customer hereby represe
nts and
warrants that neither Customer nor any of its employees or contractors have atte
mpted to circumvent,
interfere with or remove any license key or license metering mechanism which is
part of the Software
Product, or use any computer under the ownership or control of Customer to do so
, or assisted any third
party to do so (including without limitation the purchase or download of counter
feit license keys). Breach
of this Section will constitute a material breach of this Agreement.
2.3.5 UNAUTHORIZED USE OR DISTRIBUTION. Customer may not, whether through del
iberate or
negligent act or act of omission: (a) distribute or cause the distribution of th
e Software Product to any third
party other than an Authorized User; or (b) directly access or use any embedded
software independently of
the Software Product. Any such violations will entitle AquaFold to, in addition
to any other right or claim
that AquaFold may have against Customer, retroactively charge Customer, in addit
ion to any other fees
payable by Customer under this Agreement, a fee calculated based on the number o
f prohibited
distributions times the current respective list prices that AquaFold charges for
the Software Product or
embedded software respectively.
2.4

EVALUATION LICENSE

Customer may install or allow users, whether they are employees or consultants,
to install one copy of the latest
version of the Software Product. The Software Product must be downloaded directl
y from the AquaFold website on
the day the Software Product is installed, for the sole purpose of user's evalua
tion of the Software Product for a
period of no more than 14 days. Customer may not have more than 5 employees or c
ontractors evaluating the
Software Product at any given time. Evaluation of the Software Product with ins
tallers acquired from other sources
or downloaded on a day previous to the day of installation is prohibited. Evalu
ation of versions of the Software
Product other than the latest version is prohibited. The Software Product conta
ins a feature that will automatically
disable it after the expiration of the evaluation period. Customer shall not di
sable, destroy, or remove this feature of
the Software Product, and any attempt to do so will constitute a material breach
of this Agreement. Immediately
following the 14-day evaluation period, Customer shall either delete the evaluat
ion copy from user's computer or
continue to use the Software Product. Customer's continued use of the Software
Product beyond the evaluation
period will require the purchase of a license. AquaFold may contact Customer or
their employer after Customer has
downloaded the software from the AquaFold website or after the expiration of eva
luation period.
2.5

VIRTUALIZED USE

Customer may install one copy of the Software Product on a computer file server
within Customer's internal
network for the sole and exclusive purpose of using the Software Product through
commands, data or instructions
(e.g. scripts) from another desktop computer on Customer's internal network, pro
vided that the total number of users
who access or use the Software Product on such computer file server do not excee
d the permitted number of
Software Product authorized users.
2.6

TRANSFER TO A THIRD PARTY

Licenses and user names may not be shared or used concurrently by different indi
vidual users. The license granted
under the "GRANT OF LICENSE" section may only be transferred as expressly allowe
d in this Agreement and only
with AquaFold's written consent. Customer may permanently and wholly transfer a
ll rights under this Agreement,
provided Customer (a) retain no instances or copies (whole or partial) of the So
ftware Product, (b) permanently and
wholly transfer any and all copies of the Software Product (including all compon
ent parts, the media and printed
materials, any upgrades, this Agreement, and, if applicable, the Certificate of
Authenticity) to the transferee and (c)
the transferee first agrees to abide by all of the terms of this Agreement. If
the Software Product is an upgrade, any
transfer must include any and all prior versions of the Software Product and any
and all of Customer's rights therein,
if any.
2.7

ACADEMIC / EDUCATIONAL EDITION SOFTWARE

If an "Academic/Educational License" is indicated on Customer's Purchase Order,

Customer's right to use the
Software Product will be limited to the "Academic/Educational Edition" of the So
ftware Product. Customer must be
a Qualified Educational User to use the Software Product under this type of lice
nse, and use of the Software Product
is limited to Academic/Educational Use. For purposes of this Agreement, "Academ
ic/Educational Use" means use
for the benefit of the non-commercial, educational activities of an educational
institution such as a university in
classrooms or for non-commercial research purposes, excluding privately funded r
esearch. "Qualified Educational
Users" are limited to enrolled students, faculty, and staff.
2.8

OTHER RESTRICTIONS

2.8.1 The Software Product is licensed, not sold. This Agreement gives Custome
r only some rights to use the
Software Product. AquaFold reserves all other rights. Unless applicable law give
s Customer more rights
despite this limitation, Customer may use the Software Product only as expressly
permitted in this
Agreement. In doing so, Customer must comply with any technical limitations of t
he Software Product that
only allow Customer to use the Software Product in certain ways. Except as expli
citly authorized in this
Agreement, Customer shall not itself, or through any parent, subsidiary, affilia
te, agent or other third party:
(a)

modify, reverse engineer, decompile or disassemble the Software Product;

(b)
write or develop any derivative software or any other software program b
ased upon the Software Product;
(c)

sell, lease, license or sublicense the Software Product;

(d)
interfere with, remove, disable, or modify any license key or license mo
nitoring mechanism in or provided
with the Software Product;
(e)
t;

make more copies of the Software Product than specified in this Agreemen

(f)
allow access to the Software Product by any person other than Customer,
Customer's employees or
contractors, or otherwise provide or make the Software Product available to any
third party without
AquaFold's prior written consent; or
(g)
use the Software Product to provide processing services to third parties
, or otherwise use the Software
Product on a "service bureau" basis.
2.8.2 Customer may create one copy of the Software Product for back-up and arc
hival purposes. Customer may
not copy any documentation accompanying the Software Product except as necessary
to provide such
documentation to licensed users of the software product. For the avoidance of d
oubt, Software Product

upgrades and updates shall only be used to replace all or part of previous versi
ons or releases of the
Software Product licensed to Customer. No additional licenses to the Software P
roduct are granted upon
Customer's receipt of upgrades or updates, or keys thereto.
3

SUBSCRIPTION

3.1

TERM AND TERMINATION OF SUBSCRIPTION

The initial purchase of a license to the Software Product includes a one-year Su

bscription to receive maintenance,
support and version upgrade services, as set forth in this section, commencing o
n the date AquaFold sends electronic
confirmation with registration and license key to the email address provided by
Customer. Customer may renew the
Subscription after the initial Subscription period at AquaFold's then-current Su
bscription renewal rates. AquaFold
may refuse to renew the Subscription upon no less than 12 months prior notice to
Customer, in the event AquaFold
elects to generally discontinue Subscription Services for the Software Product.
Termination of the Subscription will
not affect the term of the Software Product license. AquaFold will in no event
be required to provide Subscription
Services for any version of the Software Product beyond one major version releas
e prior to the most current version
release.
3.2

SUBSCRIPTION DUTIES

For so long as Customer is current in the payment of all Subscription Fees, Aqua
Fold shall provide Subscription
Services as specified in this section.
3.3

SUBSCRIPTION SERVICES

Subscription Services means that AquaFold will provide: (a) updates and upgrade
s to the Software Product, if any,
made publicly available by AquaFold to its customers during the term of the Subs
cription, and (b) support services
as set forth in the "SOFTWARE PRODUCT SUPPORT" section.
3.4

ELIGIBILITY OF SOFTWARE

Subscription Services will not include services requested as a result of, or wit
h respect to, the following, and any
services requested as a result thereof will be billed to Customer at AquaFold's
then-current rates:
(a)
accident; unusual physical, electrical or electromagnetic stress; neglec
t; misuse; failure of electric power,
air conditioning or humidity control;
(b)
improper installation or use of the Software Product by Customer that de
viates from any operating
procedures established by AquaFold in the applicable documentation;
(c)
modification, alteration or addition of the Software Product undertaken
by persons other than AquaFold or

AquaFold's authorized representatives; or

(d)

software or technology of any party other than AquaFold.

3.5

CUSTOMER'S RESPONSIBILITIES

AquaFold's obligations under this section are subject to the following:

(a)
Customer shall provide supervision, control and management of the use of
the Software Product. In
addition, Customer shall implement procedures for the protection of information
and the implementation of
backup facilities in the event of errors or malfunction of the Software Product;
(b)
Customer shall document and promptly report all errors or malfunctions o
f the Software Product to
AquaFold;
(c)
Customer shall take all steps necessary to carry out procedures for the
rectification of errors or
malfunctions within a reasonable time after such procedures have been received f
rom AquaFold;
(d)
Customer shall maintain a current backup of the Software Product and all
related data;
(e)
Customer shall properly train its personnel in the use and application o
f the Software Product;
(f)
Customer shall designate a single point of contact for Subscription Serv
ices; and
(g)
upon AquaFold's request, Customer shall provide proof, prior to delivery
of Subscription Services, that
Customer has purchased a license for the Software Product and that Customer's su
bscription is active.
3.6

SOFTWARE PRODUCT SUPPORT

3.6.1 Software Product support provided shall consist of (a) clarification of

functions and features of the
Software Product; (b) clarification of the Software Product documentation; (c) g
uidance in the operation of
the Software Product; and (d) error verification, analysis and correction of ver
ifiable errors.
3.6.2 Support is provided during business hours from 8:00 a.m. through 6:00 p.
m. Pacific Standard Time except
for business holidays as observed by AquaFold. All communications related to the
Software Product
support shall be conducted via e-mail or by means of a WEB based ticket-tracking
system if the latter
becomes available to Customer.
3.6.3 The Software Product allows significant customization, which includes fu
nctionality that may be added to
the Software Product by Customer that is not provided as part of product release
. Customization could take
the form of scripting code developed by Customer to use alongside the Software P
roduct. Such

customization shall be outside of the Software Product Support activities set fo

rth in this section. For such
customization support shall be limited to general guidance. Customer is solely r
esponsible for the design
and development of such customization.
3.6.4 Customer shall establish and maintain processes and resources to provide
internal Software Product
Support for Customer's users that shall include (a) direct response to users reg
arding inquiries concerning
functionality, operation or performance of the Software Product and customizatio
n made by Customer, (b)
direct response to users with respect to problems or issues with the Software Pr
oduct, (c) a diagnosis of
problems or issues of the Software Product and (d) resolution of issues related
to customization of the
Software Product and isolation of issues that shall be reported to AquaFold tech
nical support.
3.6.5 Customer shall provide reasonable training to its employees representing
point of contact to AquaFold
Software Product support both in the functionality of the Software Product and t
he technical environment
within which the Software Product is used.
3.7

SUBSCRIPTION FEES

The "Subscription Fees" shall be paid as set forth in the "FEES AND PAYMENT" sec
tion. Subscription Fees
charged for each one-year period shall be set forth in AquaFold's price list in
effect as of the date of invoice.
AquaFold may decline to renew the Subscription at any time upon no less than one
year's notice if AquaFold
generally discontinues its Subscription program for the Software Product. If Cu
stomer elects not to renew the
Subscription (maintenance, support and version upgrades), Customer may re-enroll
only upon payment of the annual
Subscription Fee for the coming year and all Subscription Fees that would have b
een paid had Customer not allowed
the Subscription to expire. The Subscription Fee may be modified by AquaFold at
any time without notice.
3.8

NON-RENEWAL OF SUBSCRIPTION

3.8.1 In the event that Customer elects not to renew the Subscription after th
e initial or subsequent subscription
periods, Customer will not be eligible to receive Software Product updates, upgr
ades or support services.
3.8.2 Customer will be able to purchase additional licenses of the Software Pr
oduct after the expiration of the
subscription. Purchasing additional licenses of the Software Product will be lim
ited to the supported
versions of the Software Product. Customer will not be able to obtain evaluation
licenses of the Software
Product after the expiration of the Subscription.
3.8.3 For a period of up to six months beyond the expiration of the Subscripti
on, Customer will have the ability
to reassign licenses of the Software Product as set forth in the "LICENSE RESTRI

CTIONS" section. The

reassignment of licenses is only possible during the active/current Subscription
period and for the six
months following the expiration of the Subscription if the Subscription is not r
enewed.
4

RIGHT TO AUDIT

4.1
At AquaFold's written request, but not more frequently than annually, du
ring the term of this Agreement and
for a period of one year thereafter, Customer shall furnish AquaFold with a repo
rt signed by Customer's
authorized representative verifying that the Software Product is being used purs
uant to the provisions of this
Agreement and the applicable purchase orders. The report shall include the numbe
r of users of the Software
Product. Customer is responsible for implementing reasonable means to monitor it
s compliance with the
terms of this Agreement.
4.2
AquaFold reserves the right to audit Customer's use of the Software Prod
uct, no more than once annually,
during the term of this Agreement and for a period of one year thereafter at Aqu
aFold's expense. Customer
shall permit AquaFold or its agents access to Customer's computer systems and ph
ysical facilities for such
audit. AquaFold shall schedule such audit with at least thirty (30) days advance
d notice to Customer. Audit
shall be conducted during normal business hours at Customer's facilities and sha
ll not unreasonably interfere
with Customer's business activities.
4.3
If such audit reveals that Customer's use of the Software Product exceed
s the number of users for which
Customer has purchased licenses, Customer shall pay for the additional licenses
or license upgrades and the
unpaid license fees at AquaFold's then-current list prices, such amounts to be i
mmediately due and payable,
including, at AquaFold's option, interest in the amount of 1% per month calculat
ed from the date of the first
un-permitted use.
4.4
If any violation of this Agreement is revealed in the result of such aud
it, in addition to all payments and fees
set forth in this section, Customer shall reimburse AquaFold the cost of the aud
it.
5

TERM AND TERMINATION

Customer may terminate this Agreement upon AquaFold's receipt of written notice
by Customer, and Customer has,
on or before the date of such notice, deleted all copies of the Software Product
installed on Customer's computers or
media within Customer's possession or control. AquaFold may immediately termina
te the software license granted
hereunder if Customer (a) breaches any material term of this Agreement and does
not cure such breach within 10
business days of receiving written notice thereof, or (b) ceases business operat

ions, assigns its assets for the benefit

of creditors, becomes bankrupt, or otherwise seeks to dispose of all or substant
ially all of its assets. Upon such
termination, Customer shall immediately cease all use of, and delete or destroy
all copies of the Software Product
and the documentation in Customer's possession or control. The Subscription and
Support Services are also deemed
terminated immediately upon termination of this Agreement. If this Agreement is
terminated pursuant to this Section
5, then Section 5 and Section 8.4 will survive the termination of this Agreement
and will remain in full force and
effect. The termination of this Agreement will not relieve any Party from any li
ability for any breach of this
Agreement occurring prior to termination.
6

INTELLECTUAL PROPERTY

6.1

INTELLECTUAL PROPERTY OWNERSHIP AND COPYRIGHT PROTECTION. Copyright and

trademark laws and international treaty provisions protect the Software Product.
AquaFold retains all right,
title and interest in and to the Software Product, the accompanying printed mate
rials and any copies of the
Software Product. AquaFold reserves all rights not expressly granted herein.
6.2
ALTERATION OF TRADEMARK. Customer may not remove, modify or alter any A
quaFold copyright or
trademark notice from any part of the Software Product, including but not limite
d to any such notices
contained in the physical and/or electronic media or documentation, in any of th
e runtime resources and/or in
any web-presence or web-enabled notices, code or other embodiments originally co
ntained in or otherwise
created by the Software Product.
7

LIMITED WARRANTY

7.1
AquaFold warrants that for the term of one year (a) the Software Product
will perform in accordance with
AquaFold's written performance specifications accompanying it on delivery (or ot
herwise published by
AquaFold), and (b) any Subscription services provided by AquaFold shall be in co
mpliance with the written
Subscription description provided to Customer by AquaFold.
7.2
AquaFold has performed generally recognized anti-virus scanning on the S
oftware Product, and the version
of the Software Product delivered to Customer is, as determined according to suc
h scanning, free of viruses
or malicious code.
7.3
In the event of any breach of warranty or other duty owed by AquaFold, A
quaFold's entire liability and
Customer's sole and exclusive remedy shall be, at AquaFold's sole option, either
(a) return of the price paid
by Customer for the Software Product, if any, or (b) repair or replacement of th
e defective Software Product.
Any replacement or repaired Software Product will be warranted for either the re

mainder of the original

warranty period or 30 days, whichever is longer. This limited warranty will only
apply if (a) the Software
Product has been properly installed and used at all times in accordance with the
instructions for use, (b) the
Software Product has not been modified by Customer or any third party and (c) th
e Software Product failure
is not the result of accident, abuse or misapplication by Customer.
8

INFRINGEMENT INDEMNITY

8.1
So long as Customer is in compliance with this Agreement, AquaFold shall
defend, or at its option, settle any
and all claims, demands, or lawsuits brought against Customer ("Claims"), and pa
y any related third party
damage costs, and expenses (including, without limitation, reasonable legal fees
) arising from or incurred by
reason of any infringement or alleged infringement of any copyright or trade sec
ret by the provision or use of
the Software Product.
8.2
In the event of a Claim, AquaFold may, at its own option and discretion,
take one or more of the following
actions: (a) procure for Customer's benefit the right to continue to use the Sof
tware Product as described in
this Agreement; or (b) modify or replace the Software Product so that there is n
o further infringement,
provided that such modification or replacement will not substantially decrease t
he functionality of the
Software Product. In the event neither (a) nor (b) are reasonably possible, Aqua
Fold may terminate this
Agreement and refund to Customer all license fees and current Subscription fees
paid for the Software
Product.
8.3
AquaFold's obligations under this section are subject to Customer allowi
ng AquaFold sole control of the
defense, assistance with such defense at AquaFold's expense and timely written n
otice of the Claim.
8.4
In the event that a legal judgment declares that Software Product infrin
ges on a patent of Customer, then
Customer hereby grants to AquaFold a perpetual, worldwide, non-exclusive, no-cha
rge, royalty-free,
irrevocable patent license to make, have made, use, offer to sell, sell, import,
and otherwise transfer the
Software Product, where such license applies only to those patent claims licensa
ble by Customer that are
necessarily infringed by the Software Product. If Customer institutes patent lit
igation against any entity
(including a cross-claim or counterclaim in a lawsuit) alleging that the Softwar
e Product constitutes direct or
contributory patent infringement, Customer shall defend, or settle any and all c
laims, demands, or lawsuits
brought against AquaFold by Customer, and pay any related third party damage cos
ts, and expenses
(including, without limitation, reasonable legal fees) arising from or incurred
by reason of any infringement
or alleged infringement of any patent by the provision or use of the Software Pr

oduct.
9

FEES AND PAYMENT

The Software Product license fees and then-current annual Subscription fees (col
lectively, "Fees") will be due and
payable in full to AquaFold no later than 30 days after the date of AquaFold's i
nvoice. Payment must be
accompanied by the Contract Reference Number indicated on the invoice, and be ad
dressed and sent to the billing
contact and address indicated on the invoice. Any Fee amounts not paid within 3
0 days will be subject to interest
charges of 1% of the overdue amount per month, or the highest rate allowable und
er law, whichever is less. The
Fees paid by Customer exclude all applicable use and other taxes and all applica
ble export and import costs, customs
duties and similar charges. Fees are expressed in US Dollars, and are non-refun
dable.
10

NOT FAULT TOLERANT

THE SOFTWARE PRODUCT IS NOT FAULT TOLERANT. CUSTOMER HAS INDEPENDENTLY

DETERMINED HOW TO USE THE SOFTWARE PRODUCT IN THE INTEGRATED SOFTWARE
APPLICATION OR SUITE OF APPLICATIONS THAT IT IS LICENSING, AND AQUAFOLD HAS RELI
ED
ON CUSTOMER TO CONDUCT SUFFICIENT TESTING TO DETERMINE THAT THE SOFTWARE
PRODUCT IS SUITABLE FOR SUCH USE.
11

NO OTHER WARRANTIES

CUSTOMER ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE PRODUCT TO
ACHIEVE ITS INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS
OBTAINED FROM THE SOFTWARE PRODUCT. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, AQUAFOLD AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND
CONDITIONS, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPL
IED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NONINFRINGEMENT WITH RESPECT TO THE SOFTWARE PRODUCT. THE LIMITED WARRANTY
GIVES CUSTOMER SPECIFIC LEGAL RIGHTS. CUSTOMER MAY HAVE OTHER RIGHTS THAT VARY
FROM STATE TO STATE. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON
AN
IMPLIED WARRANTY SO THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER.
12

LIMITATION OF LIABILITY

TO THE EXTENT PERMITTED BY APPLICABLE LAW, AQUAFOLD WILL NOT BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF
ANY KIND, OR ANY OTHER DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION,
DAMAGES RESULTING FROM: (A) LOSS OF USE, DATA, PROFITS, GOODWILL AND/OR OTHER
INTANGIBLE LOSSES (INCLUDING WITHOUT LIMITATION THE INABILITY TO USE THE SOFTWAR
E
PRODUCT OR SUBSCRIPTION SERVICES), OR (B) DELAYS OR BUSINESS INTERRUPTIONS ARISI
NG
OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SOFTWARE PRODUCT,
LOSS OF BUSINESS INFORMATION OR DATA, COST OF COVER OR ANY OTHER PECUNIARY LOSS)

,
WHETHER BASED ON BREACH OF THIS AGREEMNET, WARRANTY BREACH, TORT, OR OTHERWISE,
ARISING FROM CUSTOMER'S USE OF THE SOFTWARE PRODUCT, EVEN IF AQUAFOLD HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED HEREIN, AQUAFOLD'S LIABILITY AND THE LIABILITY OF EACH OF ITS
OFFICERS, DIRECTORS, INVESTORS, EMPLOYEES, AGENTS, ADVERTISERS, LICENSORS, SUPPL
IERS,
SERVICE PROVIDERS AND OTHER CONTRACTORS TO CUSTOMER OR ANY THIRD PARTIES UNDER
ANY CIRCUMSTANCE IS LIMITED TO THE AMOUNT CUSTOMER ACTUALLY PAID TO AQUAFOLD
PURSUANT THIS AGREEMENT FOR ANY AND ALL INJURIES, DAMAGES, LOSSES, EXPENSES OR
CLAIMED EXPENSES (INCLUDING ATTORMEY FEES), ARISING OUT OF THIS AGREEMENT FROM
ANY CAUSE OR CAUSES. THE FOREGOING MONETARY LIMITATION AND/OR COMPENSATION
EXCLUDES FRAUD, GROSS-NEGLIGENCE AND WILLFUL MISCONDUCT ON THE PART OF
AQUAFOLD. CUSTOMER ACKNOWLEDGES AND AGREES THAT AQUAFOLD WOULD BE UNWILLING
TO MAKE AVAILABLE THE SOFTWARE PRODUCT ABSENT THE FOREGOING LIMITATIONS OF
LIABILITY, WHICH FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
13

GENERAL PROVISIONS

13.1
CONSENT TO JURISDICTION AND FORUM SELECTION. Parties agreed that all ac
tions or proceedings
arising in connection with this User Agreement shall be tried and litigated excl
usively in the State and
Federal courts located in the County of Santa Clara, State of California, United
States of America. The
aforementioned choice of venue is intended by the Parties to be mandatory and no
t permissive in nature,
thereby precluding the possibility of litigation between the Parties with respec
t to or arising out of this
Agreement in any jurisdiction other than that specified in this paragraph. Each
Party hereby waives any right
it may have to assert the doctrine of forum non convenient or similar doctrine o
r to object to venue with
respect to any proceeding brought in accordance with this paragraph, and stipula
tes that the State and Federal
courts located in the County of Santa Clara, State of California, United States
of America shall have personal
jurisdiction and venue over each of them for the purpose of litigating any dispu
te, controversy, or proceeding
arising out of or related to this Agreement. Each Party hereby authorizes and ac
cepts service of process
sufficient for personal jurisdiction in any action against it as contemplated by
this paragraph by registered or
certified mail, return receipt requested, postage prepaid, to its address for th
e giving of notices as set forth in
this Agreement. Any final judgment rendered against a Party in any action or pro
ceeding shall be conclusive
as to the subject of such final judgment and may be enforced in other jurisdicti
ons in any manner provided by
law.
13.2
COMPLIANCE WITH LAWS. This Agreement is expressly made subject to any l
aws, regulations, orders
or other restrictions on the export from the U.S. of the Software Product or of
information related thereto
which may be imposed from time to time by the U.S. government ("U.S. Export Laws
"). Customer's use of
the Software Product must be strictly in accordance with law. Customer shall ob

tain any required non-U.S.

governmental authorizations, including without limitation any import licenses an
d foreign exchange permits,
and, if applicable, shall file or register this Agreement with the appropriate a
uthorities.
13.3
SEVERABILITY; WAIVER. If any provision of this Agreement is held to be
invalid or unenforceable for
any reason, the remaining provisions will continue in full force without being i
mpaired or invalidated in any
way and the invalid or unenforceable provision shall be enforced to the full ext
ent permitted. The waiver by
either Party of a breach of any provision of this Agreement will not operate or
be interpreted as a waiver of
any other or subsequent breach.
13.4
SUCCESSORS AND ASSIGNS. Neither Party may assign its rights hereunder o
r delegate its duties under
this Agreement without the written consent of the other Party, which shall not b
e unreasonably withheld,
except that each Party may assign its rights hereunder in connection with a merg
er, acquisition or sale of all
or substantially all of such Party's assets.
13.5
EXPORT RESTRICTIONS. The Software Product is controlled under ECCN 5D992
of the Export
Administration Regulations ("EAR") and thus may not be exported or re exported t
o or downloaded by any
person in any country controlled for anti terrorism reasons under the EAR 742.15
(a), Group E-1 (Supplement
No. 1 to Part 740, "Terrorist Supporting Countries"), which include Iran, North
Korea, Cuba, Syria and
Sudan. Moreover, the Software Product may not be exported or re-exported to or d
ownloaded by any person
or entity subject to US sanctions regardless of location under the EAR Part 736,
General Prohibition Five.
(Refer to http://www.bis.doc.gov for denied persons or entities list.) AquaFold
is making this software
available to Customer for download only on the condition that Customer certifies
that Customer is not such a
person or entity and that the download is not otherwise in violation of US expor
t control and sanctions
regulations.
13.6
AMBIGUITIES. Customer agrees that it and its counsel have participated
fully in the review and revision of
this Agreement. Any rule of construction to the effect that ambiguities are to b
e resolved against AquaFold
shall not apply in interpreting this Agreement. The language in this Agreement s
hall be interpreted as to its
fair meaning and not strictly for or against any Party.
13.7
FORCE MAJEURE. Neither Party shall be responsible for failure or delay
of performance if caused by: an
act of war, hostility or sabotage; act of God; electrical, internet, or telecomm
unication outage that is not
caused by the obligated Party; government restrictions (including the denial or
cancellation of any export or
other license); or other event outside the reasonable control of the obligated P
arty. Both Parties will use

reasonable efforts to mitigate the effect of a force majeure event. If such even
t continues for more than 90
days, either Party may cancel unperformed services upon written notice. This sec
tion does not excuse either
of AquaFold's obligations to take reasonable steps to follow its normal disaster
recovery procedures or
Customer's obligation to pay for the licenses and services provided.
13.8
ENTIRE AGREEMENT AND AMENDMENT. This Agreement and the Exhibits attache
d hereto set forth
the entire understanding and Agreement of the Parties, and supersedes any and al
l oral or written agreements
or understandings between the Parties, as to the subject matter of this Agreemen
t. This Agreement shall
control over any conflicting provisions of any Customer purchase order or other
similar business form, and
such conflicting provisions are expressly rejected, unless specifically acknowle
dged and agreed to by the
Parties in writing.