Article 1 - Definitions

a) "Agreement" means this Temerity Software License Agreement;

b) "Temerity" means Temerity Software, Inc;

c) "Customer" means the end user of the Software that acquires the License pursuant to this Agreement as identified on the Order;

d) "Delivery" means delivery of the media upon which the Software is provided to a carrier by Temerity, its supplier representative agent or fulfillment services provider for carriage to Customer, or, where the Software is to be delivered via download, at such time when the Software is made available to Customer for download;

e) "License" shall have the meaning ascribed thereto in Article 2(a);

f) "Materials" means any and all documentation and/or material provided to Customer by Temerity or Reseller in relation to the Software;

g) "License Key" means the confidential data file named "temerity-software.key" generated by the Customer using the Software during configuration of the Software for compatibility with the file system, network and other specifications of the Original Site;

h) "Order" means either: (i) the purchase order of Customer relating to the acquisition of one or more Licenses, which has been accepted by Temerity or by a Reseller in Temerity's or Reseller's sole discretion, as applicable; or (ii) a quotation that has been issued by Temerity or a Reseller in respect of one or more Licenses, which has been accepted by Customer in accordance with and subject to its terms;

i) "Original Site" means the Customer site identified on the Order;

k) "Reseller" means an authorized reseller of Temerity, which has been authorized to distribute Software;

l) "Software" means the Temerity software product(s), in object code, Java byte-code or other binary form, described on the Order and provided to Customer pursuant to this Agreement and shall include any and all updates or upgrades thereto subsequently acquired by or provided to Customer;

m) "Third Party Material" means any software and/or documentation and/or material provided to Customer with the Software or in relation thereto, which has been produced and/or licensed by a third party and subsequently provided and/or made available and/or licensed to Temerity by such third party for inclusion with the Software; and

n) "Warranty Period" means the period commencing upon Delivery and ending upon the ninetieth (90th) day after Delivery.

a) License Grant. Temerity has granted to Customer and Customer has accepted, a non-exclusive, non-transferable, non-sublicensable, limited license to use the Software, subject to the terms and conditions of this Agreement (the "License").

e) Installation Location. Use of the License shall be limited to one local area network at the Original Site. Relocation of the Software may only be done with the express prior written consent of Temerity.

f) Licenses Non-Transferable. Licenses shall not be transferred without the prior written consent of Temerity, which may be granted or withheld in Temerity's sole and absolute discretion. If such transfer is authorized, Customer agrees to provide any and all information reasonably requested by Temerity relating to such transfer and Customer shall promptly execute and/or have executed by the proposed transferee any and all documentation provided by Temerity required to effect such transfer.

g) Back Up Installations. In the event of a major malfunction causing the specified computer hardware on which the Software has been installed to become inoperable for an extended period of time, Customer may install the Software on a back-up system on a temporary basis during such malfunction. Customer agrees to promptly notify Temerity of any such back-up use and specify the location of the back up system.

h) Internal Use Only. Customer may use the Software only in connection with operation and management of Customer's own internal business, subject to the terms hereof. Customer is not authorized to grant sublicenses to use the Software nor to permit other persons to use the Software on a time-sharing or any other basis.

i) Customer Responsibilities. Customer shall be exclusively responsible for the supervision, management and control of its use of the Software, including, but not limited to: (i) selection of the Software to achieve Customer's intended results; (ii) determining the appropriate use and establishing the limitations of the Software in Customer's operations; (iii) assuring operation of the Software by qualified, trained personnel, in the specified computer environment, including proper machine hardware configuration and operating system software; (iv) assuring proper operating methods; (v) establishing adequate back-up plans to prevent loss of data in the event of a malfunction of the Software; and (vi) implementing sufficient procedures and checkpoints to satisfy its requirements for security and to assure accuracy of input and output.

j) License Termination on Non-Payment. Temerity reserves the right to terminate the License upon written notice if Customer fails to pay either Reseller or Temerity for the License pursuant to the terms of the Order.

Article 3 - Protection of Proprietary Material

a) Ownership. Temerity and/or its suppliers and/or its licensors retain all right, title, and interest in and to all Proprietary Material (including, without limitation, all rights under any applicable copyrights, patents, trademarks and trade secrets) and to all copies thereof made by Customer.

b) Reverse Engineering. Customer shall not reverse compile, reverse engineer or disassemble the Software, except to the extent that Temerity is not permitted by law to exclude or limit such rights. Customer shall not use the Software for the purpose of developing, modifying or improving a software product without the express prior written consent of Temerity.  Any attempt to reverse compile, reverse engineer or disassemble the Software will be considered to be a fraudulent act by the Customer.

c) Proprietary Material Confidential. Customer acknowledges that the Proprietary Material is confidential and constitutes a valuable asset of Temerity and/or its suppliers and/or licensors and shall not disclose, publish, display or otherwise make available to any persons any of the Proprietary Material or copies thereof without Temerity's prior written consent.

d) Limitation on Reproduction. Customer shall not copy or reproduce any of the Proprietary Material, except: (i) in the ordinary course of exercising its rights hereunder; (ii) for back up purposes; or (iii) with the express prior written consent of Temerity.

e) Limitation of Access, Disclosure and Use. Customer shall not use any Proprietary Material for any purpose not specifically authorized in this Agreement. Customer shall limit the use of and access to the Software and other Proprietary Material to its bona fide employees and/or consultants whose use of or access to such Proprietary Material is necessary to Customer's use of the Software (in accordance with the terms hereof) and Customer shall take appropriate action, by agreement, instruction or otherwise, to protect the Proprietary Material from unauthorized publication, disclosure, or use.

f) Notices. Customer shall not remove any copyright, intellectual property or proprietary rights notice(s) included in or on any Proprietary Material and shall reproduce all such notices on any permitted copies made of any Proprietary Material.

g) Inspection. Temerity shall have the right to inspect, upon reasonable prior notice and during normal business hours, any Customer location at which any Proprietary Material is used or kept to ensure or confirm compliance with the terms of this Agreement.

h) Irreparable Harm. Customer acknowledges and agrees that in the event of any breach of its obligations under this Article, Temerity will suffer irreparable harm of a nature that is not compensable by damages otherwise available and Temerity shall be entitled to seek injunctive or other equitable relief on an expedited basis.

Article 4 - Warranty and Liability

a) Limited Warranty. During the Warranty Period and subject to the provisions of this Article, Temerity warrants as follows: (i) the media upon which the Software is provided to Customer, if any, shall be free of material defect; and (ii) the Software shall reasonably conform to the specifications contained in the Software documentation furnished to Customer.

b) Remedies. Temerity's sole responsibility under the limited warranty provided for in Article 4(a) shall be, at its election, to: (i) replace the media upon which the Software has been provided to Customer, provided that Customer first returns the allegedly defective media to Temerity; (ii) correct or replace the Software or that portion of the Software that fails to conform with the provided specification; or (iii) refund the purchase price paid by Customer for the License.

c) Disqualifying Events. Customer acknowledges and agrees that the limited warranty provided in Article 4(a) shall be invalidated, and Customer shall have no claim whatsoever thereunder, if: (i) Customer fails to report in writing to Temerity any defect or error claimed to be a breach of warranty during the Warranty Period; (ii) the Software or the media upon which the Software is provided is misused; (iii) the Software or the media upon which the Software is provided is damaged, altered or affected by accident, neglect, misuse or other abuse; (iv) the claimed defect or error has been caused, in whole or in part, by persons other than Temerity; or (v) if the Software has been installed on a system that has not been certified by Temerity as compatible with the Software at the time of acceptance of the Order.

d) THE LIMITED WARRANTY SET FORTH IN THIS ARTICLE 4 IS THE ONLY WARRANTY MADE BY TEMERITY WITH RESPECT TO THE SOFTWARE AND/OR THE LICENSE. TEMERITY MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

e) IN NO EVENT SHALL TEMERITY'S AND/OR TEMERITY'S AFFILIATES' TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SOFTWARE AND/OR THE LICENSES EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE LICENSES HEREUNDER. IN NO EVENT SHALL TEMERITY BE LIABLE TO CUSTOMER FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY CLAIMS RELATING TO LOST PROFITS, BUSINESS OR OPPORTUNITIES, EVEN IF TEMERITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF SUCH DAMAGES WERE FORESEEABLE.

Article 5 - Term and Termination

a) Term. This Agreement takes effect on the date on which the Order is received and accepted by Temerity or a Reseller and shall remain in effect unless terminated as provided herein. Notwithstanding the foregoing, in the event that the Software is provided to Customer for evaluation and/or demonstration purposes this Agreement shall be effective from the date such Software is provided to Customer until the date of termination of such evaluation or demonstration, as determined by Temerity in its sole and absolute discretion.

b) Termination. If Customer shall fail to perform or be in breach of any of its obligations hereunder, Temerity may terminate this Agreement and the License provided hereunder, by giving written notice of termination to Customer, which shall be effective immediately upon its sending. This Agreement and the License granted hereunder shall terminate automatically and without notice if Customer should cease to carry on its business as a going concern in the ordinary course, including any act or omission constituting bankruptcy, the appointment of a trustee, liquidator or receiver for the assets of Customer, or the taking advantage of any legislation providing protection of Customer from its creditors.

c) Consequences of Termination. Within five (5) days after any termination of this Agreement, Customer shall, at Temerity's election, deliver or destroy all Proprietary Material, including all copies thereof, within its possession, custody or control. Customer shall delete or destroy any and all such Proprietary Material that is stored in any computer software or storage facility that, for any reason, cannot be delivered to Temerity. Customer expressly represents and warrants that it shall delete or destroy any and all such information and data that is subsequently detected or discovered. An executive officer of Customer shall certify in writing to Temerity that all Proprietary Material has been so destroyed or returned. Articles 1, 3, 4, 5(c) and 6 hereof shall survive any termination of this Agreement.

Article 6 - General Provisions

a) Entire Agreement, Severance. This Agreement sets forth the entire agreement and understanding of the parties with respect to the subject matter hereof. Neither party shall be bound by or be liable for any alleged representation, promise, inducement or statement of intention not set forth herein and no waiver, alteration, modification, or cancellation of any of the provisions of this Agreement shall be binding unless made in writing and signed by the parties. Any provisions of the Order that are in any way inconsistent with or in addition to the terms and conditions of this Agreement shall not be binding upon Temerity and Temerity's failure to object to any such provision or processing or acceptance of such Order shall not be construed as a waiver of the terms and conditions of this Agreement nor as an acceptance of any such provisions. The failure of either party to require performance of any provision hereof shall not affect the right at a later time to enforce such provision. In the event that one or more of the provisions contained in this Agreement shall for any reason be held invalid, illegal or unenforceable in any respect, no other provisions contained in the Agreement shall be affected.

b) Evaluation or Demonstration Licenses. In the event that the Software is provided to Customer for evaluation and/or demonstration purposes Articles 2(b), 2(c),  2(d), 4(a), 4(b) and 4(c) shall not apply. All Software provided for evaluation and/or demonstration purposes is provided "as is" and without warranties, support or consulting services of any kind.

d) Headings. Article headings used in this Agreement are for reference purposes only and shall not be used in the interpretation of this Agreement.

f) Ennurement. This Agreement shall be binding upon and ennure to the benefit of the parties and their respective successors, permitted assigns and legal representatives, provided, however that the rights and obligations of Customer hereunder may not be assigned, sublicensed or otherwise transferred, in whole or in part, without the prior written consent of Temerity, which may be granted or withheld by Temerity in its sole and absolute discretion.