Permabit Technology Corporation

END USER LICENSE AGREEMENT

This End User License Agreement (this “Agreement”) is by and between Permabit Technology Corporation, located at One Alewife Center, Suite 410, Cambridge, MA 02140 (“Permabit”) and you (“Licensee”), and is effective as of the date you click “Accept” (the “Effective Date”).  BY CHECKING THE BOX INDICATING YOU HAVE READ AND AGREED TO THIS AGREEMENT, YOU FULLY ACCEPT AND AGREE TO ALL OF THE PROVISIONS OF THIS AGREEMENT.  IF YOU DO NOT AGREE TO THE THESE PROVISIONS, DO NOT CHECK THIS BOX.  CHECKING THIS BOX AND ACCESSING THE PERMABIT SOFTWARE ESTABLISHES A BINDING AGREEMENT BETWEEN YOU AND PERMABIT.  ACCEPTANCE OF THIS AGREEMENT IS REQUIRED AS A CONDITION TO ACCESSING AND USING THE PERMABIT SOFTWARE.

Background: This Agreement contemplates the licensing of Permabit’s software application SSE (together with any updates, modifications or other releases that may be provided by Permabit hereunder, the “Permabit Software”) solely for non-production, internal evaluation and testing purposes (the “Testing Purpose”).  Permabit is willing to provide a copy of such Permabit Software to Licensee solely for the Testing Purpose on the terms and conditions set forth in this Agreement.

  1. License: For the duration of this Agreement, Permabit hereby grants, and the Licensee hereby accepts, a non-exclusive, non-transferable license, without the right to sublicense, to use the Permabit Software (as defined below) solely for the Testing Purpose, subject to the terms and conditions of this Agreement (the “License”).
  2. Restrictions: The Permabit Software is provided in object code only and shall be deployed on Licensee’s own internal computer networks solely for the Testing Purpose. Licensee shall not copy the Permabit Software and/or related documentation or remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels on, or embedded in, the Permabit Software and/or related documentation. Licensee shall not transfer, lease, distribute, assign, license, sell or otherwise commercially exploit the Permabit Software or make the Permabit Software available to a third party.
  3. Duration: This Agreement will continue until terminated as set forth herein. This Agreement will terminate immediately, without prior notice from Permabit, if Licensee fails to comply with any provision of this Agreement. Either party may also terminate this Agreement upon written notice to the other party.  Upon termination, Licensee must destroy all copies of the Permabit Software and all materials provided for or with the Permabit Software.  Sections 3, 4, 5, 6, 8, 10, 11 and 12 will survive any expiration or termination of this Agreement.
  4. Title: Permabit retains all proprietary rights, title and interest in and to the Permabit Software and any modifications thereof.  No ownership of any part of the Permabit Software is hereby transferred to Licensee.  Licensee shall not, directly or indirectly, modify, reverse engineer, decompile, or disassemble the Permabit Software or otherwise or attempt to derive the source code of the Permabit Software.
  5. Disclaimer of Warranties: Licensee expressly acknowledges that the Permabit Software may have defects or deficiencies which cannot or may not be corrected by Permabit.  THE PERMABIT SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND. PERMABIT DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS RELATING TO THE PERMABIT SOFTWARE WHETHER EXPRESS, IMPLIED, OR ARISING BY CUSTOM OR TRADE USAGE, INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATION, WARRANTY, OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. Permabit takes no responsibility for the effects on Licensee’s software, hardware, network or related equipment of the installation or operation of the Permabit Software.
  6. Limitation of Liability: PERMABIT AND LICENSEE AGREE THAT PERMABIT WOULD NOT PROVIDE THE PERMABIT SOFTWARE WITHOUT INCLUSION OF THIS SECTION 6. IN NO EVENT WILL PERMABIT BE LIABLE FOR ANY DAMAGES INCLUDING WITHOUT LIMITATION ANY DIRECT DAMAGES, LOST REVENUE, PROFIT, DATA, OR OTHER SOFTWARE OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY (INCLUDING NEGLIGENCE) ARISING OUT OF THE USE OR INABILITY TO USE THE PERMABIT SOFTWARE, EVEN IF PERMABIT KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. Licensee understands that Licensee is exclusively responsible for the supervision, management and control of Licensee’s use of the Permabit Software. Permabit does not warrant that use of the Permabit Software will be uninterrupted or error free, or that program errors will be corrected.
  7. Evaluation Support: Licensee may report to Permabit errors, bugs and other defects or problems (“Errors”) experienced with the Permabit Software and Permabit may, but is not obligated to, take reasonable steps to attempt to correct such Errors or to propose and institute a reasonable work around for such Errors. Permabit is under no obligation to support the Permabit Software in any way or provide Licensee with any update or error corrections.  Licensee agrees that any and all results of using and evaluating the Permabit Software and related documentation, including any feedback or suggestions Licensee provides to Permabit, and all ideas, concepts, know-how and techniques contained in or derived from such results, feedback and/or suggestions (collectively, “Results”) will be owned by Permabit without restriction or payment to Licensee.  Licensee hereby assigns and will assign to Permabit all right, title and title in and to the Results.
  8. No Further Commitment: Nothing in this Agreement, including without limitation the provision of the License, implies that Licensee has any rights to any commercially issued software produced by Permabit, including, without limitation, to a commercial release of the Permabit Software. In the event that Licensee and Permabit are able to reach an agreement on the terms and conditions of a license for the Permabit Software or any other commercially issued software, such license will be subject to the terms and conditions of that agreement.
  9. Related Software. Licensee is responsible for providing any commercially available software, equipment or services that are required to operate the Permabit Software.
  10. Taxes: Licensee agrees to pay any sales, use or other tax (excluding tax on Permabit’s net income) or other fee or charge of any kind or nature that is levied or imposed by any governmental authority on Licensee’s License of the Permabit Software.
  11. Confidentiality; Security: The Permabit Software, related documentation and Results (collectively, “Confidential Information”) constitute Permabit’s proprietary and confidential information. Licensee will not (i) use any such Confidential Information in any way, for its own account or the account of any third party, except for the exercise of its rights and performance of its obligations under this Agreement, or (ii) disclose any such Confidential Information to any party, other than furnishing such Confidential Information to its employees who are required to have access to the Confidential Information in connection with the exercise of its rights and performance of its obligations under this Agreement. Licensee will not allow any unauthorized person access to the Confidential Information, and Licensee will take all action reasonably necessary to protect the confidentiality of such Confidential Information, including implementing and enforcing procedures to minimize the possibility of unauthorized use or copying of such Confidential Information.

In the event that Licensee is required by law to make any disclosure of any of Permabit’s Confidential Information, by subpoena, judicial or administrative order or otherwise, Licensee shall first give written notice of such requirement to Permabit, and shall permit Permabit to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to Permabit in seeking to obtain such protection.  Because the unauthorized access, use, transfer or dissemination of any Confidential Information may diminish substantially the value of such materials and may irreparably harm Permabit, if Licensee breaches the provisions of this Section 11, Permabit will, without limiting its other rights or remedies, be entitled to equitable relief, including but not limited to injunctive relief, without the necessity of posting any bond.

  1. Miscellaneous: This Agreement, the License granted hereunder, the Permabit Software and/or related documentation and any modifications thereto may not be assigned or in any way transferred without the prior written consent of Permabit. The terms of this Agreement shall be construed in accordance with the substantive laws of the Commonwealth of Massachusetts, United States of America, without giving effect to the principles of conflict or choice of law of such Commonwealth.  The parties hereto waive any statute, law, or regulation that might provide an alternative law or forum.  Permabit and Licensee exclude the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act from this Agreement.  If any provision of this Agreement is held to be excessively broad as to scope, activity, subject or otherwise so as to be unenforceable at law, such provision shall be constructed by limiting or reducing it so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear.  This Agreement represents the entire understanding between the parties with respect to its subject matter and supersedes all prior written and oral communications.  A waiver by either party of its rights hereunder shall not be binding unless contained in a written agreement signed by an authorized representative of the party waiving its rights.  The non-enforcement or waiver of any provision on one occasion shall not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing.
  2. Export Control: Licensee acknowledges that the Permabit Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such laws and regulations.
  3. Restricted Rights: The Permabit Software constitute “commercial items” as that term is defined at 48 C.F.R. 2.101 (October 1995) consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (Sept 1995) and are provided to the U.S. Government only as a commercial end item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 (June 1995), all U.S. Government End Users acquire the Permabit Software and its associated documentation with only those rights set forth therein.