SOFTWARE END-USER LICENSE AGREEMENT

THIS AGREEMENT is dated and effective as of the date of the Licensee’s first use of the Software.

This License Agreement is between Derivicom Incorporated ("Derivicom") and the Licensee identified below.

1. Introduction

This Derivicom End-User License Agreement ("EULA") is a legal AGREEMENT between you and Derivicom Incorporated for the Derivicom software product identified above, which product includes computer software and may include associated media, printed materials, and "online" or electronic documentation ("SOFTWARE PRODUCT"). By installing, copying, or otherwise using the SOFTWARE PRODUCT, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, then DO NOT install or use the SOFTWARE PRODUCT, the original purchaser may, however, return it to the place of purchase within thirty days of the date of original purchase for a full refund.

2. License

Copyright laws and international copyright treaties, as well as other intellectual property laws and treaties protect the SOFTWARE PRODUCT. The SOFTWARE PRODUCT is licensed, not sold.

2.1 GRANT OF LICENSE. This EULA grants you, the registered computer software developer, the following rights:

(i) Applications Software. Only you may use the SOFTWARE PRODUCT.  You may install and use one copy of the SOFTWARE PRODUCT, or any prior version thereof for the same operating system, on a single computer.  In return for our license grant, you hereby irrevocably grant to Derivicom Incorporated, and its affiliates, the non-exclusive, worldwide, fully-paid right to publicly disclose the fact that you are using the SOFTWARE PRODUCT, for Derivicom Incorporated’s advertising and other promotional purposes.

(ii) STORAGE/NETWORK USE. You may also store or install a copy of the SOFTWARE PRODUCT on a storage device, such as a network server, used only to install or run the SOFTWARE PRODUCT on your other computers over an internal network; however, you must acquire and dedicate a distinct license for each End-User using the SOFTWARE PRODUCT from the storage device. Any given license for the SOFTWARE PRODUCT may not be shared or used concurrently or otherwise on different computers or by different End-Users in a given organization.

(iii) License Pack. If you have acquired this EULA in a Derivicom License Pack, you may make the number of additional copies of the computer software portion of the SOFTWARE PRODUCT identified above on this EULA, and you may use each copy in the manner specified above.

2.2 DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
(i) Academic Edition Software.  If the SOFTWARE PRODUCT is identified as "Academic Edition" or "Educational Copy" or "AE," you must be a "Qualified Educational User" to use the SOFTWARE PRODUCT. If you are not a Qualified Educational User, you have no rights under this EULA. To determine whether you are a Qualified Educational User, please contact Derivicom Information Center: Derivicom Incorporated, 431 Clinton Ave., Oak Park, IL 60302, USA, (or e-mail to: sales@derivicom.com).

(ii) Limitations on Reverse Engineering, Decompilation, and Disassembly. You may not modify, reverse engineer, decompile, or disassemble the SOFTWARE PRODUCT.  The SOFTWARE PRODUCT is licensed as a single product. Its component parts may not be separated for use on more than one computer.

(iii) Not for Resale Software. If the SOFTWARE PRODUCT is labeled "Not for Resale" or "NFR" or "Evaluation Copy", then, notwithstanding other sections of this EULA, you may not use the SOFTWARE PRODUCT for commercial purposes nor sell, or otherwise transfer it for value.  Commercial purposes include the use of the SOFTWARE PRODUCT in the creation of publicly distributed computer software.

(iv) Not for Rental. You may not rent, lease, or lend the SOFTWARE PRODUCT to any party.

(v) Software Transfer. You may permanently transfer all of your rights under this EULA, provided you (a) retain no copies, (b) transfer all of the SOFTWARE PRODUCT (including all component parts, the media and printed materials, any upgrades, this EULA, and, if applicable, the Certificate of Authenticity), and (c) the recipient agrees to abide by all of the terms of this EULA. If the SOFTWARE PRODUCT is an upgrade, any transfer must include all prior versions of the SOFTWARE PRODUCT and all of your rights therein, if any.

3. DUAL-MEDIA SOFTWARE

3.1 You may receive the SOFTWARE PRODUCT in more than one medium. Regardless of the type or size of the medium you receive, you may use only that one medium that is appropriate for your single computer. You may not use or install the other medium on another computer, including but not limited to portable computers under the exclusive control of the registered developer.  You may not loan, rent, lease, or otherwise transfer the other medium to another user, except as part of the permanent transfer (as provided above) of the SOFTWARE PRODUCT.

4. Warranties by Derivicom

4.1 Subject to sections 3.2, 3.3, 3.4 and 4.1, Derivicom represents and warrants to Licensee as follows:
(i) Derivicom has the authority to enter into this Agreement and to grant the licenses as provided for herein, and to perform each and every covenant and agreement herein contained; and
(ii) that, if properly installed and used by Licensee, the Software shall operate and function for a period of ninety (90) days from the date of shipment in substantial conformity with the Software's most currently published operational specifications.

4.2 The representations and warranties in subsection 3.1(ii) shall not apply unless:
(i) Derivicom is, within the applicable warranty period, notified in writing of Licensee’s discovery of any suspected defects in the Software;
(ii) Upon written authorization from Derivicom to do so, transportation charges prepaid, Licensee immediately returns the alleged defective Software by courier express, and with the return authorization number provided by Derivicom clearly displayed; and

(iii) Derivicom's test procedures disclose that such Software does not substantially meet the Software's specifications for reasons that are not due, in any part and to any extent, or in connection with, either any act or omission of Licensee, or any telecommunications system, technology, network, information system, equipment hardware or software used by the Licensee.
4.3 In no event shall Derivicom be liable or responsible for any defects due, in whole or in part, to any physical damage suffered to Software or any media containing the Software that results from the improper handling during or after shipment, misuse, use with computer hardware or equipment that is, in any way, not compatible for use with the Software, neglect, improper installation or operation, repair, alteration, accident or for any other cause not directly and solely attributable to the Software. Derivicom's liability for direct harm under this section 3 shall be strictly limited, at Derivicom's option, to either the repair or the replacement of the substantially defective Software at its own expense, or to reimburse Licensee the License Fee paid by Licensee to Derivicom for the Software. Any such Software replaced or repaired hereunder shall carry only the unexpired term of the warranty applicable to the replaced or repaired Software.

4.4 EXCEPT FOR THE EXPRESS LIMITED WARRANTY STATED ABOVE, DERIVICOM MAKES NO REPRESENTATION, COVENANT, CONDITION OR WARRANTY, EXPRESSED OR IMPLIED, WITH RESPECT TO THE SOFTWARE AND SPECIFICALLY EXCLUDES ALL EXPRESS AND IMPLIED PROMISES, STATEMENTS, CONDITIONS AND WARRANTIES, INCLUDING ANY AND ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SOLE OBLIGATION AND LIABILITY OF DERIVICOM CONTAINED IN THE LIMITED WARRANTY STATED ABOVE IS IN LIEU OF ALL OTHER OBLIGATIONS OR LIABILITIES OF DERIVICOM TO LICENSEE WHATSOEVER AND HOWSOEVER ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE, THE SOFTWARE'S USE, OR OTHERWISE, WHETHER FOR LOSS OF PROFITS, BUSINESS REVENUES OR OTHERWISE. THE PROVISIONS OF ANY STATUTE OR REGULATION CONCERNING THE SALE OF SOFTWARE, CONSUMER PROTECTION, OR UNFAIR TRADE PRACTICES IN ANY JURISDICTION, SHALL NOT APPLY TO THIS AGREEMENT TO THE EXTENT THAT SUCH EXCLUSION IS PERMITTED BY ANY SUCH JURISDICTION'S LAWS.

5. Limitation of Liability

5.1 The Licensee agrees and acknowledges as follows:
(i) UNDER NO CIRCUMSTANCES WILL DERIVICOM BE LIABLE TO LICENSEE FOR ANY INDIRECT, THIRD PARTY, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY EXPENSES, COSTS, LIABILITY, LOSS, OR DAMAGE WHATSOEVER IN ANY CONNECTION WITH THIS AGREEMENT;
(ii) Except as set out in section 3.3 herein, Derivicom's liability to Licensee for any and all direct harm, liability, expense, cost, loss or damage, whether in negligence, tort, equity, contract or otherwise, arising out of, or in connection with, this Agreement shall be strictly limited, in the aggregate in respect of all incidents and occurrences, to the amount of the License Fee that Licensee has actually paid to use the Software;

(iii) that Derivicom shall not be liable for any lost profits, lost business revenue, failure to realize expected savings or any other commercial or economic loss of any kind whatsoever;
(iv) that Derivicom shall not be liable for any harm, loss, damages, expenses, costs, suit, claim or demand whatsoever against Licensee that is made by any person who is not a party to this Agreement;
(v) that neither Derivicom, nor any of its representatives, employees, officers, directors, agents, distributors, affiliated corporations or any other person, shall be responsible for nor shall incur, any liability, damages, loss, obligations or responsibility whatsoever (whether in equity, contract, tort or otherwise) for any harm, loss, reliance, or damages, whatsoever, that may arise in any connection with or result from any promise, advice, arrangement, agreement, statement, Software support or maintenance, representation, warranty, or information whatsoever, that may have been made to Licensee by Derivicom or any other person concerning any aspect of the Software, and which has not been expressly included in this Agreement;

(vi) that it shall not export the Software from the designated jurisdiction of use unless otherwise agreed to by Derivicom, and that any such export or re-export of Software shall be in strict compliance with all applicable United States export control laws and regulations in effect; and
(vii) that the limitations of liability set out in this Agreement are fair and reasonable in the commercial circumstances and that such limitations have been, in part, an inducement to Derivicom for the amount of license fees set out herein, and that Derivicom would not have entered into this Agreement but for such liability limitations.

6. Confidentiality

6.1 All information concerning the Software and/or Derivicom is hereby deemed to be the proprietary and confidential information of Derivicom, ("Confidential Information"). All Confidential Information shall be held in trust by Licensee strictly for, and on behalf of, Derivicom, and Licensee shall have a fiduciary obligation to prevent Confidential Information from any misappropriation, unauthorized used, unauthorized disclosure, unauthorized access, harm, theft, manipulation, tampering, unauthorized copying, unauthorized electronic transmission or other communication, and sabotage of any kind whatsoever.

7. Termination

7.1 Basis for Termination by Derivicom. Derivicom shall have the right to terminate Licensee’s rights to use the Software without any further obligation or liability to Licensee if Licensee either commits any breach of this Agreement whatsoever or infringes Derivicom's intellectual property rights to the Software. Upon any termination of such license rights, Derivicom shall have the right to require Licensee to immediately destroy all documentation relating to the Software and all media containing any of the Software.

8. U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND

8.1 The Licensed Software and Documentation have been developed exclusively at private expense, and are provided with RESTRICTED RIGHTS.  Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Licensed Software clause at DFARS 252.227-7013.  DERIVICOM is the Contractor, and is located at 431 Clinton Ave, Oak Park, IL 60302, (708)848-2660.

9. General

9.1 The waiver, amendment or modification of any provision of this Agreement or any right, power or remedy hereunder shall not be effective unless made in writing and signed by the party against whom enforcement of such waiver, amendment or modification is sought. The terms of this Agreement shall not be amended or changed by the terms of any purchase order or acknowledgment even though Derivicom may have accepted or signed such documents. No failure or delay by either party in exercising any right, power or remedy with respect to any of its rights hereunder shall operate as a waiver thereof. This Agreement constitutes the entire agreement between the parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties, and there are no warranties, statements representations and/or agreements between the parties in connection with the subject matter hereof except as specifically set forth or referred to herein. The validity, construction and performance of this Agreement and the legal relations among the parties of this Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Illinois, with the exception of its conflict of law provisions.  The parties consent to the personal jurisdiction of the State of Illinois and agree that any legal proceedings arising out of this Agreement shall be conducted solely in such State.  Licensee hereby attorns to, and submits to, the non-exclusive jurisdiction of the Courts of the County of Cook in the State of Illinois, but nothing herein shall limit or restrict Derivicom's ability to commence legal proceedings, suits or actions against Licensee in any other jurisdiction whatsoever. The following sections of this Agreement shall survive any termination of this Agreement: 2.1, 2.2, 3.1, 4.2, 4.3, 4.4, 5.1, 6.1, and this 9.1. Headings contained in this Agreement are for convenience of reference only and shall not affect the interpretation or meaning of this Agreement. Any notice or communication given pursuant to this Agreement shall be in writing and delivered to the other party via courier or by electronic facsimile (by either telecopier or non-audio on-line computer telecommunications system such as "electronic mail", electronic data interchange, or through the Internet) during ordinary business hours in Illinois, United States.