QDABRA® SOFTWARE

END USER LICENSE AGREEMENT

QDABRA SOFTWARE (hereinafter “LICENSOR”) is a Washington limited liability company with its principal offices located in Kirkland, WA 98033.

LICENSOR is the owner and publisher of certain software applications and associated documentation (the “Software Products”) including without limitation those listed in the Schedule A addendum to this END USER LICENSE AGREEMENT (hereinafter “EULA”). Each software product contains Intellectual Property Rights (as defined later herein) belonging to LICENSOR.

As sometimes used in this EULA, the term “you” also means "LICENSEE.”

Each of LICENSOR or LICENSEE (YOU) may sometimes be referred to herein as a “party,” and collectively LICENSOR and LICENSEE may sometimes be referred to herein as the “parties.”

NOTICE TO LICENSEE:

CAREFULLY READ ALL OF THE TERMS AND CONDITIONS IN THIS EULA BEFORE DOWNLOADING, COPYING AND INSTALLING, DISPLAYING, EXECUTING, PERFORMING OR USING THE PRODUCT.

IF THIS SOFTWARE PRODUCT INCLUDES “I AGREE” AND “CANCEL” BUTTONS AS PART OF THE INSTALLATION PROCESS. BY SELECTING THE “I AGREE” BUTTON, YOU ACCEPT THE TERMS AND CONDITIONS OF THIS EULA. BY SELECTING THE “CANCEL” BUTTON, THE INSTALLATION PROCESS WILL CEASE. THE INSTALLATION TEXT MAY INCLUDE WORDS SUCH AS THE FOLLOWING:

BY SELECTING THE “I AGREE” BUTTON OR OTHERWISE BY INSTALLING AND USING IN ANY WAY LICENSOR’S SOFTWARE PRODUCT, LICENSEE ACKNOWLEDGES THAT THIS END-USER LICENSE AGREEMENT (“EULA”) HAS BEEN READ, UNDERSTOOD AND ACCEPTED. LICENSEE ACCEPTS ALL THE TERMS AND CONDITONS OF THIS EULA (INCLUDING WITHOUT LIMITATION ALL SCHEDULES OR OTHER ATTACHMENTS THERETO.)

IF THIS SOFTWARE PRODUCT DOES NOT INCLUDE THE “I AGREE” AND “CANCEL” BUTTONS AS PART OF THE INSTALLATION PROCESS, THIS EULA APPLIES ANYWAY. IF YOU DO NOT AGREE WITH THIS EULA, YOU MUST UNINSTALL THE SOFTWARE PRODUCT AND DISCONTINUE USE OF IT.

IF YOU DO NOT AGREE WITH THIS EULA, YOU MUST UNINSTALL THE SOFTWARE PRODUCT, AND PERMANENTLY DELETE ALL BACK-UP COPIES AND CEASE ANY USE OF THE SOFTWARE PRODUCT.

YOU MAY NOT INSTALL, COPY, DISPLAY, EXECUTE, PERFORM OR USE ANY SOFTWARE PRODUCT UNLESS YOU COMPLY WITH THE TERMS AND CONDITIONS OF THIS EULA. IF THE SOFTWARE PRODUCT REQUIRES PURCHASE, THE SOFTWARE PRODUCT MAY ONLY BE INSTALLED, COPIED, DISPLAYED, EXECUTED, PERFORMED OR USED WHEN SUCH SOFTWARE PRODUCT HAS BEEN FULLY PAID FOR AND LICENSED AND ONLY SO LONG AS THERE IS NO VIOLATION OF ANY TERM OR CONDITION OF THIS EULA.

IF YOU INSTALL, COPY, DISPLAY, EXECUTE, PERFORM OR MAKE ANY OTHER USE OF THE SOFTWARE PRODUCT, YOU ARE DEEMED TO HAVE ACCEPTED, AND YOU ARE BOUND BY, ALL THE TERMS AND CONDITIONS OF THE EULA (INCLUDING WITHOUT LIMITATION ANY APPENDICES OR SCHEDULES ATTACHED HERETO. APPLICABLE TO A PARTICULAR SOFTWARE PRODUCT). IN ORDER TO USE A SOFTWARE PRODUCT, YOU MAY BE REQUIRED TO OBTAIN A UNIQUE ELECTRONIC ACTIVATION CODE FROM LICENSOR TO ENABLE INSTALLATION, COPYING, DISPLAY, EXECUTION, PERFORMANCE AND USE OF THE SOFTWARE PRODUCT.

IF YOU DO NOT ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THE EULA, YOU ARE PROHIBITED FROM INSTALLING, COPYING, DISPLAYING, EXECUTING, PERFORMING, OR USING A SOFTWARE PRODUCT. YOU MUST DELETE AND REMOVE ANY AND ALL ELECTRONIC, DIGITAL, MAGNETIC OR OTHER TYPES OF COPIES OF THE SOFTWARE PRODUCT AND DESTROY RELATED DOCUMENATION. IF THE SOFTWARE PRODUCT WAS PURCHASED BY YOU, YOU MAY RETURN TO LICENSOR THE SOFTWARE PRODUCT AND THE PURCHASE PRICE WILL BE REFUNDED IN FULL ONLY IF YOU (1) CONTACT LICENSOR FOR A RETURN AUTHORIZATION NUMBER WITHIN FIFTEEN (15) DAYS FROM THE DATE OF PURCHASE OF SUCH SOFTWARE PRODUCT AS EVIDENCED BY THE SOFTWARE PRODUCT RECEIPT/INVOICE; (2) RETURN ALL DOCUMENTATION, MEDIA AND ALL RELATED ITEMS TO LICENSORS IN UNDAMAGED AND RESALABLE CONDITION; (3) DELETE AND DESTROY ANY AND ALL ELECTRONIC, DIGITAL, MAGNETIC OR OTHER TYPES OF COPIES IN OR ON ANY MEDIA OR MADE BY ANY MEANS OF THE SOFTWARE PRODUCT; AND (4) CERTIFY IN WRITING THAT YOU HAVE NOT KEPT, DISTRIBUTED, SHARED, SOLD, LOANED, DONATED, OR TRANSFERED IN ANY WAY ANY COPY OF THE SOFTWARE PRODUCT OR OTHERWISE VIOLATED ANY TERM OR CONDITION THIS EULA.

PLEASE BE AWARE THAT ANY VIOLATION OF THIS EULA (1) CONSTITUTES SERIOUS VIOLATIONS OF LAWS, INCLUDING WITHOUT LIMITATION, INFRINGEMENT, MISAPPROPRIATION AND CONVERSION OF LICENSOR’S COPYRIGHTS, TRADE SECRETS, INVENTION RIGHTS AND OTHER INTELLECTUAL PROPERTY RIGHTS, (2) WILL SUBJECT THE INFRINGER TO SIGNIFICANT CIVIL LIABILITIES FOR DAMAGES (INCLUDING WITHOUT LIMITATION STATUTORY DAMAGES), AS WELL AS OTHER REMEDIES AND LIABILITIES, AND (3) MAY ALSO CONSTITUTE VIOLATION OF CRIMINAL LAWS THAT CAN INCLUDE IMPRISONMENT FOR CONVICTED OFFENDERS.

Section 1. DEFINITIONS.

The following definitions apply to this EULA.

1. “Intellectual Property Rights” shall mean all worldwide intellectual property or industrial property rights arising under statutes, laws, regulations, common law, treaties, conventions, or other source, whether or not vested or inchoate, including, without limitation, all (i) provisional patents, patents applications, patents, conceptions, Inventions as defined herein, discoveries, or improvements owned or licensable, including without limitation any patent applications filed or patents acquired after your purchase of a Software Product for any Intellectual Property Rights in existence that is contained in or applies to the Software Product that you purchased; (ii) rights associated with works of authorship including copyrights, copyright applications, copyright registrations, moral rights, mask work rights, mask work applications, and mask work registrations; (iii) rights relating to the protection of trade secrets and any Confidential Information as defined herein; (iv) trademark, trade dress, or service mark rights; (v) any right analogous to those set forth in this Subsection 1.a and any other proprietary rights relating to intangible or industrial property; and (vi) utility models, divisionals, continuations, continuations-in-part, renewals, reissues, and extensions of the foregoing (whether now existing, hereafter filed, issued, or acquired), for any Intellectual Property Rights.
2. "Invention" as used herein is to be construed broadly and includes, but is not limited to, concepts, discoveries and ideas, whether patentable or not, including but not limited to computerized business methods, programs, methods, applications, designs, formulas, machines, methods, processes, product ideas or designs, and techniques, as well as improvements thereof or know-how related thereto, and any other intangible rights recognized by any of the patent laws and conventions in or out of the United States of America.
3. “Confidential Information" is to be construed broadly and includes, but is not limited to, all of the following: software architecture, data and other recorded information, designs, devices, discoveries, drawings, Inventions, know-how, materials and documents, procedures and products, software (including interfaces, object code, source code, firmware and any and all enhancements, related documentation, releases, revisions, and updates thereto), trade secrets, specifications, and the like, all whether in preliminary or final form and in and on any media whatsoever, that are created, conceived, reduced to practice, developed, discovered, invented or made, relating to the Software Product. Confidential Information does not include what is already public or what is later publicly made known without any unlawful acts, omissions and conduct of LICENSEE or third-parties.
4. The terms "Software Product" or "Software Products" apply to both purchased software and free software being licensed as a pre-release, beta, test, trial or other evaluation, “free download” or “free developer edition” software as follows:
   1. For Purchased Software the terms mean ONLY the software program or software programs that LICENSEE purchased AND that is or are specifically identified in LICENSOR’s invoice or invoices, including without limitation, any and all applications, help files, libraries, source code, executables, applets, scripts, forms, user manuals and documentation, technical manuals, systems manuals, and all other products included in or with any Software Product and all associated Intellectual Property for any computer operating systems ("Platforms").
   2. For Pre-Release, Beta, Test, Trial or other evaluation software, “Free Download” or “Free Developer Edition” software in the terms mean ONLY the free pre-release, beta, test, evaluation, free download, or free developer software to which this EULA applies, including without limitation, any and all applications, help files, libraries, source code, executables, applets, scripts, forms, user manuals and documentation, technical manuals, systems manuals, and all other products included in or with any Software Product and all associated Intellectual Property for any computer operating systems ("Platforms").
5. "Person" means a natural Person or any form of organization or entity including, but not limited to, corporations, partnerships, associations, limited liability companies, and governmental units.
6. “Purchase” or “purchased” mean “license” or “licensed.” Nothing in this EULA assigns in any way any of the ownership rights, title or interest in any Software Product to LICENSEE. Title to the Software Product and all modifications thereto shall remain with LICENSOR. Payment of the fees specified for a Software Product entitles LICENSEE to the grants described below for that specific paid-up Software Product. Any rights to updates, upgrades, or additions are subject to any fees that may be separately required by LICENSOR when they are available.
7. "Virtual Machine” shall mean an operating system that is running in a “virtualized” environment hosted on a physical computer whether the virtualization is accomplished by software or hardware (including for example only and not by way of limitation, software providing Virtual Machine environments including without limitation Microsoft Virtual PC, Microsoft Virtual Server, User-mode Linux, and EMC VMware, or hardware-based virtual machines such as Intel’s VT (Vanderpool) and AMD’s Pacifica), any CPU that is licensed to run one or more virtual environments, e.g. EMC VMWare or Microsoft Virtual Server 2005.Virtual Environment, or any other emulation of a physical CPU or machine running under the control of a Virtual Machine. Virtual Machine also means any virtualized environment run on any networks whether there is one physical “host,” more than one physical “host,” or no physical “hosts.”
8. Software Products are in some cases intended to be used with one or more of Microsoft Corporation’s products, and nothing herein or in any documentation for Software Products is intended to be any claim by Licensor to any of the Microsoft Corporation trademarks.

Section 2. LICENSE GRANTS AND SUPPORT

1. With respect to the Software Products that are the subject of this EULA, in accordance with the terms and conditions of this EULA, and in the case of purchased software properly paid for and licensed by LICENSEE, LICENSOR grants LICENSEE the rights as outlined in Schedule A attached hereto.
2. Nothing in this EULA grants LICENSEE any rights to reverse engineer, decompile, or do anything other than as specifically permitted herein for a Software Product or otherwise permitted by the copyright laws. LICENSOR reserves all of its rights, in law and equity, to the Software Products.
3. Schedule B attached hereto describes any support policies that may be in effect for a Software Product and also support options that may be purchased by LICENSEE.
4. LICENSOR may from time to time make available without charge such patches, fixes, or other changes for the Software Product, but LICENSOR shall have no obligation at any time to do so. Further, it shall be in LICENSOR’s sole discretion to determine whether any releases shall be made available without additional charge as “updates” or whether a release is substantial enough to be released as a new version or upgrade. YOU are not obligated to purchase any updates or upgrades that may later be offered for sale by LICENSOR.
5. The purchase prices for Software Products shall be the prevalent ones at the date of LICENSEE’s purchase. Software Products and prices are posted at LICENSOR’s Website at http://www.qdabra.com/ provided however, if any price is posted in error, any purchase must be based on LICENSOR’s actual price. Current prices may be obtained from LICENSOR’s sale office.
6. LICENSOR reserves all rights in and to the Software Products.

Section 3. TERM AND TERMINATION.

1. Term. The licenses granted herein for the Software Products that are the subject of this EULA shall be effective so long as LICENSEE is in compliance with all terms and conditions of the EULA.
2. Termination of EULA. The licenses granted herein shall be automatically terminated upon any breach by LICENSEE of any term or condition of the EULA. Any such termination shall not operate as a bar, discharge, release, forgiveness, waiver, forbearance, impairment, or other limitation of LICENSOR’s rights in law or equity against LICENSEE for breach of this EULA. Immediately upon any termination of the license grants made herein, LICENSEE’s rights to the applicable Software Products shall be terminated, and LICENSEE shall certify to LICENSOR that LICENSEE has returned to LICENSOR or has destroyed all documentation and materials and copies or partial copies of the applicable Software Products within its possession or control and LICENSEE shall make no further use of any Software Product.
3. Survival. The terms and conditions in the “NOTICE TO LICENSEE” section at the start of this EULA and Sections 1, 2.b, 2.f, 3.b, 4, 5, 6, and 7 in this EULA and Schedule A hereto shall also survive any termination of this EULA. In addition, if LICENSEE owes LICENSOR any then unpaid licensee fees, all such unpaid fees shall remain due and payable. Termination shall not be deemed to be and shall not be any or act as a bar, discharge, release, forgiveness, waiver, forebearance, impairment or any other limitation of LICENSOR’s rights and remedies, in law or equity, for any violations by LICENSEE of any term or condition of this EULA or for any other violations of law, including without limitation, any infringement of any of LICENSOR’s Intellectual Property Rights.

Section 4. LIMITED WARRANTY; LIMITATIONS OF LIABILITY AND REMEDIES.

1. LIMITED WARRANTY. LICENSOR makes only to LICENSEE the limited warranty expressly described in this Section 4. LICENSOR makes no warranties of any kind to any other Persons. To the maximum extent permitted by applicable laws, no other warranty of any kind, whether express or implied, is made by LICENSOR to the LICENSEE or any other Person.
   1. LICENSOR warrants that LICENSOR has the rights and/or licenses to make the license grants contained in this EULA.
   2. LICENSOR makes no warranty of any kind, implied or express, that any Software Product will meet LICENSEE’s requirements, or that any Software Product will be uninterrupted or error-free. The Software Products are licensed "AS IS" and with all faults. LICENSOR makes no warranty as to use or performance of a Software Product.
2. NO IMPLIED WARRANTIES. EXCEPT AS EXPRESSLY STATED IN SECTION 4.a.(1) ABOVE, LICENSOR DOES NOT MAKE AND HEREBY SPECIFICALLY EXCLUDES AND DISCLAIMS ALL WARRANTIES AND/OR INDEMNITIES, WHETHER EXPRESS, IMPLIED, OR ARISING BY TRADE USAGE OR COURSE OF DEALING, INCLUDING WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS, RESULTS, LACK OF NEGLIGENCE, OR ANY THING ELSE.
3. LIMITATIONS OF LIABILITY AND REMEDIES.
   1. UNDER NO CIRCUMSTANCES SHALL LICENSOR OR ITS DIRECTORS OR THEIR RESPECTIVE MEMBERS, DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES, AGENTS, AFFILIATES BE LIABLE FOR ANY SPECIFIC PERFORMANCE OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL, TREBLE OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, ARISING OUT OF OR IN ANY WAY RELATING TO THIS EULA OR ANY OF THE SOFTWARE PRODUCTS, INCLUDING WITHOUT LIMITATION, ANY DAMAGES FOR LOST GOODWILL OR PROFITS, LOSS OF DATA OR SOFTWARE, WORK STOPPAGE OR IMPAIRMENT OF OTHER GOODS, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR REASONABLE CARE, NEGLIGENCE, OR FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) EVEN IF LICENSOR OR ITS MEMBERS, DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES, AGENTS, AFFILIATES, OR DISTRIBUTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR KNOWS OR SHOULD HAVE KNOWN OF THE POSSIBLITY OF SUCH DAMAGES, AND WHETHER OR NOT THIS EULA FAILS IN ITS ESSENTIAL PURPOSE.
   2. THE RIGHTS AND REMEDIES OF LICENSEE ARE SPECIFICALLY SET FORTH IN THIS SECTION 4 AND ARE THE LICENSEE’S EXCLUSIVE REMEDIES, NOTWITHSTANDING ANY DAMAGES THAT LICENSEE MIGHT INCUR FOR ANY REASON WHATSOEVER. IN NO CASE SHALL ANY POTENTIAL LIABILITY TO A LICENSEE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DIRECT OR GENERAL DAMAGES, BY LICENSOR OR ITS MEMBERS, DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES, AGENTS, AFFILIATES, OR DISTRIBUTORS, IN THE AGGREGATE EXCEED THE AMOUNTS DESCRIBED BELOW:
      1. FOR A PURCHASED SOFTWARE PRODUCT, (1) EITHER THE PRODUCT OF (i) THE PURCHASE PRICE PAID BY THE LICENSEE FOR THE SOFTWARE PRODUCT TIMES (ii) THE SUM OF THIRTY SIX (36) MINUS THE NUMBER OF MONTHS THAT THE SOFTWARE PRODUCT WAS INSTALLED OR USED [UP TO THIRTY SIX (36) MONTHS] (iii) DIVIDED BY THIRTY-SIX (36); OR (2) THE PRODUCT OF (i) ONE THOUSAND UNITED STATES DOLLARS (U.S. $ 1000.00) TIMES (ii) THE SUM OF THIRTY SIX (36) MINUS THE NUMBER OF MONTHS THAT THE SOFTWARE PRODUCT WAS INSTALLED OR USED [UP TO THIRTY SIX (36) MONTHS] (iii) DIVIDED BY THIRTY-SIX (36); OR
      2. FOR PRE-RELEASE, BETA, TEST, TRIAL OR OTHER EVALUATION SOFTWARE, “FREE DOWNLOAD” OR “FREE DEVELOPER EDITION,” THE MAXIMUM IS TEN UNITED STATES CENTS (U.S. $ 0.10).
   3. NOTHING IN THE FOREGOING SHALL BE DEEMED TO BAR, DISCHARGE, RELEASE, FORGIVENESS, WAIVER, FOREBEARANCE, IMPAIRMENT, OR OTHER LIMITATION OF LICENSOR’S RIGHTS IN LAW OR EQUITY AGAINST THE LICENSEE OR ANY OTHER PERSON FOR ANY INFRINGEMENT OR OTHER VIOLATION OF ANY OF LICENSORS’S INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS.

Section 5. PROPRIETARY RIGHTS.

LICENSEE shall use its best efforts to prevent unauthorized installation, copying, display, execution, performance, distribution or other use in whole or in part of any Software Products. No title or ownership of any Software Product or related materials and documentation is transferred to LICENSEE hereunder. LICENSEE is granted no rights of any kind with respect to the source code of any Software Product. LICENSEE recognizes and acknowledges the exclusive right of LICENSOR in and to LICENSOR’s trademarks, service marks, trade names, copyrights, and other intellectual property and proprietary rights in and to each Software Product.

Section 6. RESTRICTED GOVERNMENT RIGHTS; EXPORT.

1. Restricted Government Rights. If LICENSEE is a governmental agency, LICENSEE agrees that the Software Products are provided with restricted rights. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(2)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252. 227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable. To the extent that these regulations have been or are amended or supplemented, all terms and conditions elsewhere in this EULA shall prevail to the fullest extent allowable by these regulations, any amendments and any future changes or supplements. Contractor/manufacturer is QDABRA SOFTWARE, 218 Main Street, #731, Kirkland, WA 98033, United States of America.
2. Export. The Software Products are subject to U.S. export jurisdiction.

Section 7. DISPUTES; ARBITRATION; GOVERNING LAW; MISCELLANEOUS

1. Arbitration, Jurisdiction, Venue and Attorneys' Fees. LICENSEE agrees that any dispute regarding, relating to, or arising from this EULA or any Software Product shall be determined in accordance with the Commercial Arbitration Rules of the American Arbitration Association before a single arbitrator mutually selected by the parties. The award of the arbitrator shall be final and binding on the parties. LICENSEE agrees and consents to personal jurisdiction, subject matter jurisdiction and venue in a federal or state court located in Seattle, King County, Washington, and waives all defenses of lack of personal jurisdiction or forum nonconveniens. The prevailing party shall be entitled to its reasonable attorney fees and costs as awarded by the arbitrator (or the court, as the case may be). This EULA shall be governed by and construed in accordance with the laws of the State of Washington. The prevailing party may seek to enforce a final arbitration award in any and all courts or forums that have jurisdiction over the losing party. The parties agree that this Section 7 is subject to the New York Convention.
2. Invalidity/Unenforceability/Waiver. The invalidity or unenforceability of any provision of this EULA shall not affect or impair the validity or enforceability of any other provision hereof. The exercise of any right or remedy herein provided shall be without prejudice to the right to exercise any other right or remedy provided herein or by law. No waiver of rights shall be valid unless contained in a writing specifically referring hereto and signed by the Person against whom enforcement is sought.

Section 8: ENTIRE AGREEMENT. In addition to the agreement to pay the applicable licensee fees for a Software Product being purchased, this EULA and all attachments hereto constitute the entire agreement between LICENSOR and LICENSEE and supersedes any and all oral or other agreements, statements, representations, and/or negotiations that may are not expressly incorporated in this EULA. This EULA may only be amended in a writing executed by authorized representatives of LICENSOR and LICENSEE.

Schedule B

STANDARD SUPPORT

LICENSEES are permitted without charge to participate in the support forum at http://www.qdabra.com/ so long as LICENSOR maintains such forum. LICENSOR is not obligated to maintain this forum. Any use of the forum shall be subject to the appropriate use of language by users, and LICENSOR may in its sole discretion refuse participation by anyone.

LICENSEES purchasing product for full price may receive up to one hour without charge of virtual technical support consultation with LICENSOR or its designated support personnel. Any other technical support is subject to LICENSOR paying the then applicable support hourly rates of technical personnel. Pricing is available at: http://www.qdabra.com/.

PAID SERVICE AGREEMENTS

Please contact LICENSOR’s sales office.

CUSTOM PROGRAMMING OR SOFTWARE DEVELOPMENT

Please contact LICENSOR’s sales office.