End User License and Solution Assurance Agreement

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END USER LICENSE AND SOLUTION ASSURANCE AGREEMENT RES SOFTWARE (“EULA”)
USER NOTICE: BY INSTALLING THIS SOFTWARE YOU AS LICENSEE ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS EULA AND AGREE TO THE CONDITIONS AND PROVISIONS HEREIN AND THAT YOU ARE DULY AUTHORIZED TO EXECUTE THIS EULA. YOU SHALL INFORM ALL USERS OF THE SOFTWARE OF THE TERMS AND CONDITIONS OF THIS EULA. YOU ACCEPT THAT THIS EULA IS THE FULL AND EXCLUSIVE EXPRESSION OF THE AGREEMENT BETWEEN YOU AND RES SOFTWARE AND THAT IT TAKES PRECEDENCE OVER ALL PREVIOUS PROPOSALS OR VERBAL OR WRITTEN AGREEMENTS AND OTHER POSSIBLE COMMUNICATIONS REGARDING THE SUBJECT OF THIS EULA. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, YOU MAY NOT INSTALL THIS SOFTWARE.

LICENSOR. This license is granted to licensee (End-User) by Real Enterprise Solutions Nederland B.V., a company organized under the laws of the Netherlands. If End-User is located in the United States or Canada, this license is granted to End-User by Real Enterprise Synergy Inc, a company organized under the laws of Delaware. In this EULA, the term RES Software refers to Real Enterprise Solutions Nederland B.V. or Real Enterprise Synergy, Inc.

LICENSE. The software provided herewith, and, as long as End-User has a right to Solution Assurance, any Product Releases or Service Releases related thereto, including the end user manuals and documentation (the "Software") are licensed to End-User by RES Software and are provided for use solely under the terms of this EULA. RES Software reserves all rights not expressly granted under this EULA.

RES Software hereby grants to End-User a perpetual (except as otherwise provided herein) non-exclusive, non-transferable license, to install, use, perform and display the rightfully obtained version of the Software, solely in object code format for End User’s own internal business use and without the right to sub license. The Software may only be used for the purpose for which it is designed as described in the documentation and on the RES portal. The documentation is licensed solely for the purposes of supporting End-User’s use of the Software as permitted in this section.

The Software may only be used on the site and within the infrastructure environment it was first installed. Depending on the edition that End-User obtained a license for, End-User is allowed to use all or limited functionality of the Software. The number of licenses required by End-User depends on either the number and type of devices to be used, the number of concurrent users, the number of named users, or the specific allocated tasks to be performed by the Software, as further specified on the RES Software website and pricelist.

The use of the Software is limited to the number of licenses that End-User actually paid for or otherwise rightfully acquired. If End-User obtains subscription licenses the term for use is not perpetual, but limited to the specific subscription period agreed to.

RESTRICTIONS. End-User is not permitted to: (i) reverse engineer, disassemble or decompile the Software or any portion thereof or otherwise attempt to derive or determine the source code or the logic therein, except to the extent and for the express purposes authorized by applicable law, and only if RES Software is not willing or able to provide the relevant information to End-User; (ii) remove or evade any technical protection (iii) use plug-ins or extensions not distributed by RES Software which enable modification of the Software; (iv) modify or change or make new installation programs for the Software; (v) use the Software for on behalf of third parties or sub-license, rent, sell, lease, distribute or otherwise transfer the Software and (vi) use the Software in or in association with safety critical applications such as, without limitation, medical systems, transport management systems, vehicle and power generation applications including but not limited to power applications.

EVALUATION SOFTWARE AND EXPRESS EDITION. If available, End-User may download certain evaluation editions ("Evaluation Software") and/or express editions ("Express Edition") of the Software from www.ressoftware.com free of charge. End-User has the right to use the Evaluation Software for evaluation purposes only. The Evaluation Software license expires on the expiry date. The Express Edition provides limited functionality of the RES Software product.

AUDIT. On RES Software’s request, and at RES Software’s expense, RES Software may conduct an audit of End-User’s use of the Software. Any such audit shall be conducted during regular business hours at End-User’s facilities and shall not unreasonably interfere with End-User’s business activities. If an audit reveals that End-User has underpaid in relation to the actual use of the Software, in addition to other remedies, End-User shall be invoiced for such underpaid fees. If the underpaid fees exceed five percent (5%) of the license fees paid, then End User shall also pay RES Software’s reasonable costs for conducting the audit.

OWNERSHIP. The Software is the intellectual property of RES Software and/or its licensors and contains material that is protected by intellectual property rights and legislation of various countries worldwide. This EULA does not grant to End-User any ownership interest in the Software. End-User shall not remove any proprietary notice of RES Software from any copy of the Software. Third party materials and/or software presented or accessed using the Software ("Third Party Materials") are owned by the respective third parties and may be protected by intellectual property rights and the use of such Third Party Materials may be subject to the terms of use of such third parties. The End-User is solely responsible to obtain a valid license for the use of Third Party Materials.

SOLUTION ASSURANCE. With the exception of Evaluation Software, and Express Edition, End-User is obligated to buy a subscription to maintenance and support ("Solution Assurance") for a period of minimum 1 (one) year starting at the date the End-User receives the license key. End-Users subscription to Solution Assurance will automatically renew for additional one (1) year periods, unless either party gives the other party written notice of its intent not to renew at least thirty (30) days prior to the expiration of the then current term of the subscription. The fees due for Solution Assurance shall amount to a maximum of 20% of the then-current list-price of the Software. RES Software reserves the right to adjust its prices for Solution Assurance. If End-User does not accept an adjustment of the prices, End-User shall be entitled to terminate its subscription to Solution Assurance services within thirty (30) days of receipt of the written notification of the price adjustment. End-User shall pay invoices for Solution Assurance within the payment term stated on the invoice. If no payment term is specified, a payment term of thirty (30) days shall apply. In order to benefit from Solution Assurance, End User must have a valid license for the latest version of the Software. If End-User has elected to terminate its subscription to Solution Assurance and, at a later date, wishes to reinstate Solution Assurance, RES Software is entitled to charge a reinstatement fee.

CONTENT OF SOLUTION ASSURANCE. Solution Assurance consists of: (1) right to download and use Service Releases to the Software. Service Releases will be provided with a minimum of two per year. A Service Release consists of a number of bundled fixes to Defects. A Service Release does not necessarily offer new functionality. For the purpose of this EULA a Defect means a reproducible instance of adverse and incorrect operation of the Software that impacts End-User’s ability to use functionality as described in the documentation to the Software. Minor discrepancies that do not impair the normal use of the Software shall not constitute a Defect under this EULA; (2) right to download and use Product Releases to the Software. Product Releases will be provided with a minimum of one every three years. A Product Release contains new functionality and features; (3) Access to RES Software Support by Internet, e-mail and phone (during specified office hours). RES Software Support will assist in locating and solving problems and Defects in the Software. (4) Access to the RES Portal, including the RES Software Knowledge Base. Further details on Solutions Assurance are described in the Solution Assurance document available through the RES Software website.

EXECUTION OF SOLUTION ASSURANCE SERVICES. RES Software provides Solution Assurance on a commercially reasonable efforts basis in a way it considers appropriate. RES Software is not obliged to follow the directions of the End-User. End–User shall first analyze any problems with the Software internally and consult the RES Software Knowledge Base before contacting RES Software support. End-Users shall appoint a qualified contact person for contact with RES Software support. End-User shall provide all relevant materials to RES Software when contacting RES Software support. RES Software is entitled to examine and test materials delivered by End-User. RES Software is under no obligation to use those materials. End-User guarantees that RES Software is entitled to use the materials and, after approval by End-User, is allowed access to its systems, to provide Solution Assurance.

RES Software will provide full Solution Assurance on the current Product Release until a new Product Release is available. Solution Assurance on the previous Product Release will be limited to making available existing and new fixes on request by End-User(s) for at least 1 year after general availability of the latest Product Release. Furthermore, for all older versions access to RES Software support and the RES Software portal and knowledge base which contains previously developed solutions will remain available. RES Software cannot provide optimal Solutions Assurance to End-User if End-User does not use the latest Product Release or Service Release. RES Software reserves the right to terminate the End-User’s subscription to Solution Assurance with prior written notice and/or to amend the financial or other conditions of this EULA in case of excessive use of the Solution Assurance services by the End-User, or if End-User does not install the latest Product Release or Service Release.

EXCLUSIONS. Solution Assurance services do not cover resolution of Defects which result from (i) third party software or hardware (ii) any modifications to the Software carried out by a party other than RES Software (iii) use of the Software by End-User which is not in accordance with the documentation. RES Software will only support the Software on platforms for which all components are supported by their respective vendors, under standard conditions, as of the date the support request is made by the End-User to RES Software. Solution Assurance does not cover source code supplied by RES Software as part of either a consulting engagement or as a demo, sample or contribution.

USE OF RES SOFTWARE MATERIALS. All materials, including, but not limited to the RES Software portal and knowledge base, demo’s, samples or contributions provided by RES Software (the "Materials") by whatever means is either owned by or licensed to RES Software. End-User may only use those Materials as part of the Solution Assurance and as long as he is entitled to Solution Assurance. In no event shall the End-User publish, retransmit, redistribute or otherwise reproduce any Materials in any format to anyone or use any Materials in any connection with any business or commercial enterprise, without the express written consent of RES Software. End-User will destroy all Materials not needed for the solution of a Defect once the technical problem is solved.

TERM AND TERMINATION. The EULA takes effect when End-User installs or uses the Software or at the date End-User receives the relevant license keys, whichever is sooner ("the Effective Date"). RES Software reserves the right to terminate this EULA upon 30 days notice in the event of: (1) a change of control of the End-User; (2) if End-User breaches any provision of this EULA and, upon receiving written notice of such breach, fails to remedy such breach within 30 (thirty) days following receipt of the notice; or (3) if a petition for End-User’s bankruptcy is filed or End-User has been declared bankrupt. Subscription to Solution Assurance shall automatically terminate on termination of the End-User license.

Upon termination End-User shall promptly cease to use the Software and return or destroy, at End-User’s expense and at RES Software’s option, all Software and any copies thereof and confirm this in writing to RES Software. The provisions regarding Audit, Intellectual Property, Limitation of Liability, and Miscellaneous shall survive the expiration or termination of this EULA.

LIMITED WARRANTY. RES Software warrants that the Software shall be free from material defects in materials and workmanship, and shall conform in all material aspects to the specifications as described in the documentation for a period of ninety (90) days from the Effective Date, provided the Software has been stored and used in accordance with ordinary industry practices and conditions. RES Software does not warrant that the functionality of the Software will meet End-User’s requirements or is fit for any particular purpose, or that the operation of the Software will be uninterrupted, error free, virus free or that Defects in the Software will be corrected. It is the responsibility of End-User to isolate the Software, to use anti-virus software, to make relevant back-ups and to take other steps to ensure that the Software does not damage End-User’s information or system.

In the event that the Software does not comply with the warranty set out in this section and RES Software is notified of such non-conformity within the warranty period, RES Software, at its choice, will replace such non-conforming Software at no additional charge or will refund the total amount paid for the non-conforming Software. The limited warranty as set forth in this section shall also apply to any Product Releases and Service Releases or any software that repairs or replaces the non-conforming Software. RES Software grants no other warranty, either specific or implied, including without limitation, warranties of merchantability or suitability for a particular purpose.

The Evaluation Software and the Express Edition are provided "as is" without warranty of any kind, whether express, implied, statutory, or otherwise. RES Software is not liable for any damages resulting from the use (or attempted use) of the Evaluation Software and the Express Edition at any time.

LIMITATION OF LIABILITY. RES Software shall in no event be liable to End-User or any third party for any indirect, incidental or consequential damages (including, without limitation, indirect, special, punitive, or exemplary damages for loss of business, loss of profits, business interruption, loss of data, or loss of business information) arising out of this EULA or connected in any way with use of or inability to use the Software or the provision of Solution Assurance, or for any claim by any other party, even if RES Software has been advised of the possibility of such damages. RES Software’s total liability to End-User for all damages, losses, and causes of action (whether in contract, tort (including negligence), or otherwise) shall not exceed € 10.000,-- (TEN THOUSAND EUROS) AND WITH RESPECT TO THE EVALUATION SOFTWARE AND EXPRESS EDITION, SHALL NOT IN ANY EVENT EXCEED € 500,--. IF END-USER IS LOCATED IN THE UNITED STATES OF AMERICA OR CANADA, THE FOREMENTIONED MAXIMUM AMOUNTS WILL BE $ 10.000 (TEN THOUSAND DOLLAR) AND WITH RESPECT TO THE EVALUIATION SOFTWARE AND EXPRESS EDITION $ 500,-- (FIVE HUNDRED DOLLAR)

RES Software liability will only arise if End-User informs RES Software in writing of any default and the damages resulting there from as soon as possible and gives RES Software a reasonable time to remedy a failure to perform. Any notice of default must specify the failure in as much detail as possible, so that RES Software will be able to act adequately.

FORCE MAJEURE. RES Software shall not be responsible for failures of its obligations under this EULA to the extent that such failure is due to causes beyond RES Software’s control, including, without limitation, natural disaster, war, strikes, fire, floods, explosions, acts of any government or agency thereof, failures of suppliers, disruption in electricity supply or non-availability of telecommunication services. If RES Software is prevented by force majeure from fulfilling its obligations under this EULA for more than ninety (90) days, RES Software and End-User are entitled to terminate the EULA in writing.

INDEMNIFICATION. RES Software shall indemnify, hold harmless and defend End-User against any action brought against End-User to the extent that such action is based on a claim that any Software, when used in accordance with this EULA, infringes a copyright of a third party. RES Software shall pay all costs, settlements and damages finally awarded, provided that End-User promptly notifies RES Software in writing of any claim, gives RES Software sole control of the defense and settlement thereof, and provides all reasonable assistance in connection therewith.

If the Software is finally adjudged to so infringe, or in RES Software’s opinion is likely to become the subject of an infringement claim, RES Software shall, at its sole discretion, either: procure for End-User the right to continue to use the Software, modify or replace the Software to make it non-infringing, or upon return of the Software, refund the price paid by End-User for the Software, minus a reasonable usage fee. RES Software shall have no liability regarding any claim arising out of or caused by: End-User’s use of other than the latest, unaltered release of the Software unless the infringing portion is also in the then current, unaltered release; any modification or derivation of the Software not created or publicly released by RES Software. The aforementioned states the entire liability of RES Software and the exclusive remedy for End-User relating to any actual or claimed infringement of any intellectual property right.

End User shall indemnify, defend and hold harmless RES Software and its directors, officers, agents, employees, subsidiaries and affiliates from and against any claim, action, proceeding, liability, loss, damage, cost, or expense (including, without limitation, attorneys’ fees), arising out of or in connection with the use of the Software that is not in strict accordance with this EULA by End-User, its employees, subcontractors, or others. RES Software shall provide reasonable cooperation and assistance to End User in defending the claim.

COMPLIANCE WITH LAWS. End User must comply with all domestic and international (export) laws and regulations to the Software and with any end-user, end-use and destination restrictions issued by governments. End-User must at its own expense obtain and arrange for the maintenance of any government approval and comply with all applicable laws and regulations necessary for End-User’s performance of the EULA. End-User acknowledges that it is responsible for obtaining any licenses to export, re-export or import the Software as may be required. End-User will defend, indemnify, and hold harmless RES Software from and against all fines, penalties, liabilities, damages, costs and expenses incurred by RES Software as a result of any violation of export (control) laws or regulations by End-User or any of its agents or employees.

PERMANENT EFFECT. RES Software reserves the right to modify this EULA for any new Product Release or Service Release. By installing and continuing to use the new Product Release or Service Release of the Software over a periodof thirty (30) days, End-User accepts the new or revised version of this EULA.

NOTICES. Any notices permitted or required under this Agreement shall be in writing, and shall be deemed given when delivered (i) in person, (ii) by overnight courier, upon written confirmation of receipt, (iii) by certified or registered mail, with proof of delivery, (iv) by facsimile transmission with confirmation of receipt, or (v) by email, with confirmation of receipt (except for routine business communications issued by RES Software, which shall not require confirmation from End-User). Notices shall be sent to the address, facsimile number or email address set forth below, or at such other address, facsimile number or email address as provided to the other party in writing. Notices for RES Software shall be sent to: Het Zuiderkruis 33, 5215 MV ‘s-Hertogenbosch, The Netherlands. Fax for legal notices: +31 (0)73 622 8811. Email for legal notices: info@ressoftware.com.

APPLICABLE LAW. Except for End-Users residing in the United States, this EULA shall be governed, construed and enforced in accordance with the laws of the Netherlands, without giving effect to its conflict of law principles. Any legal action will be brought exclusively before the relevant court in Amsterdam, the Netherlands. Proceedings will take place in Dutch. For End-Users residing in the US only: This EULA shall be governed, construed and enforced in accordance with the laws of the State of Delaware, without giving effect to its conflict of law principles. Any dispute regarding this EULA shall be subject to the exclusive jurisdiction of the state and federal courts of Philadelphia.

MISCELLANEOUS. End-User may not assign or transfer its rights or obligations arising under this EULA to any third party, including any group of companies, parent companies, subsidiaries and affiliated companies of End-User without the written consent by RES Software , and any such attempted assignment or transfer shall be void and without effect.

The failure of any party to enforce a provision of this EULA shall not constitute a waiver of such provision or any other provision or of the right of such party thereafter to enforce any provision of this EULA.

RES Software reserves the right to use End-Users name or trademark, trade name or logo in external communications, presentations and marketing materials, and on its website and to describe the solution provided to End-User in these external communications.

Any rights not expressly granted herein are reserved by RES SOFTWARE.

Copyright © on software and all Materials 1998-2011 Real Enterprise Solutions Development BV, P.O. Box 33, 5201 AA `s-Hertogenbosch, The Netherlands. RES and the RES Software Logo are either registered trademarks or service marks of Real Enterprise Solutions Nederland B.V. in Europe, the United States and other countries. RES Automation Manager, RES Workspace Manager, Dynamic Desktop Studio, Virtual Desktop Extender and RES VDX are trade names of Real Enterprise Solutions Nederland B.V. in Europe, the United States and other countries. All other product and company names mentioned may be trademarks and/or service marks of their respective owners. Real Enterprise Solutions Development BV, The Netherlands has the following patents: U.S. Pat. "US 7,433,962", "US 7,565,652", "US 7,725,527", other patents pending or granted.

Version 20110207