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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. (“AquaFold”) (with each a “Party” and collectively the “Parties”) regarding the use of the Aqua Data Studio software product accompanying this Agreement, including without limitation associated documentation (“Aqua Data Studio” or “Software Product”).

By accepting this Agreement or by copying, installing, uploading, accessing 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, AquaFold hereby grants Customer a perpetual, non-transferable (except as set forth under the “TRANSFER TO A THIRD PARTY” section), limited, and non-exclusive license to use the Software Product, solely for Customer’s internal 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 Customer is an entity, Customer must purchase one license for each user of the Software Product. A single user may install the Software Product on as many as two computers at any given time. Access by persons other than authorized 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 executes the Open API by executing the JavaScript file from within the graphical user interface of the Software Product. The user is restricted from executing the Software Product’s Open APIs in any other manner. This restriction 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 initiate the execution of the API or a script that would execute the API. Shared execution of the Open API by a user other than an authorized user will constitute a material breach of this Agreement. The Licensed user may only execute 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 audit of all use of all versions of the Software Product in its computer systems and that it has properly licensed all usage in all versions of the Software Product.

2.3.2 LICENSE KEY REQUIRED - Installation and continuous use of the Software Product 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 internal 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) validating 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 computer 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 represents and warrants that neither Customer nor any of its employees or contractors have attempted 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 counterfeit 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 deliberate or negligent act or act of omission: (a) distribute or cause the distribution of the 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 addition to any other fees payable by Customer under this Agreement, a fee calculated based on the number of 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 directly from the AquaFold website on the day the Software Product is installed, for the sole purpose of user’s evaluation of the Software Product for a period of no more than 14 days. Customer may not have more than 5 employees or contractors evaluating the Software Product at any given time. Evaluation of the Software Product with installers acquired from other sources or downloaded on a day previous to the day of installation is prohibited. Evaluation of versions of the Software Product other than the latest version is prohibited. The Software Product contains a feature that will automatically disable it after the expiration of the evaluation period. Customer shall not disable, 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 evaluation 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 evaluation 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, provided that the total number of users who access or use the Software Product on such computer file server do not exceed 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 individual users. The license granted under the “GRANT OF LICENSE” section may only be transferred as expressly allowed in this Agreement and only with AquaFold’s written consent. Customer may permanently and wholly transfer all rights under this Agreement, provided Customer (a) retain no instances or copies (whole or partial) of the Software Product, (b) permanently and wholly transfer any and all copies of the Software Product (including all component 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 Software Product. Customer must be a Qualified Educational User to use the Software Product under this type of license, and use of the Software Product is limited to Academic/Educational Use. For purposes of this Agreement, “Academic/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 research. “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 Customer only some rights to use the Software Product. AquaFold reserves all other rights. Unless applicable law gives 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 the Software Product that only allow Customer to use the Software Product in certain ways. Except as explicitly authorized in this Agreement, Customer shall not itself, or through any parent, subsidiary, affiliate, agent or other third party:

  • modify, reverse engineer, decompile or disassemble the Software Product;
  • write or develop any derivative software or any other software program based upon the Software Product;
  • sell, lease, license or sublicense the Software Product;
  • interfere with, remove, disable, or modify any license key or license monitoring mechanism in or provided with the Software Product;
  • make more copies of the Software Product than specified in this Agreement;
  • 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
  • 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 archival 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 doubt, Software Product upgrades and updates shall only be used to replace all or part of previous versions or releases of the Software Product licensed to Customer. No additional licenses to the Software Product 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 Subscription to receive maintenance, support and version upgrade services, as set forth in this section, commencing on 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 Subscription 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 release 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, AquaFold shall provide Subscription Services as specified in this section.

3.3 SUBSCRIPTION SERVICES - Subscription Services means that AquaFold will provide: (a) updates and upgrades to the Software Product, if any, made publicly available by AquaFold to its customers during the term of the Subscription, 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 with respect to, the following, and any services requested as a result thereof will be billed to Customer at AquaFold’s then-current rates:

  • accident; unusual physical, electrical or electromagnetic stress; neglect; misuse; failure of electric power, air conditioning or humidity control;
  • improper installation or use of the Software Product by Customer that deviates from any operating procedures established by AquaFold in the applicable documentation;
  • modification, alteration or addition of the Software Product undertaken by persons other than AquaFold or AquaFold’s authorized representatives; or
  • 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:

  • 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;
  • Customer shall document and promptly report all errors or malfunctions of the Software Product to AquaFold;
  • 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 from AquaFold;
  • Customer shall maintain a current backup of the Software Product and all related data;
  • Customer shall properly train its personnel in the use and application of the Software Product;
  • Customer shall designate a single point of contact for Subscription Services; and
  • 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 subscription 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) guidance in the operation of the Software Product; and (d) error verification, analysis and correction of verifiable 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 functionality 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 Product. Such customization shall be outside of the Software Product Support activities set forth in this section. For such customization support shall be limited to general guidance. Customer is solely responsible 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 regarding inquiries concerning functionality, operation or performance of the Software Product and customization made by Customer, (b) direct response to users with respect to problems or issues with the Software Product, (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 technical 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 the 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” section. 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 Customer 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 been 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 the initial or subsequent subscription periods, Customer will not be eligible to receive Software Product updates, upgrades or support services.

3.8.2 - Customer will be able to purchase additional licenses of the Software Product after the expiration of the subscription. Purchasing additional licenses of the Software Product will be limited 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 Subscription, Customer will have the ability to reassign licenses of the Software Product as set forth in the “LICENSE RESTRICTIONS” 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 renewed.

4 RIGHT TO AUDIT

4.1 - At AquaFold’s written request, but not more frequently than annually, during the term of this Agreement and for a period of one year thereafter, Customer shall furnish AquaFold with a report signed by Customer’s authorized representative verifying that the Software Product is being used pursuant to the provisions of this Agreement and the applicable purchase orders. The report shall include the number of users of the Software Product. Customer is responsible for implementing reasonable means to monitor its compliance with the terms of this Agreement.

4.2 - AquaFold reserves the right to audit Customer’s use of the Software Product, no more than once annually, during the term of this Agreement and for a period of one year thereafter at AquaFold’s expense. Customer shall permit AquaFold or its agents access to Customer’s computer systems and physical facilities for such audit. AquaFold shall schedule such audit with at least thirty (30) days advanced notice to Customer. Audit shall be conducted during normal business hours at Customer’s facilities and shall not unreasonably interfere with Customer’s business activities.

4.3 - If such audit reveals that Customer’s use of the Software Product exceeds 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 immediately due and payable, including, at AquaFold’s option, interest in the amount of 1% per month calculated from the date of the first un-permitted use.

4.4 - If any violation of this Agreement is revealed in the result of such audit, in addition to all payments and fees set forth in this section, Customer shall reimburse AquaFold the cost of the audit.

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 terminate 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 operations, assigns its assets for the benefit of creditors, becomes bankrupt, or otherwise seeks to dispose of all or substantially 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 liability 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 materials and any copies of the Software Product. AquaFold reserves all rights not expressly granted herein.

6.1 - ALTERATION OF TRADEMARK. Customer may not remove, modify or alter any AquaFold copyright or trademark notice from any part of the Software Product, including but not limited to any such notices contained in the physical and/or electronic media or documentation, in any of the runtime resources and/or in any web-presence or web-enabled notices, code or other embodiments originally contained 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 otherwise published by AquaFold), and (b) any Subscription services provided by AquaFold shall be in compliance with the written Subscription description provided to Customer by AquaFold.

7.2 - AquaFold has performed generally recognized anti-virus scanning on the Software Product, and the version of the Software Product delivered to Customer is, as determined according to such scanning, free of viruses or malicious code.

7.3 - In the event of any breach of warranty or other duty owed by AquaFold, AquaFold’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 the defective Software Product. Any replacement or repaired Software Product will be warranted for either the remainder 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) the 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 pay 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 secret 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 Software Product as described in this Agreement; or (b) modify or replace the Software Product so that there is no further infringement, provided that such modification or replacement will not substantially decrease the functionality of the Software Product. In the event neither (a) nor (b) are reasonably possible, AquaFold 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 allowing AquaFold sole control of the defense, assistance with such defense at AquaFold’s expense and timely written notice of the Claim.

8.4 - In the event that a legal judgment declares that Software Product infringes on a patent of Customer, then Customer hereby grants to AquaFold a perpetual, worldwide, non-exclusive, no-charge, 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 licensable by Customer that are necessarily infringed by the Software Product. If Customer institutes patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Software Product constitutes direct or contributory patent infringement, Customer shall defend, or settle any and all claims, demands, or lawsuits brought against AquaFold by Customer, and pay 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 patent by the provision or use of the Software Product.

8.5 - AquaFold’s indemnification obligations above do not apply: (1) if the total aggregate fees received by AquaFold with respect to your license to Software or subscription in the 12 month period immediately preceding the claim is less than US$50,000; (2) if the Product is modified by any party other than AquaFold, but solely to the extent the alleged infringement is caused by such modification; (3) if the Product is used in combination with any non-AquaFold product, software or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Products; (5) to any Claim arising as a result Customer’s data or any third-party deliverables or components contained with the Products; (6) to any unsupported release of the Software; or (7) if you settle or make any admissions with respect to a claim without AquaFold’s prior written consent. This section states our sole liability and Customer’s exclusive remedy for any infringement of intellectual property rights in connection with any product or other items provided by AquaFold under this Agreement.

9 FEES AND PAYMENT

The Software Product license fees and then-current annual Subscription fees (collectively, “Fees”) will be due and payable in full to AquaFold no later than 30 days after the date of AquaFold’s invoice. Payment must be accompanied by the Contract Reference Number indicated on the invoice, and be addressed and sent to the billing contact and address indicated on the invoice. Any Fee amounts not paid within 30 days will be subject to interest charges of 1% of the overdue amount per month, or the highest rate allowable under law, whichever is less. The Fees paid by Customer exclude all applicable use and other taxes and all applicable export and import costs, customs duties and similar charges. Fees are expressed in US Dollars, and are non-refundable.

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 RELIED 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, IMPLIED 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 SOFTWARE PRODUCT OR SUBSCRIPTION SERVICES), OR (B) DELAYS OR BUSINESS INTERRUPTIONS ARISING 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, SUPPLIERS, 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 actions or proceedings arising in connection with this User Agreement shall be tried and litigated exclusively in the State and Federal courts located in the County of Travis, State of Texas, United States of America. The aforementioned choice of venue is intended by the Parties to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between the Parties with respect 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 or to object to venue with respect to any proceeding brought in accordance with this paragraph, and stipulates that the State and Federal courts located in the County of Travis, State of Texas, United States of America shall have personal jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy, or proceeding arising out of or related to this Agreement. Each Party hereby authorizes and accepts 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 the giving of notices as set forth in this Agreement. Any final judgment rendered against a Party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law.

13.2 - COMPLIANCE WITH LAWS. This Agreement is expressly made subject to any laws, 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 obtain any required non-U.S. governmental authorizations, including without limitation any import licenses and foreign exchange permits, and, if applicable, shall file or register this Agreement with the appropriate authorities.

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 impaired or invalidated in any way and the invalid or unenforceable provision shall be enforced to the full extent 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 or delegate its duties under this Agreement without the written consent of the other Party, which shall not be unreasonably withheld, except that each Party may assign its rights hereunder in connection with a merger, 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 to 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 downloaded 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 export 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 be resolved against AquaFold shall not apply in interpreting this Agreement. The language in this Agreement shall 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 telecommunication 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 Party. Both Parties will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 90 days, either Party may cancel unperformed services upon written notice. This section 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 attached hereto set forth the entire understanding and Agreement of the Parties, and supersedes any and all oral or written agreements or understandings between the Parties, as to the subject matter of this Agreement. 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 acknowledged and agreed to by the Parties in writing.