(c) Copyright 2017-18 Capsenta Inc, all rights reserved.
END USER LICENSE ACKNOWLEDGEMENT AND AGREEMENT
YOU ARE ACCESSING THE SOFTWARE EITHER BECAUSE: 
(A) YOU AND/OR YOUR ORGANIZATION HAS AGREED TO AND EXECUTED A SEPARATE SOFTWARE LICENSE WITH CAPSENTA PERTAINING TO THE SOFTWARE AND/OR RELATED SERVICES (ANY SUCH AGREEMENT, AN “EXECUTED LICENSE AGREEMENT”); OR
(B) YOU WISH TO DO SO ON AN EVALUATION BASIS. 
IF YOU ARE ACCESSING THE SOFTWARE BECAUSE OF (A), ABOVE, THEN YOU UNDERSTAND AND, BY CLICKING TO ACCEPT THESE TERMS, OR DOWNLOADING OR INSTALLING THE SOFTWARE (DEFINED BELOW), AGREE THAT YOUR ACCESS TO AND USE OF THE SOFTWARE IS GOVERNED BY THE TERMS AND CONDITIONS OF THE EXECUTED LICENSE AGREEMENT, AND YOU AGREE TO BE BOUND THEREBY. 
IF YOU ARE ACCESSING THE SOFTWARE BECAUSE OF (B), ABOVE, THEN YOU (“LICENSEE”) UNDERSTAND AND, BY CLICKING TO ACCEPT THESE TERMS, OR DOWNLOADING OR INSTALLING THE SOFTWARE (DEFINED BELOW), AGREE THAT YOUR ACCESS TO AND USE OF THE SOFTWARE IS GOVERNED BY THE TERMS AND CONDITIONS OF THE EVALUATION LICENSE SET FORTH BELOW (THIS “AGREEMENT”).
1. Definitions.  “Software” means collectively the Capsenta Ultrawrap software or other Capsenta software specified at installation, in object code format. “Documentation” means the reference materials that describe the specifications, features, operating characteristics, operation and permitted use of the Software and provided by Capsenta with the Software, if any. 
2. Evaluation Software License.  Subject to the terms and conditions of this Agreement, Capsenta hereby grants Licensee a personal, non-sublicensable, non-exclusive, non-transferable, license during the term of this Agreement to install one (1) instance of the object code version of the Software on a server owned and controlled by Licensee and use such Software to assess and query Licensee’s internal databases, provided that such databases do not exceed any limitations specified by Capsenta in the Documentation and provided further that such use is limited to evaluation purposes in order to determine whether to obtain a non-evaluation license, and is not deployed for production purposes. You may also use and make a reasonable number of copies of the Documentation solely for internal business purposes in conjunction with Licensee’s authorized use of the Software.  Capsenta reserves all rights in the Software and Documentation not expressly granted to Licensee in this Agreement. 
3. Restrictions. Licensee may not use the Evaluation Version for any purposes not expressly allowed pursuant to Section 2. Without limitation, Licensee may not (i) use the Software for competitive analysis, commercial, professional, or for-profit purposes, (ii) install or use the Software on computer systems or servers not owned and controlled by Licensee, or provided on Licensee’s behalf, or use the Software to access any database other than Licensee databases for which the Software has been licensed; (iii) install or allow access to the Software on more than the number of instances specified; (iv) use the Software other than as authorized under this Agreement, (v)  use the Software to provide time sharing, hosted or similar services for any third party, or resell, lease, sublicense, assign, transfer, distribute or otherwise grant any rights in the Software to any other party, including, without limitation, for any commercial time-sharing, rental, outsourcing or service-bureau use; (vi) copy the Software except as expressly authorized by Capsenta in writing; (vii) disclose to any other party, the capabilities, performance, capacity or any deficiencies in the Software; or (viii) modify, adapt, translate, reverse engineer, disassemble, decompile or otherwise attempt to derive source code from the Software and/or any of the materials provided by Capsenta to Licensee hereunder (except to the extent such restriction is expressly prohibited by law). Licensee acknowledges that the Software may contain security and other license enforcement mechanisms to prevent operation of the Software outside the bounds authorized hereunder, including without limitation use of an Evaluation Version beyond the Evaluation Period.  Licensee shall not attempt to defeat or circumvent any encryption, security, or license enforcement mechanisms contained in the Software.
4. Evaluation Period. You may only use the Software for the numbers of days dictated by the license enforcement mechanism separately delivered by Capsenta (the “Evaluation Period”). Unless you pay the applicable license fee for the Software and you or your organization enters into a non-evaluation license agreement with Capsenta, the Software may become inoperable and, in any event, your right to use the Software will automatically expire at the end of the Evaluation Period. 
5. Ownership.  This license confers no ownership rights to Licensee and is not a sale of any rights in the Software, the Documentation, or the media on which either is recorded or printed.  Except as noted herein, Capsenta shall own and retain ownership of all right, title, and interest in and to (i) the Software and any copies thereof; (ii) the Documentation and any copies thereof; (iii) the Capsenta trademarks and service marks; (iv) any ideas, suggestions, or feedback relating to the Software and Documentation (“Feedback”); and (v) all intellectual property rights embodied within the foregoing (i)-(iv).  Licensee hereby irrevocably assigns and agrees to assign all of Licensee’s right, title, and interest in and to any Feedback to Capsenta. 
6. Confidentiality.  The Software and Documentation contain proprietary and confidential information of Capsenta or Capsenta’s licensors as well as trade secrets owned by Capsenta or Capsenta’s licensors.  Licensee agrees to hold the Software and Documentation in strict confidence and not to use or disclose the Software or Documentation in any way except as expressly permitted hereunder.  Licensee agrees to protect the Software and Documentation at least to the same extent that it protects its similar confidential information, but in no event less than reasonable care. 
7. Disclaimer of Warranties. CAPSENTA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, MAINTENANCE AND SUPPORT SERVICES, INSTALLATION SERVICES, OR ANY OTHER MATERIALS (TANGIBLE OR INTANGIBLE) OR SERVICES SUPPLIED BY CAPSENTA, ITS RESELLERS, OR ITS AGENTS, AND CAPSENTA HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, ACCURACY OF DATA, AND NON-INFRINGEMENT.  CAPSENTA PROVIDES NO WARRANTY WITH RESPECT TO ANY LICENSEE DATABASE.  LICENSEE IS SOLELY RESPONSIBLE FOR THE PROPER OPERATION OF THE LICENSEE DATABASE(S) AND SECURING ANY PERMISSION OR LICENSES REQUIRED FOR THE USE OF THE SOFTWARE TO ACCESS, COPY AND DISPLAY THE LICENSEE DATABASE(S) AS REQUIRED FROM THIRD PARTY VENDORS OR LICENSORS.  THE SOFTWARE, DOCUMENTATION AND MAINTENANCE MODIFICATIONS ARE PROVIDED “AS IS.”
8. Limitation of Liability.  TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER CAPSENTA NOR CAPSENTA’S LICENSORS SHALL BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION, LOST BUSINESS INFORMATION OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, CAPSENTA AND CAPSENTA’S LICENSORS’ CUMULATIVE LIABILITY TO LICENSEE, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND SHALL NOT EXCEED THE GREATER OF: (i) THE FEES ACTUALLY PAID BY LICENSEE TO CAPSENTA OR ITS AUTHORIZED RESELLER FOR THE SOFTWARE, IF ANY, OR (i) $50.  THE DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT ARE FUNDAMENTAL PARTS OF THE BASIS OF CAPSENTA’S BARGAIN HEREUNDER, AND LICENSEE ACKNOWLEDGES THAT CAPSENTA WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE TO LICENSEE ABSENT SUCH LIMITATIONS.  THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
9. Government Users.  If Licensee is a branch or agency of the United States Government or a contractor thereto, the following provision applies.  The Software and Documentation are comprised 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 Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policies set forth in 48 C.F.R. 12.212; or (ii) for acquisition on behalf of the department of defense consistent with the policies set for the in 48 C.F.R. 227.7202-1 (Aug. 1995) and 227.7202-3 (Aug. 1995). 
10. Term and Termination. This Agreement is effective upon installation of the Software, and shall remain in effect unless terminated in accordance with this section. The Agreement will automatically terminate upon Licensee’s failure to comply with any term or condition of this Agreement or upon expiration of the Evaluation Period. Upon termination, (i) Licensee shall cease all use of the Software, (ii) Licensee shall either return to Capsenta or destroy both the Software and the Documentation together with any copies thereof; and (iii) all terms and conditions of this Agreement shall cease, except for Sections 1 (Definitions), 3 (Restrictions), 5 (Ownership), 6 (Confidentiality), 7 (Disclaimer of Warranties), 8 (Limitation of Liability), 10 (Term and Termination), 12 (Governing Law and Venue), 13 (Export Restrictions), and 14 (Miscellaneous) which shall survive termination of this Agreement.
11. Other Third Party Components and Services. Licensee acknowledges that (i) the Software may contain other software or components that are either owned by a third party or in the public domain, and (ii) Capsenta has no proprietary interest in such software or components (collectively and each, the “Third Party Software”), and as such, cannot grant Licensee a license to use such Third Party Software. A listing of such Third Party Software is available upon written request. The terms and conditions of this Agreement do not apply to the Third Party Software, except that the warranty disclaimers and limitations of liability set forth in these terms and conditions will apply to the extent not conflicting with the provisions of any applicable Third Party Software license.  Licensee’s rights in the Third Party Software are governed by and subject to the terms and conditions set forth in the applicable third party license(s) also set forth therein. Licensee acknowledges and agrees to fully comply with such terms and conditions. IN ADDITION TO ANY DISCLAIMERS SET FORTH IN SUCH TERMS AND CONDITIONS, THE DISCLAIMERS SET FORTH AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN SHALL APPLY TO CAPSENTA AND ITS LICENSORS WITH RESPECT TO SUCH THIRD PARTY SOFTWARE. In addition, certain components of the Software are, due to their interaction with third party software, required to be made available to you under terms and conditions other than this Agreement.  Such component(s) are identified on the Third Party Software document, together with the terms and conditions that apply thereto.  
12. Governing Law; Venue.  This Agreement shall be governed by and interpreted in accordance with the laws of the State of Texas, USA, without regard to any principles of conflict of laws.  All disputes arising under this Agreement shall be brought exclusively in a federal or state court located in Travis County, Texas.  Licensee consents to the personal jurisdiction of such courts and hereby waives any objection to venue of such courts.  The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) are specifically disclaimed in their entirety.
13. Export Restrictions. Licensee understands that the Software and related technology may be subject to export regulations, including, but not limited to, the U.S. Department of Commerce’s Export Administration regulations (“EAR”), which prohibit and/or require licenses for exports of certain goods, software, and technology.  Licensee warrants that it will comply with the EAR and any other applicable export regulations. Specifically, Licensee warrants that it will not use, export, re-export, transfer, or divert the Software, any other products or technology obtained from Capsenta in violation of the EAR or other applicable export regulations.  Licensee shall cooperate as reasonably requested by Capsenta to ensure compliance with any export restrictions or license requirements relating to the Software.
14. Miscellaneous. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and remain in full force and effect.  Failure or delay in enforcing any right or provision of this Agreement shall not be deemed a waiver of such right or provision with respect to any subsequent breach.  No terms, provisions, or conditions of any purchase order, acknowledgement, check, or other business form that Licensee may use in connection with the acquisition or licensing of the Software will have any effect on the rights, duties, or obligations of the parties under this Agreement, regardless of any failure of Capsenta to object to such terms, provisions, or conditions.  This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous discussions, representations, and proposals, whether in writing or oral, with respect to the subject matter of this Agreement.  This Agreement may not be amended or modified in any respect unless approved in writing and signed by a duly authorized representative of the respective parties.  Licensee’s rights under this Agreement may not be transferred or assigned without the prior express written consent of Capsenta, and any such attempted assignment shall be void.  Capsenta may assign this Agreement in its discretion.