Software License Agreement

(XLeratorDB windowing)

IMPORTANT – READ CAREFULLY:  PLEASE READ THIS CONTRACT CAREFULLY BEFORE INSTALLING OR USING THE LICENSED PRODUCT (AS DEFINED BELOW). BY INSTALLING OR USING THE LICENSED PRODUCT, YOU INDICATE THAT YOU ACCEPT, AND AGREE TO ABIDE BY, ALL TERMS AND CONDITIONS OF THIS AGREEMENT. If you do not agree to the terms and conditions of this Agreement, you may not use the LICENSED PRODUCT.

1.      Definitions

1.1              “Agreement” means this Software License Agreement.

1.2              “Licensed Product” means the Software and Related Materials.

1.3              “Licensee” or “You” means the Person for whom payment of the applicable license fees has been made to Licensor.

1.4              “Licensor” means WestClinTech, LLC.

1.5              “Person(s)” means any individual, corporation, partnership, limited liability company, joint venture, association, company, estate, trust, association, organization, labor union or other entity, governmental body (including any branch of the military) or political subdivision.

1.6              “Software” means the XLeratorDB/windowing software for which Licensee has paid the applicable license fees. “Software” shall include all updates delivered by Licensor to Licensee from time to time, if any.

1.7              “Registered SQL Server” means a Windows server, whether physical or virtual, that is running Microsoft SQL Server software that has been assigned a server name (the name of the server as it appears on a network) that matches the server name Licensee identified to Licensor.

1.8       “Related Materials” shall mean those user manuals, instructions or documentation, if any, which may be provided by Licensor to Licensee for use in conjunction with the Software, whether accompanying the Software or delivered separately, and whether provided in hard-copy or made available electronically.

2.      License

2.1              License Grant. Subject to the observance by Licensee of all of the terms and conditions of this Agreement, Licensor hereby grants to Licensee, a limited, non-exclusive, non-sublicenseable, non-transferable license to (a) install the Software solely on, and execute the Software solely in connection with, (i) for the basic license option, the Registered SQL Servers Licensee specified to Licensor at the time of purchase of a licensed copy of the Software, or (ii) for the Extended License Option, the maximum number of servers Licensee has expressly paid for and only on a Registered SQL Server (notwithstanding the three day notice period described in section 2.2 below), and (b) use and reproduce the Related Materials for the purpose of and in connection with the installation and use of the Software as provided in this Section 2.1. Additionally, during the term of this Agreement, Licensee may create and maintain a reasonable number of copies of the Licensed Product solely for (i) backup and archival purposes, and (ii) for purposes of un-installing the Licensed Product from one machine and re-installing on another. All rights not expressly granted to Licensee are reserved.

2.2              Extended License Option - Maximum Servers. For the avoidance of doubt, with the Extended License Option, the Software may only be installed on and used in connection with the maximum number of servers Licensee has expressly paid for. The Software incorporates technological measures designed to make the Software inoperable if Licensor detects that the Software is installed on a greater number of servers than expressly paid for. If Licensee would like to increase the number of servers (whether virtual or physical) using the Software, Licensee must secure from Licensor additional licenses and identify to Licensor the server name(s) of the Registered SQL Server(s) within three (3) days of installation.

2.3              Extended License Option – Complementary Upgrades/Other Benefits. With the Extended License Option, Licensee will receive complementary upgrades of the Licensed Product, and other benefits Licensor may choose to provide in Licensor’s discretion.

2.4              Notice Regarding Required Microsoft Software. The Software will operate only in combination with Microsoft^® SQL Server^® software. Licensee must purchase a license from Microsoft or its authorized reseller for the Microsoft SQL Server software. Use of Microsoft SQL Server software is subject to Microsoft’s license agreement and any other applicable Microsoft terms and conditions. Licensor makes no promises, representations or warranties regarding the Microsoft SQL Server software.

3.      Licensor’s Proprietary Rights

3.1              Licensor Property. This Agreement does not provide Licensee with title to or ownership of the Licensed Product, but only a right of limited use. The Licensed Product is, and shall remain, the property of Licensor. Licensee agrees that it shall comply with all limitations on its use of the Licensed Product set forth herein. Licensor may, without notice and at any time during reasonable business hours, either on its own or through its duly authorized representative, conduct an audit of the use by Licensee of the Licensed Product to ensure that Licensee is in compliance with the terms of this Agreement. Licensee acknowledges that, as between Licensor and Licensee: (i) all right, title and interest in and to the Licensed Product (and all copies thereof), the source code for the Software (and all copies thereof) and all work product resulting from services provided to Licensee in connection therewith, including all associated patents, copyrights, trademarks, trade names, trade secrets, know-how and other intellectual property rights related thereto, and any and all alterations, adaptations, translations, modifications, improvements and changes to the Licensed Product and derivative works based thereon, whether created by Licensor or Licensee or their respective agents (the “Licensor Property”), are, and shall at all times remain, the exclusive property of Licensor; and (ii) Licensee shall have no right or interest as to any Licensor Property, except as expressly set forth in this Agreement.

3.2              Limited Duplication. The Licensed Product may not be copied or duplicated except as expressly permitted by this Agreement. Licensee shall reproduce and include all copyright or other proprietary rights notices from the then current version of such Software and Related Materials on any copy, in whole or in part, of any Software and Related Materials. The original and all copies of the Licensed Product, in whole or in part, which are made or used by or in the possession of Licensee are and shall remain the property of Licensor.

3.3              No Alteration. Licensee shall not alter, adapt, translate, modify or change the Licensed Product or create derivative works based on the Licensed Product.  Further, Licensee shall not remove, disable, manipulate or otherwise adversely affect any means or device intended to prevent unauthorized use or reproduction of any Software.

3.4              Trade Secrets. Licensee acknowledges that the Licensor Property is the valuable property of Licensor and embodies substantial creative efforts, confidential information, ideas and expressions and contains valuable trade secrets of Licensor. Aspects of the Software that are Licensor’s trade secrets include, without limitation, the specific design and structure of the individual programs and their interaction, and the unique programming techniques employed therein for certain tasks. Licensee shall maintain all aspects of the Licensor Property (including expressly and without limitation, the Software, Related Materials, the source code for the Software and any of Licensor’s trade secrets) in any form, in strict confidence. Licensee shall not (a) decompile, reverse engineer or disassemble the Software or otherwise attempt to reconstruct or discover any source code or any of Licensor’s trade secrets, except as permitted by law; (b) disclose, disseminate, grant access to, copy, reproduce, deliver, transmit, publish, display, sublicense, lease, rent, lend, assign or otherwise transfer any Licensor Property (including expressly and without limitation, the Software, Related Materials, the source code for the Software and any of Licensor’s trade secrets), or any portion thereof or any derivation thereof, via any medium whatsoever, by operation of law or otherwise to any third party, directly or indirectly, including, but without limitation, to any joint venture or business combination arrangement with any other Person or entity, without Licensor’s prior written consent; or (c) alter, hide or remove from any part of the Software or Related Materials any proprietary rights or copyright notices or identification that indicate Licensor’s ownership interest therein. Licensee shall take any and all other actions, including legal action, necessary or desirable to ensure continued confidentiality and protection of the Licensor Property (including expressly and without limitation, the Software, Related Materials, the source code for the Software and any of Licensor’s trade secrets) and to prevent access thereto or use thereof by any person or entity not authorized hereby. Licensee shall ensure that its employees comply with the provisions of Section 3. If Licensee becomes aware of any unauthorized disclosure or use of any Licensor Property (including expressly and without limitation, the Software, Related Materials, the source code for the Software and any of Licensor’s trade secrets), Licensee shall immediately notify Licensor and shall advise Licensor of the full particulars thereof in writing. Licensee shall be responsible to Licensor for any use of the Licensed Product by Licensee’s employees and any third party gaining access to the Licensed Product through Licensee.

3.5              Irreparable Harm. Licensee acknowledges and agrees that, in the event of a breach of this Section 3, Licensor would be irreparably harmed and could not be made whole by monetary damages. Accordingly, Licensee agrees that in the event of such breach or threatened breach, (i) Licensor shall, in addition to all other rights or remedies it may have, be entitled to obtain equitable relief, including, but not limited to, temporary restraining orders or injunctions with respect to the use of the Software and Related Materials, and (ii) Licensee shall not to assert by way of defense or otherwise that a remedy at law would be adequate.

4.      Term; Termination

This Agreement is effective beginning on the date Licensee first installs the Software and shall continue unless terminated in accordance with this Section 4.  Without prejudice to any other rights Licensor may have, Licensor may terminate this Agreement (and the license set forth herein) upon notice to Licensee, effective immediately, if Licensee fails to comply with any of the terms and conditions of this Agreement and does not remedy such failure within ten (10) days of receipt of written notice from Licensor identifying such failure. In any termination event, Licensee must (a) cease using the Software and Related Materials, (b) destroy all copies of the Software and Related Materials in its possession or control and (c) upon request, cause an authorized representative of Licensee to certify such destruction to Licensor. The terms of Section 3, Section 5, Section 6 and Section 7 shall survive any termination of this Agreement, as well as such other provisions as, by their intent or meaning, are intended to so survive.

5.      Disclaimer of Warranty

Prior to purchasing this license, Licensee had the opportunity to use and evaluate the Software on a trial basis, without charge. ACCORDINGLY, THE SOFTWARE AND RELATED MATERIALS ARE PROVIDED “AS IS”, WITHOUT WARRANTY. LICENSOR MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING OR RELATING TO THE SOFTWARE, OR RELATED MATERIALS OR TO ANY SERVICES OR OTHER MATERIAL FURNISHED OR PROVIDED TO LICENSEE PURSUANT TO THIS AGREEMENT OR OTHERWISE. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTY ARISING UNDER STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE, WITH RESPECT TO SAID MATERIALS AND THE USE THEREOF.  FURTHER, LICENSOR DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF, OR THE RESULT OF THE USE OF, THE SOFTWARE AND RELATED MATERIALS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE AND THE LICENSEE RELIES ON THE SOFTWARE AND RESULTS SOLELY AT ITS OWN RISK.  it is licensee’s responsibility to validate any calculations performed using the software.  Licensor does not warrant that the Software will operate uninterrupted or error free or that all Software errors, defects or inefficiencies will be corrected, nor does Licensor assume any liability for failure to correct any such error, defect or inefficiency. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE, PERFORMANCE OF THE SOFTWARE OR COMBINATION WITH OTHER SOFTWARE, WHETHER MADE BY LICENSOR EMPLOYEES OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY LICENSOR FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF LICENSOR WHATSOEVER. Licensor shall have no obligation to provide to Licensee any updates or upgrades to the Licensed Product.

6.      Limitation of Liability

IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO DAMAGES CAUSED BY RELIANCE ON CALCULATIONS MADE WITH THE SOFTWARE, LOST PROFITS, LOSS OF DATA, LOSS OF USE OF THE SOFTWARE, LOSS OF GOODWILL, OR COMPUTER FAILURE OR MALFUNCTION, WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER OR NOT BROUGHT AS A CLAIM IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE. IN ADDITION, WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL LICENSOR’S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT EXCEED THE ACTUAL AMOUNT OF THE LICENSE FEES PAID BY LICENSEE FOR THE SOFTWARE.

Licensee acknowledges and agrees that there are features included in the Software that may be used by Licensor to restrict Licensee’s use of such Software to the scope of this Agreement and that Licensor has the right to restrict Licensee’s use as described. Licensor shall have no liability to Licensee for exercise of such capability and right.

7.      Indemnification.

Licensee agrees to defend, indemnify and hold harmless Licensor from any loss, cost (including reasonable attorneys fees), expense, damage or liability resulting from any breach of this Agreement by Licensee.  Licensor agrees to notify you promptly of any claim or suit brought to its attention for which indemnification may be sought hereunder.

8.      Government Customers

T he Software and Related Materials are provided with RESTRICTED RIGHTS. Use, reproduction or disclosure by any agency of the U.S. Government is subject to restrictions set forth in subparagraphs (a)(14) and (b)(3) of the Rights in Noncommercial Computer Software clause at DFARS, 48 C.F.R. 252.227-7014, or in subparagraphs (c)(1) and (c)(2) of the Commercial Computer Software - Restricted Rights clause at FAR, 48 C.F.R. 52.227-19, as applicable (or in successor provisions to the foregoing).

9.      General

9.1              Notices.  All notices or other communications under this Agreement shall be made using electronic mail. Notice to Licensee shall be sent to the address identified by Licensee at the time of purchase of a licensed copy of the Software.  Notice to Licensor shall be sent to support@westclintech.com, or to such other address as may be designated by Licensor from time to time.

9.2              Assignment.  Licensee may not assign this Agreement or any of its rights or obligations hereunder without the express prior written consent of Licensor, except that Licensee may assign this Agreement to a successor pursuant to a merger, consolidation or sale of all or substantially all of such Licensee’s stock or assets, or all or a substantial portion of the business to which this Agreement relates. Any assignment in violation of this provision shall be void and of no force and effect. Licensor may assign this Agreement at any time.

9.3              Waiver; Severability; Amendment.  No waiver of any breach of any provisions of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach and no waiver will be effective unless made in writing. If any provision of this Agreement is deemed unlawful, void or for any reason unenforceable, it shall be deemed severable from, and shall in no way affect the validity or enforceability of the remaining provisions. This Agreement may be modified only by a written amendment signed by an authorized Licensor representative.

9.4              Choice of Law.  This Agreement shall be governed by, and interpreted in accordance with, the substantive laws of the State of New York, without regard to conflicts of law rules, and the federal laws of the United States. The United Nations Convention on Contracts for the International Sale of Goods shall not apply..

9.5              Consent to Jurisdiction.  Any litigation arising out of this Agreement shall be resolved exclusively by the state or federal courts sitting in New York, New York, and each party hereby irrevocably submits to the jurisdiction of any such court.

9.6              Licensor’s Remedies Non-Exclusive.  The rights and remedies of Licensor that are set forth in this Agreement shall be non-exclusive and shall not limit any rights or remedies available to Licensor at law, in equity or otherwise.

9.7              Successors and Assigns.  This Agreement will be binding on and inure to the benefit of the parties hereto and their successors and permitted assigns.

9.8              Entire Agreement.  The Agreement is the complete and exclusive statement of the agreement between Licensee and Licensor, which supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement.