CALGARY SCIENTIFIC INC.-PureWeb(R) DESIGN End User License Agreement-THIS END USER LICENSE AGREEMENT ("EULA") IS A LEGAL AND BINDING AGREEMENT BETWEEN CALGARY SCIENTIFIC INC. ("CSI") AND LICENSEE, BEING THE PARTY THAT HAS CLICKED "ACCEPT" ON INSTALLATION AND/OR ANY PARTY THAT OTHERWISE ACCESSES OR USES THE SOFTWARE.  THIS EULA GRANTS LIMITED RIGHTS TO USE OF THE SOFTWARE AND, BY MEANS OF THE SOFTWARE, THE DATA AND THE HARDWARE, SUBJECT TO THE TERMS AND CONDITIONS HEREOF, ALL OF WHICH LICENSEE ACCEPTS IN CONSIDERATION OF THE MUTUAL PROMISES AND BENEFITS SET OUT BELOW AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS IRREVOCABLY ACKNOWLEDGED.  ANY USE OF THE SOFTWARE OTHER THAN AS PERMITTED IN THIS EULA IS PROHIBITED.-By ACCEPTING this EULA and/or by using and/or BY accessing the SOFTWARE AND/OR ANY CSI DATA, LICENSEE agrees to be legally bound by all the terms and conditions herein. CSI and Licensee may be referred to individually as a "Party" and collectively as the "Parties."  -ALL RIGHTS, LICENSES AND PERMISSIONS GRANTED BY CSI HEREUNDER ARE STRICTLY CONDITIONAL UPON LICENSEE'S ACCEPTANCE OF AND CONTINUOUS ADHERENCE TO ALL THE TERMS AND CONDITIONS OF THIS EULA.
1. DEFINITIONS. -a) "Data" means computer programs, data and other information created, modified, manipulated and processed by the Software. -b) "Field of Use" means, unless otherwise agreed in writing by CSI, internal installation and use on a single computer within Licensee's operations only, and shall expressly exclude any other installation, use or distribution of the Software.  For greater certainty, installation or use by affiliates or other related Parties shall not be included in the Field of Use without the express agreement of CSI in writing.  -c) "Licensee Data" means computer programs, data and other information created, modified, manipulated and processed by the Software and owned by Licensee.  Licensee, or its licensors, as the case may be, retains ownership of its Data and CSI gains no right, title or interest therein.   -d) "Software" means and consists of the following: a disk image that contains the executable program for PureWeb STK, along with help files, a user guide (in PDF format) and sample Data, which shall be included in the Software and subject to the provisions of this Agreement regarding the Software.
2. GRANT OF LICENSE.   All rights not granted in this EULA are expressly reserved. Subject to Licensee's compliance with all the terms and conditions of this EULA, during the term for which Licensee has paid a license fee, CSI hereby grants to Licensee, subject to the restrictions set forth in this EULA, a personal, nontransferable, nonexclusive, revocable and limited license to install, run and use the Software within the Field of Use.  Unless otherwise agreed by CSI in writing, Licensee may install and use the Software only on one (1) computer for purposes of processing, editing, and viewing Data and Licensee shall be entitled to make and maintain, during the term of this EULA, one back up copy of the Software.   Licensee may copy and use the sample Data with the Field of Use but Licensee shall not become the owner of any right, title or interest in or to such sample Data, and any modifications of the sample Data, or works derived from or based on such sample Data, shall remain the property of Licensor.
3. RESTRICTIONS.  Other than as expressly permitted by CSI in writing, Licensee will not:-a) copy, license, sublicense, publish, disseminate, distribute, disclose or otherwise transfer the Software in any way, or attempt to do any one or more of the foregoing; -b) modify or create derivative works or derivative versions of or replicate the Software;-c) use the Software to create software with similar functionality; -d) install, run or use the Software outside the Field of Use unless otherwise agreed to in writing by CSI;-d) reverse engineer, decompile, disassemble, reverse compile or otherwise seek to derive source code from the Software or the sample Data.  -The Software constitutes confidential information and proprietary information of CSI, which will be used by Licensee only pursuant to the provisions of this EULA and will not be used or disclosed otherwise.  In the event that Licensee breaches this EULA, Licensee acknowledges and agrees that CSI will suffer irreparable harm, which cannot be properly compensated by money damages, and Licensee agrees to, and provides any necessary consent to, CSI seeking equitable remedies, including an injunction and specific performance, without the necessity to post bond or security or prove or show the likelihood of loss or damage, in order to restrain any breach by Licensee and to compel performance by Licensee of this EULA.
4. OWNERSHIP.  As between the Parties, Licensee acknowledges and agrees that CSI owns all right, title and interest in and to the Software, including all copyrights, patents, trade secrets and other intellectual property rights therein.
5. TERMINATION.  This EULA may be terminated at any time by CSI upon any default hereunder by Licensee.  Upon termination of this EULA for any reason, Licensee shall immediately cease all use of and/or access to the Software.  At the request of CSI, Licensee shall return or certify the destruction of all copies of the Software.
6. DISCLAIMERS.  -ALL USE OF THE SOFTWARE IS AND SHALL REMAIN SOLELY AT LICENSEE'S OWN RISK.  THE SOFTWARE IS PROVIDED ON A STRICTLY "AS IS", "WHERE IS" AND "AS AVAILABLE" BASIS.  CSI MAKES AND LICENSEE RECEIVES NO REPRESENTATION, WARRANTY, TERM, CONDITION OR GUARANTEE OF ANY KIND WITH RESPECT TO THE SOFTWARE, OR AS TO ITS OPERATION, OR AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY INFORMATION, DATA OR CONTENT OBTAINED FROM OR THROUGH THE USE OF THE SOFTWARE.
CSI DOES NOT REPRESENT OR WARRANT THAT THE USE OF THE SOFTWARE WILL BE DEPENDABLE, SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SOFTWARE WILL OPERATE PROPERLY OR AT ALL IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA.
CSI DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS OR EXPECTATIONS, EVEN IF SUCH REQUIREMENTS OR EXPECTATIONS WERE OR ARE COMMUNICATED TO CSI.
WHILE CSI TAKES REASONABLE PRECAUTIONS AGAINST VIRUSES OR OTHER MALICIOUS CODE, CSI DOES NOT WARRANT THAT THE SOFTWARE WILL BE FREE OF VIRUSES, AND, WHILE CSI MAKES REASONABLE EFFORTS TO DO SO, CSI DOES NOT WARRANT THAT ERRORS OR DEFECTS WILL BE CORRECTED.
CSI EXPRESSLY DISCLAIMS ANY AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING FROM CUSTOM OR A COURSE OF TRADE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, ANY IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY OR CONDITION OF COMPLIANCE WITH ANY DESCRIPTION.
CSI GIVES NO WARRANTY OR CONDITION OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
The provisions of this section shall survive any termination of this Agreement, howsoever caused.
7. LIMITATION OF LIABILITY.  IN NO EVENT SHALL CSI BE LIABLE TO LICENSEE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THIS EULA OR LICENSEE'S USE OF THE SOFTWARE, OR OF THE DATA, OR BOTH, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY OR CONDITION, BREACH (INCLUDING WITHOUT LIMITATION MATERIAL OR FUNDAMENTAL BREACH) OR REPUDIATION OF CONTRACT, TORT, NEGLIGENCE (INCLUDING GROSS NEGLIGENCE), BREACH OF ANY DUTY, OR OTHERWISE, OR FOR FAILURE TO REALIZE EXPECTED SAVINGS, REVENUES, PROFITS OR RESULTS, EVEN IF CSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.   The provisions of this section shall survive any termination of this Agreement, howsoever caused.
8.  INDEMNIFICATION BY LICENSEE.  LICENSEE SHALL INDEMNIFY AND FOREVER SAVE AND HOLD CSI, AND CSI'S AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, COSTS, DAMAGES, LOSSES, LIABILITIES, AND/OR EXPENSES (INCLUDING LAWYERS' FEES AND COSTS) ARISING OUT OF OR IN CONNECTION WITH LICENSEE'S USE OF THE SOFTWARE (INCLUDING ANY AND ALL INFORMATION, DATA AND CONTENT RESULTING FROM OR DERIVED FROM SUCH USE) OR ANY BREACH OF THIS AGREEMENT BY LICENSEE.   The provisions of this section shall survive any termination of this Agreement, howsoever caused.
9. MONETARY LIMITATION. ANY CLAIM BY LICENSEE FOR DAMAGES OR COMPENSATION SHALL BE LIMITED IN EVERY CASE TO A MAXIMUM AMOUNT OF THE FEES AND CHARGES PAID BY LICENSEE TO CSI UNDER THIS EULA FOR A PERIOD OF ONE YEAR PRIOR TO SUCH CLAIM ARISING.  The provisions of this section shall survive any termination of this Agreement, howsoever caused.
10.   GOVERNING LAW. This EULA and the rights and obligations of the Parties hereunder shall be governed by and interpreted in all respects in accordance with the substantive laws of the Province of Alberta, Canada, without regard to its conflicts of laws provisions.  Each Party agrees that any dispute hereunder shall be settled by the courts of Alberta in Calgary, Alberta.   Licensee covenants to not commence or join in any class action litigation against CSI related to this EULA, or any similar agreement with CSI, or arising out of Licensee's installation or use of the Software.
11. SURVIVAL.  The following provisions shall survive termination, howsoever caused, of this EULA: Sections 3 ("Restrictions"); 4 ("Ownership"); 5 ("Termination"); 6 ("Disclaimers"); 7 ("Limitation of Liability"); 8 ("Indemnification"); 9 ("Monetary Limitation"); 10 ("Governing Law"); 12 ("Severance"); and, 14 ("Enurement").
12. SEVERANCE. If any provision of this Agreement shall be determined to be void by any court of competent jurisdiction, then such determination shall not affect any other revisions of this Agreement, and all such other provisions shall remain in full force and effect, and it is the intention of the Parties hereto that if any provision of this Agreement is capable of two constructions, one of which would render the provision void and the other of which would render the provision valid, then the provisions shall have the meaning that renders it valid.
13. INDEPENDENT CONTRACTORS. No relationship of principal and agent will exist between Licensee and CSI.  The Parties will remain at all times independent contractors.  In no event will either Party's staff or subcontractors be considered agents or employees of the other Party.
14. ASSIGNMENT. The license granted herein shall be and remain personal.  This EULA may not be assigned by Licensee without the written permission of CSI.
15. ENUREMENT.  This EULA shall enure to the benefit of and be binding on the heirs, successors, representatives and permitted assigns of the Parties.
16. GENERAL.-a) You and CSI have agreed that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.-b) No text or information set forth on any other communication, record or document shall add to or vary the terms and conditions of this Agreement and this Agreement, as revised from time to time pursuant to the section entitled "Modification to Terms", shall act as a master agreement and in all cases prevail unless stated otherwise in a written instrument executed by both you and CSI.-c) This Agreement shall for all purposes be deemed to be personal to you and therefore you may not assign this Agreement except with the express prior written consent of CSI, which may be unreasonably withheld.  This Agreement shall be assignable by CSI at its option.-d) This Agreement shall be binding upon and shall inure to the benefit of the Parties, their successors, legal representatives and permitted assigns.  -e) You agree to this Agreement being prepared in English and, if translated, such translation shall be only for ease of reference and the English version shall in all cases prevail. -f) Choix de langage: Les Parties ont convenu que cet accord soit dessine et execute en anglais. Sauf accord different par les Parties dans l'ecriture, tous les correspondance, documents et transmissions ulterieurs entre les Parties seront en anglais.  -g) If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. -h) No joint venture, partnership, employment, or agency relationship exists between you and CSI as a result of this agreement or use of the Software. -i) The failure of CSI to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by CSI in writing. -j) This Agreement, together with any attached schedules, documents, forms or exhibits accepted by the Parties at the time of entering into this Agreement, comprises the entire agreement between you and CSI and supersedes all prior or contemporaneous negotiations, correspondence, communications, discussions or agreements, whether written or oral, between the Parties regarding the subject matter contained herein.  In the event of any conflict between this Agreement and any such attachments, this Agreement shall prevail.
17. GOVERNMENT USERS.-U.S. GOVERNMENT END USERS. The Software is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein. Manufacturer is CSI.