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End User License Agreement

VIGOR SYSTEMS, INC. END USER LICENSE AGREEMENT IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY BEFORE CLICKING ON THE “ACCEPT” BUTTON BELOW.
1. THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU, EITHER AN INDIVIDUAL OR AS AN AGENT ACTING ON BEHALF OF A COMMERCIAL ENTITY (“YOU” OR “YOUR”) AND VIGOR SYSTEMS, INC. (“VIGOR”) THAT GOVERNS YOUR USE OF VIGOR SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY OF THE PROPRIETARY SOFTWARE PROGRAMS, ROUTINES, SUBROUTINES AND RELATED ITEMS FOR CONTROL OF PRODUCTS PURCHASED FROM VIGOR, HOSTED OR DOWNLOADED VIGOR SOFTWARE AND ANY ACCOMPANYING DOCUMENTATION (THE “SOFTWARE”). YOU OR THE PERSON AUTHORIZING YOUR USE OF THE SOFTWARE ENTERED INTO A WRITTEN AGREEMENT WITH VIGOR, AGREEING TO BE BOUND HEREBY (THE “UNDERLYING AGREEMENT”). YOU MUST ACCEPT THE TERMS OF THIS AGREEMENT BEFORE USING THE SOFTWARE. BY CLICKING “ACCEPT” AT THE END OF THIS AGREEMENT, OR BY DOWNLOADING, COPYING, OR OTHERWISE USING THE SOFTWARE, YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTOOD, AND THAT YOU ASSENT TO BE BOUND BY, THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT DO NOT ACCESS OR OTHERWISE USE THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT YOU ARE NOT GRANTED ANY RIGHTS WHATSOEVER IN THE SOFTWARE AND MUST PERMANENTLY DELETE ALL COPIES OF THE SOFTWARE IN YOUR POSSESSION. VIGOR MAY MAKE CHANGES TO THIS AGREEMENT AT ANY TIME, AND VIGOR WILL POST NOTICE OF THE CHANGES AND THE UPDATED TERMS AT WWW.VIGORSYSTEMSINC.COM. YOUR CONTINUED USE OF THE SOFTWARE AFTER SUCH CHANGES HAVE BEEN POSTED WILL SIGNIFY YOUR ASSENT TO AND ACCEPTANCE OF THE REVISED TERMS LICENSE GRANT. Subject to Your compliance with the terms and conditions contained in this Agreement, VIGOR hereby grants to You, during the Term, a non-transferable, non-exclusive, non-sublicenseable license to install and operate the Software in machine-readable executable object code on your primary computing device solely for Your internal business purposes.
2. RESTRICTIONS ON USE. You may not directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Software; (b) copy, translate, modify, create derivative works of, or otherwise use the Software or any part thereof; (c) distribute, sell, assign, pledge, sublicense, lease, loan, use for service bureau purposes, rent, or otherwise transfer the Software or any part thereof in any form; (d) use the Software for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of You; (e) remove from the Software, or alter, any of the trademarks, trade names, logos, patent or copyright notices or other proprietary notices or markings, or add any other notices or markings to the Software; (f) publish or disclose to third parties any evaluation of the Software without VIGOR’s prior written consent; (g) use the Software for any purpose other than its intended purpose; (h) interfere with or disrupt the integrity or performance of the Software; (i) introduce any open source software into the Software; or (f) use the Software to tamper with, spoof, or attempt to obtain unauthorized access to VIGOR’s servers or databases; or (e) permit any other party, directly or indirectly, to do any of the foregoing.
3. OWNERSHIP OF SOFTWARE. The Software is licensed, not sold, and You agree that the Software and all intellectual property and proprietary rights therein are owned by VIGOR or its licensors. VIGOR and its licensors reserve title and all right and interests in and to the Software, including without limitation all patent rights, copyrights, trademarks, trade names, trade secrets and other intellectual property and proprietary rights. There are no implied licenses under this Agreement, and all rights not expressly granted are reserved by VIGOR and its licensors.
4. CONFIDENTIALITY. You acknowledge VIGOR’S claim that the Software embodies valuable trade secrets proprietary to VIGOR. You shall use the Software only for purposes authorized herein. You shall safeguard the confidentiality of the Software, using at least reasonable care. Such care shall include, but not be limited to, taking reasonable precautions to ensure that (i) the Software is made available only to You, and (ii) You do not make unauthorized use, disclosure, or transfer of the Software. All Your information submitted to VIGOR or prepared for or in connection with the performance of this Agreement shall be held confidential by VIGOR and shall not, without the prior written consent of You, be disclosed or be used for any purposes other than the performance of this Agreement. VIGOR shall safeguard the confidentiality of such You information, using at least reasonable care.
5. NO WARRANTIES. THE SOFTWARE IS PROVIDED AND LICENSED TO YOU “AS IS”. YOU ASSUME THE ENTIRE RISK AS TO AND ACKNOWLEDGE THAT YOU RELY SOLELY AT YOUR OWN RISK ON RESULTS AND PERFORMANCE ARISING OUT OF THE USE OF THE SOFTWARE. SHOULD THE SOFTWARE PROVE TO HAVE DEFECTS IN ANY WAY, YOU ASSUME THE ENTIRE COST OF ALL DAMAGES SERVICING, REPAIR OR CORRECTIONS ARISING IN CONNECTION WITH OR AS A RESULT OF SUCH DEFECTS. VIGOR DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF INFORMATIONAL CONTENT, SYSTEM INTEGRATION, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE. WITHOUT LIMITING THE FOREGOING, VIGOR SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES THAT THE SOFTWARE, VIGOR’S EFFORTS, OR ANY SYSTEM WITH WHICH YOU WILL USE THE SOFTWARE WILL MEET YOUR REQUIREMENTS, FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME THE RESPONSIBILITY FOR THE SELECTION OF YOUR REQUIREMENTS, SOFTWARE, AND HARDWARE TO ACHIEVE YOUR INTENDED RESULTS. Some jurisdictions do not allow the disclaimer of implied warranties, so the above disclaimer may not apply to You, in which case the duration of any such implied warranties is limited to thirty (30) days from the date the Software is first used by You. In case of breach of such implied warranties, VIGOR’s sole and exclusive obligation and liability and Your sole and exclusive remedy will be, at VIGOR’s sole discretion, to (i) repair, correct, or work around any defect; (ii) provide a replacement copy of the Software; or (iii) terminate this Agreement and issue you a refund of any fees that you may have paid VIGOR for the Software (if any).
6. LIMITATION OF LIABILITY. VIGOR SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR INDIRECT DAMAGES OF ANY KIND (INCLUDING DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOST DATA, LOST PROFITS, OR THE LIKE) ARISING OUT OF YOUR USE OR INABILITY TO USE THE SOFTWARE (OR ANY INTELLECTUAL PROPERTY SUBSISTING THEREIN) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF VIGOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL VIGOR’S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, TO YOU OR TO ANY THIRD PARTY, EXCEED THE AMOUNT YOU PAID VIGOR FOR THE RIGHT TO USE THE SOFTWARE. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT SERVE TO ENLARGE THIS LIMITATION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. THIS LIMITATION OF LIABILITY WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY SET FORTH HEREIN. THE WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND VIGOR. VIGOR WOULD NOT PROVIDE THE SOFTWARE TO YOU ABSENT SUCH LIMITATIONS.
7. INDEMNIFICATION. You agree to indemnify and hold VIGOR harmless from and against all damages, liabilities, losses, costs and expenses arising from or relating to Your use or misuse of the Software or Your breach of this Agreement.
8. TERM AND TERMINATION. The term of the license granted by this Agreement automatically terminates upon termination of the Underlying Agreement (the “Term”). VIGOR may terminate this Agreement and without prior notice take appropriate technical measures to effect such termination in the following cases: (a) You fail to comply with the terms of this Agreement; (b) VIGOR deems in its sole discretion that Your use of the Software is abusive, or is in violation of VIGOR’s then-current acceptable use policy; (c) You distribute the Software without prior authorization by VIGOR; or (d) Your use of the Software gives rise to any legal action against VIGOR or its officers, directors, employees or agents. Upon termination of this Agreement, the license granted in Section 1 (License Grant) will terminate and You must immediately destroy all copies of the Software in Your possession or control. Sections 5, 6, 7, 8, 9, 12, and 13 of this Agreement will survive termination.
9. U.S. GOVERNMENT USE. The Software is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Consistent with 48 C.F.R. § 12.212 and 48 C.F.R. §§ 227.7202-1 through 227.7202-4, VIGOR provides the Software to U.S. Government end users only pursuant to the terms and conditions herein.
10. THIRD PARTY SOFTWARE. The Software may contain certain third party freeware, open source software, or Software licensed from third parties (“Third Party Software”). To the extent the terms and conditions for such Third Party Software grant You additional rights to use, reproduce or modify such software than the terms and conditions of this Agreement, such rights shall prevail over the terms and conditions of this Agreement for Third Party Software portions of the Software.
11. EXPORT CONTROL. You agree and acknowledge that the Software is subject to U.S. export control law, and You will comply with all applicable laws and regulations in Your use of the Software under this Agreement, including without limitation all export laws and regulations of the U.S. Department of Commerce and all other U.S. agencies and authorities, including the Export Administration Regulations promulgated by the Bureau of Industry and Security (as codified in 15 C.F.R. Parts §§ 730-774). Without limiting the foregoing, You expressly agree not to export or re-export the Software in violation of such laws or regulations, or without all required licenses and authorizations. Specifically, you agree not to download, export or re-export the Software (a) into, or to a national or resident of, any country to which the United States has embargoed goods, or (b) to anyone the United States Treasury Department’s list of Specially Designated Nationals of the U.S. Commerce Department’s Table of Deny Orders. By accessing and using the Software, You represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. You acknowledge that it is Your sole responsibility to comply with any and all governmental export and other applicable laws and that VIGOR has no further responsibility for such after VIGOR’s delivery of the License to You.
12. MISCELLANEOUS. Nothing contained herein will be construed to create any agency, employment, partnership, principal-agent relationship, or other form of joint enterprise between the parties. No waiver or modification of the Agreement will be valid unless signed by each party. The waiver of a breach of any term hereof will in no way be construed as a waiver of any other term or breach hereof. The headings in this Agreement do not affect its interpretation. You may not assign or transfer any of Your rights or obligations under this Agreement to a third party without the prior written consent of VIGOR. Any attempted assignment or transfer in violation of the foregoing will be void from the beginning. VIGOR may assign this Agreement without consent to any third party. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the remaining provisions of this Agreement will remain in full force and effect. Notices to VIGOR must be sent to the following address, and will be deemed effective three (3) days after certified mailing, return receipt requested: Vigor Systems, Inc., 4250 Executive Square, Suite 400, La Jolla, CA 92037; notices to You may be sent to the e-mail address that you furnished prior to downloading the Software, and will be deemed effective upon arrival at Your e-mail server. . This Agreement is the final, complete, and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous understandings and agreements relating to such subject matter, whether oral or written.
13. GOVERNING LAW AND VENUE. The laws of the State of California shall govern this Agreement without reference to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed and expressly excluded. The interpretation of any of the provisions hereof, or the action or inaction of any party hereunder shall be submitted to arbitration in San Diego, California pursuant to the commercial arbitration rules of JAMS or ADR Services, Inc. (collectively “Approved Service”), or other recognized arbitration service selected by the party instituting such action provided if any other party objects to the selection of a service other than an Approved Service, the arbitration shall be moved to an Approved Service selected by the party objecting. Any award or decision obtained from any such arbitration proceeding shall be final and binding on the parties, and judgment upon any award thus obtained may be entered in any court having jurisdiction thereof. No action at law or in equity based upon any claim arising out of or related to this Agreement shall be instituted in any court by any party except: (a) an action to compel arbitration pursuant to this Section, or (b) an action to enforce an award obtained in an arbitration proceeding in accordance with this Section. BY CLICKING ON THE “ACCEPT” BUTTON YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS.

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