SafePeak TECHNOLOGIES LTD. - SOFTWARE END USER LICENSE AGREEMENT
THIS SOFTWARE END USER LICENSE AGREEMENT ("EULA") IS AN AGREEMENT BETWEEN THE PARTY INSTALLING THE SOFTWARE ("LICENSEE") AND SafePeak TECHNOLOGIES LTD. ("SafePeak") WHICH SETS FORTH THE TERMS OF THE LICENSE GRANTED BY SafePeak TO LICENSEE AS TO THE SAFEPEAK SOFTWARE FOR IMPROVEMENT OF SQL SERVER PERFORMANCE (THE "SOFTWARE"). THIS EULA PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. READ IT CAREFULLY BEFORE USING THE SOFTWARE. BY SELECTING THE "I AGREE / I ACCEPT" BUTTON AND INSTALLING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THIS LICENSE TO USE THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT INSTALL OR USE THE SOFTWARE
The term Software, as used herein, shall include any enhancements, translations, modifications, updates, releases, versions, third party programs or components, and\or other changes to such software programs, the Documentation, sample files, extension files, or other tools and utilities which are provided under this EULA. The term "Documentation" shall mean the user manual and additional written materials (including online documentation) provided with the Software.  The Software is owned by and remains the property of SafePeak or its third party licensors, is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold, solely to Licensee, for the Permitted Use (as defined herein) and only on the terms and conditions set forth below.
1.	LICENSE
1.1.	Grant of License. Subject to the terms herein and payment of the applicable License Fee, SafePeak grants Licensee a perpetual, non-exclusive, non-transferable license to use the current object code version of the Software solely for the Permitted Use, according to the instructions in the Documentation, and in strict compliance with this EULA. 
1.2.	License Fee. SafePeak may freely establish the license fee for the Software (the "License Fee"), change it from time to time at its sole discretion and/or establish different pricing plans for organizations and business entities acquiring more then one License.
1.3.	Permitted Use. The Software may only be used for improving and accelerating data access and retrieval processes from MS-SQL Server databases. Without limiting the forgoing the Licensee may not:
1.3.1.	Use the Software for third-party training, commercial time-sharing, or rental bureau use;
1.3.2.	Create a derivative work of the Software;
1.3.3.	Use the Software for general application development purposes.
1.3.4.	Use Third Party Components as a separate, stand-alone product.
The term "Third Party Components" shall mean components of the Software, whether in the form of a runtime version or object code, provided by third party vendors to SafePeak for inclusion as an embedded component of the Software object code or utilities.
1.4.	Number of Copies. 
1.4.1.	The Licensee may install and use only one copy of the Software on a single hard disk or other storage device of one computer, including a workstation, terminal or other digital electronic device (a "Computer").
1.4.2.	A single installation of the Software may serve only up to the number of database instances and/or database server CPU cores as outlined in the purchase order and subject to payment of the applicable License Fee in accordance with the price list established by SafePeak
1.4.3.	Licensee may physically transfer the Software from one Computer to another Computer; provided that such transfer relates to a transfer within the computer network of the Licensee, and does not grant any third party whatsoever with access to the Software. 
1.4.4.	Licensee may make one backup copy of the Software, solely for archival and disaster recovery purposes, provided such backup copy is not installed or used on any Computer. 
1.4.5.	Licensee may not make any additional copies of the Documentation without SafePeak's consent.
1.5.	Modification. Only SafePeak is allowed to alter, maintain, enhance or otherwise modify the Software. 
1.6.	Reverse Engineering. Licensee shall not cause, nor permit either through its direct efforts or through any third party, the disassembly, de-compilation, or reverse engineering of the Software. Licensee shall not attempt to create or permit others to attempt to create, by reverse compiling or disassembling or otherwise, any part of the source code of the Software from the object code or from other information made available to Licensee. The Licensee further undertakes not to develop, or assist others in the development of, software with similar functionality or capabilities. The restrictions on Licensee provided in this section 1.6 shall be interpreted to the maximum extent permitted according to the applicable law. 
1.7.	Material Terms and Conditions. Licensee specifically agrees and acknowledges that each of the terms and conditions of this Section 1 are material and that failure of Licensee to comply with these terms and conditions shall constitute sufficient cause for SafePeak to immediately terminate this EULA. The presence of this Section 1.7 shall not be relevant in determining the materiality of any other provision or breach of this EULA by either party.
2.	TITLE TO SOFTWARE AND PROPRIETY RIGHTS
2.1.	Ownership of Licensed Software. The Software and all copies thereof are proprietary to SafePeak and title thereto remains with SafePeak. All applicable rights to patents, copyrights, trademarks, trade secrets, moral rights and any other intellectual property right in and to the Software or any modifications or derivative works belong to and shall remain in SafePeak.  Licensee acknowledges that the license granted under this EULA does not provide Licensee with title to or ownership of the Software, including any enhancements, updates or other modifications to the Software, whether made by SafePeak or any third party. Licensee further acknowledges that the license granted under this EULA provides the Licensee only with a right of limited use under the terms and conditions of this EULA.
2.2.	Transfer to Third Party. The Licensee shall not sell, license, sublicense, publish, display, distribute, or otherwise transfer to any third party the Software, any copy thereof, in whole or in part.
2.3.	Supplemental Software Code. Any supplemental software code provided to the Licensee (including any and all improvements, modifications and enhancements whether or not such improvements, modifications and enhancements were made according to Licensee's request, feedback or recommendations or provided pursuant to a Maintenance Agreement (as defined below)) shall be considered part of the Software and subject to the terms and conditions of this EULA.  SafePeak may use the technical information provided by the Licensee for product support and development. Licensee acknowledges that any development of the Software or the Documentation (including all applicable rights to patents, copyrights, trade secrets, moral rights and any other intellectual property right) based on suggestions, requests of technical information provided by the Licensee will remain the property of SafePeak, and Licensee shall have no right or claim to such development other than to use such development as a Licensee subject to the terms of this EULA.
2.4.	No Encumbrances. Licensee shall keep the Software free and clear of all liens and encumbrances.
2.5.	Copyright Notices. Any copies that the Licensee is permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear on or in the Software. 
2.6.	Material Terms and Conditions. Licensee specifically agrees that each of the terms and conditions of this Section 2 are material and that failure of Licensee to comply with these terms and conditions shall constitute sufficient cause for SafePeak to immediately terminate this EULA and the license granted under this EULA. The presence of this Section 2.6 shall not be relevant in determining the materiality of any other provision or breach of this EULA by either party. 
3.	USE AND PROTECTION OF THE SOFTWARE
3.1.	Performance. Licensee acknowledges that in order to achieve best results using the Software, the Software must be used solely for the Permitted Use and according to the instructions in the Documentation. Any attempt to use the Software for other or additional uses not included in the Permitted Uses will be a breach of this EULA and may also result in poor performance. 
3.2.	Minimum Requirements. System requirements detailing the minimum software and hardware requirements for the proper installation and use of the Software are contained in the Documentation. Licensee warrants and represents that it has met the minimum software and hardware requirements.
3.3.	Registration Code. The number of permitted copies installed may be protected by requiring the Licensee to register his license to the Software according to the registration number obtained from SafePeak. The Software may not be functional until the Licensee has actually registered the Software as instructed by SafePeak.
3.4.	Support services. SafePeak may provide support services to the Licensee (the "Support Services"). Use of Support Services shall be governed by SafePeak's standard Support and Maintenance Agreement (the "Maintenance Agreement") or by SafePeak policies and programs offered to SafePeak's clients from time to time in SafePeak-provided materials.
4.	LIMITED WARRANTY AND DISCLAIMER
4.1.	Limited Warranty. SafePeak warrants that the Software will perform substantially in accordance with the Documentation for 90 days from installation (the "Warranty Period"). The Warranty Period for modifications, updates, supplemental software code, and new releases of the Software shall be 90 days from delivery of the Software to the Licensee. SafePeak makes no warranty as to the Software after the end of Warranty Period (the "Limited Warranty").
4.2.	Non-Compatibility. SafePeak does not warrant that the Software will meet Licensee's requirements or will operate in combinations with other software or non-supported platforms/operating systems which may be selected for use by the Licensee, or that the operation of the Software will be uninterrupted or error-free.
4.3.	Licensee's Representation. Licensee represents and confirms that it has examined the Software and has found the Software to be suitable for its purposes, and hereby irrevocably waives any claim of any defect or malfunction related to: 
4.3.1.	Limited functionality of the Software;
4.3.2.	Non compatibility with Licensee's software or hardware systems;
4.3.3.	Fitness to any of Licensee's needs, operational requirements or particular use; and 
4.3.4.	Documentation provided by the SafePeak.
4.4.	Warranty Claim. To make a warranty claim the Licensee must notify SafePeak in writing, within the Warranty Period, of its claim of any defect or malfunction and attach a copy of the sales receipt. If SafePeak finds the Software to be defective, SafePeak's sole obligation under this warranty is, at SafePeak's sole discretion, to (i) use reasonable commercial efforts to attempt to correct or work around errors` (ii) replace defective media` (iii) replace the Software with functionally equivalent Software; or (iv) to terminate this EULA and refund the license fees as the Licensee's sole remedy. 
4.5.	No Performance Warranty. SafePeak AND ITS THIRD PARTY LICENSORS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS ANY USER MAY OBTAIN BY USING THE SOFTWARE OR THE DOCUMENTATION.
4.6.	Disclaimer. 
4.6.1.	THE ABOVE IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY SafePeak. SafePeak MAKES, AND LICENSEE RECEIVES, NO WARRANTY, EXPRESS OR IMPLIED, AND THERE ARE EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AS TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE FULLEST EXTENT BY APPLICABLE LAW. 
4.6.2.	SafePeak SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO COST OF COVER, LOSS OF REVENUE OR PROFIT OR COMMERCIAL LOSS OR LOSS OF DATA, OR DAMAGE TO OTHER SOFTWARE OR OTHER COMPUTERS OR COMPUTER MALFUNCTION OR DOWNTIME, IRRESPECTIVE OF THE THEORY UPON WHICH ANY CLAIM MAY BE BASED, EVEN IF SafePeak HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 
4.6.3.	THE STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF SafePeak FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE, OR PERFORMANCE OF THE SOFTWARE SYSTEMS.
4.7.	No Warranty in Case of Misuse. THE FOREGOING WARRANTY DOES NOT EXTEND TO ANY DAMAGE AS A RESULT OF ACCIDENT, MISUSE, ABUSE, OF THE SOFTWARE OR AS A RESULT OF SERVICE OR MODIFICATION MADE TO THE SOFTWARE BY ANYONE OTHER THAN SafePeak.
4.8.	Disclaimer of Further Warranty. 
4.8.1.	EXCEPT AS SET FORTH IN SECTION 4, THE SOFTWARE IS PROVIDED "AS IS". 
4.8.2.	EXCEPT FOR THE EXPRESS LIMITED WARRANTY STATED ABOVE, SafePeak MAKES NO PROMISES, REPRESENTATION OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE.
4.8.3.	LICENSEE ACKNOWLEDGES THAT SafePeak'S THIRD PARTY COMPONENT LICENSORS MAKE NO WARRANTIES TO THE LICENSEE UNDER THIS EULA.
4.9.	Third Party Modifications. Should Licensee, or any third party hired by Licensee and not contracted by SafePeak, perform services for Licensee using the Software, or create modifications or derivative works of the Software, SafePeak shall have no liability to Licensee for said services, modifications, derivative works, or outputs of use of the Software, and the Limited Warranty under this Section 4 shall immediately be terminated. Correction for difficulties malfunctions or defects traceable to Licensee's or to third party errors or system changes shall, if SafePeak agrees to correct such malfunctions, be billed at SafePeak's then-current standard consulting services rates.
4.10.	Conditions to Warranty. The Limited Warranty is contingent upon:
4.10.1.	The Software being installed, implemented and operated in accordance with all the instructions in the Documentation; 
4.10.2.	Licensee properly installing all updates made available with respect to the Software, and updates recommend by SafePeak with respect to Third Party Components or third party software (including operating system and database software) that materially affect performance of the Software; 
4.10.3.	Licensee properly maintaining all associate equipment, software and environmental conditions in accordance with applicable specifications and industry standards; 
4.10.4.	Licensee not introducing other equipment or software creating an adverse impact on the Software; and 
4.10.5.	Licensee paying the License Fees to SafePeak. It is clarified that the Warranty shall not apply to pilot project until the full License Fees are paid to SafePeak.
4.11.	High Risk Activities. The Software is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the software could lead directly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). SafePeak and its suppliers and its resellers specifically disclaim any express or implied warranty of fitness for High Risk Activities.
4.12.	Maintenance Agreement.  The parties acknowledge and agree that a Maintenance Agreement, if entered into by the parties, will provide to Licensee additional services and warranties relating to the Software in consideration of the maintenance and support fees payable thereunder.  To the extent that the provisions of Sections 4 and 5 of this EULA conflict with the provisions of the Maintenance Agreement applying to the parties, the provisions of the Maintenance Agreement will prevail.
5.	LIMITATION OF LIABILITY
5.1.	Limitation of Liability. LICENSEE AGREES THAT SafePeak'S LIABILITY HEREUNDER FOR DAMAGES ARISING FROM PERFORMANCE OR NONPERFORMANCE OF THE SOFTWARE (WHETHER ARISING OUT OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT, WARRANTY OR ANY OTHER LEGAL OR EQUITABLE THEORY) SHALL BE AS SET FORTH ABOVE IN SECTION 4, and SHALL IN NO EVENT EXCEED THE LICENSE FEES PAID BY LICENSEEFOR THE SPECIFIC LICENSE THAT IS THE SUBJECT OF THE CLAIM. 
5.2.	Exclusion from Liability. SafePeak will not be liable for any lost profits, costs of procurement of substitute goods or services, or for any claim or demand by any other party, and in any event the limitation detailed in section 5.1 shall apply. 
5.3.	THE REMEDIES SET FORTH IN SECTIONS 4 AND 5 HEREIN ARE EXCLUSIVE.  
6.	THIRD PARTY DATA
6.1.	The Software enables Licensee to process data, copyrights of which may be owned by third parties. It is clarified that in no event shall SafePeak be liable for any infringing copy uploaded, processed or stored by use of the Software. Licensee hereby undertakes to obtain all the required intellectual property licenses so that all data processed, stored or transmitted by the Software will be permitted by the owners of such data.
7.	TERMINATION
7.1.	Term. This EULA and the license granted hereunder shall commence upon receipt by the Licensee of this EULA and payment of the License Fee and shall continue until terminated by either party in accordance with the provisions contained herein.
7.2.	Termination by SafePeak. In addition, to SafePeak's termination rights pursuant to the provisions of Sections 1.7 and 2.6 above, SafePeak shall have the right to terminate this EULA and the license granted herein upon the occurrence of any of the following events: 
7.2.1.	In the event the Licensee fails to comply with any of the terms and conditions of this EULA and such default has not been cured within thirty (30) days after receiving written notice; 
7.2.2.	In the event the Licensee (i) terminates or suspends its business; (ii) becomes insolvent or generally fails to pay, or admits in writing its inability to pay its debts as they become due; (iii) becomes subject to any bankruptcy or insolvency proceeding, or to direct control by a trustee, receiver or liquidator; or (iv) has wound up or liquidated, voluntarily or otherwise. 
7.3.	Immediate Termination. Without prejudice to any other rights or remedies available hereunder or under any applicable law or treaty, THE LICENSE SHALL BE AUTOMATICALLY TERMINATED IF THE LICENSEE TRANSFERS POSSESSION OF ANY COPY, MODIFICATION, OR MODULE OF THE SOFTWARE TO ANY OTHER PARTY OTHER THAN AS SPECIFICALLY PERMITTED HEREUNDER OR IF THE LICENSEE MAKES ANY USE OF THE SOFTWARE DIFFERENT FROM THE PERMITTED USE DEFINED IN THIS EULA AND IN EXHIBIT A HERETO.
7.4.	Actions Following Termination. Within seven (7) days after termination of this Agreement, for whatever reason, Licensee shall return to SafePeak the Software and the Documentation in the form provided by SafePeak or as modified by the Licensee, and deliver to SafePeak a certification, in writing signed by an officer of Licensee, that the Software and all copies thereof have been returned or destroyed, as requested by SafePeak, and their use discontinued.
7.5.	Termination for IP Violations. Section 7.4 notwithstanding, in the event SafePeak exercises it right to terminate this EULA pursuant to Sections 1.7 and 2.6 above, SafePeak shall have the right to take immediate possession of the Software and the Documentation and all copies wherever located, and the Licensee hereby irrevocably agrees not to object to the entrance of SafePeak's agents to the Licensee's premises for the purpose of taking possession of all copies of the Software and the Documentation, and not to interfere with such action.
8.	MISCELLANEOUS 
8.1.	Export Limitations. Without derogating from the limitations on transfer contained herein, Licensee shall not ship, transfer or export into any country, or use, the Software in any manner prohibited by any applicable export laws, restrictions or regulations.
8.2.	Use of Licensee's Name. Licensee hereby grants SafePeak a perpetual worldwide license to use Licensee's name and logo in connection with advertisement of the Software and proposals to prospective clients, in any media or form and mention it as a client of SafePeak. 
8.3.	Entire Agreement; Amendment and Waiver.  
8.3.1.	This EULA constitutes the full and entire understanding and agreement between the parties with regard to the subject matters hereof.
8.3.2.	This EULA supersedes all prior courses of dealings, proposals and negotiations between SafePeak and Licensee and no representations, communications, negotiations or statements not expressed herein shall be binding upon SafePeak.
8.3.3.	Any term of this EULA may be amended and the observance of any term hereof may be waived (either prospectively or retroactively and either generally or in a particular instance) only with the written consent of the parties to this EULA.
8.4.	Delays or Omissions. No delay or omission to exercise any right, power, or remedy accruing to SafePeak upon any breach or default under this EULA shall be deemed a waiver of any other breach or default theretofore or thereafter occurring. 
8.5.	Severability. If any provision of this EULA is held by a court of competent jurisdiction to be unenforceable under applicable law, then such provision shall be excluded from this EULA and the remainder of this Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms; provided, however, that in such event this EULA shall be interpreted so as to give effect, to the greatest extent consistent with and permitted by applicable law, to the meaning and intention of the excluded provision as determined by such court of competent jurisdiction.
8.6.	Successors and Assigns; Assignment. The terms and provisions of this EULA shall be binding upon and inure to the benefit of the parties to this EULA and to their respective heirs, successors, assigns and legal representatives, except that Licensee shall not assign, sub-license or otherwise transfer the Software or any rights, duties or obligations under this EULA to any person or entity except as expressly permitted hereunder.
8.7.	Governing Law. This EULA shall be construed in accordance with and governed for all purposes by the substantive laws of the state of Israel without regard to principles of conflicts of law. 
8.8.	Jurisdiction. The courts of Tel Aviv, Israel, shall have the sole and exclusive jurisdiction over any dispute between the parties hereto. Licensee hereby submits irrevocably to the jurisdiction of such venue.