StayLinked Software – END USER LICENSE AGREEMENT

STAYLINKED SOFTWARE END USER LICENSE AGREEMENT

PLEASE READ THIS DOCUMENT CAREFULLY BEFORE DOWNLOADING, OPENING AND/OR USING SOFTWARE PROVIDED TO YOU BY LICENSOR, AS IT CONTAINS THE TERMS AND CONDITIONS BY WHICH LICENSOR OFFERS TO LICENSE THE SOFTWARE.

BY ACCEPTING THIS AGREEMENT AND USING STAYLINKED SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, PLEASE CANCEL THE INSTALLATION PROCESS. DO NOT USE STAYLINKED IF YOU DO NOT WANT TO BE BOUND BY THIS AGREEMENT.

THIS STAYLINKED END USER LICENSE AGREEMENT IS ISSUED BY STAYLINKED CORPORATION, OF IRVINE, CALIFORNIA (“LICENSOR”).

The term “Software” refers to all versions of StayLinked Software developed by StayLinked Corporation, including all Client, Server, and Administrator applications, SmartTE, Evolve, SmartHub, and the StayLinked SmartBrowser, collectively and individually.

The Software as supplied by Licensor is licensed to you, not sold to you, on a non-exclusive basis for use only under the terms of this License, and Licensor and its third-party suppliers reserve all rights not expressly granted to you. Your license confers no title or ownership and is not a sale of any rights in the Software or its documentation. If you are an authorized reseller of the Software who has been given specific rights to do so pursuant to a valid Reseller Agreement, you may sublicense the Software to an end-user for its use, provided that any sublicense must incorporate the terms of this License Agreement.

1. A.  Grant of Evaluation License.  Prior to receipt of a binding Purchase Order for the Software, and/or prior to Licensor’s receipt of payment in full for the Software, Licensor may supply you with the Software in its fully-functional form, allowing for a limited number of device connections, and for a limited time, to allow for your evaluation of the software. Under those circumstances, Licensor grants you a limited, non-exclusive, non-transferable license to use the Software so provided (“Evaluation Software”) for your evaluation of the Software for an initial period of 30 days only (“Evaluation Period”).   Licensor may, at its discretion, limit the number of Evaluation Licenses granted.  The Evaluation Software may contain disabling code that will cause the Evaluation Software to cease functioning after the Evaluation Period (as more specifically set forth below), unless the Licensor grants you an additional license or agrees to extend the Evaluation Period.

• B.  Disclaimer of Warranty and Limitation of Liability for Evaluation Software.  LICENSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, REGARDING THE EVALUATION SOFTWARE, ITS FITNESS FOR ANY PURPOSE, ITS QUALITY, ITS MERCHANTABILITY, OR OTHERWISE. LICENSOR DOES NOT WARRANT THAT THE OPERATION OF THE EVALUATION SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. IN NO EVENT SHALL LICENSOR BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR FOR ANY DAMAGES WHATSOEVER, INCLUDING ANY OR ALL GENERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES ARISING OUT OF YOUR USE OF THE EVALUATION SOFTWARE., HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. This Disclaimer of Warranty and Limitation of Liability For Evaluation Software applies specifically to the Evaluation Software provided pursuant to this Section, and supercedes any and all other warranty and liability provisions provided for herein.

2. Grant of Installation License.  Following receipt by Licensor of a binding Purchase Order for the Software, and prior to receipt of payment for the Software by Licensor, Licensor grants to you a non-exclusive, non-transferable license to use the Software and the Documentation as described below, for a period of 90 days (“Installation Period”) only.  The Software may contain disabling code that will cause the Software to cease to function after the Installation Period (as more specifically set forth below) unless payment in full for the Software is received by Licensor. Upon Licensor’s receipt of payment in full for the Software, Licensor will issue a full license to use the Software and the Documentation per Part 3 below.  Following receipt by Licensor of payment in full for the Software, a full License will be granted to you, without limitations, as set forth below.

3. Grant of Permanent License Following Payment. Upon receipt by Licensor of payment in full for the Software, Licensor grants to you a non-exclusive, non-transferable license to use the Software and accompanying Documentation as described herein.  This license allows you to (a) use the Server component of the Software on any single server; (b) use the Client application of the Software to control at any given time no more than the number of concurrently active remote devices for which you have purchased a license for the Client application of the Software; (c) use the Software on a network, to facilitate the use of licensed Client applications only; (d) use a copy of the Software on a mirrored high-availability hot backup system, for emergency/disaster recovery only, consistent with the terms of the StayLinked Support and Maintenance Terms and Policies; and (e) make and keep a copy of the Software for backup purposes, provided that you must reproduce on any copy all copyright notices and any other confidentiality or proprietary legends that are on the original copy of the Software. You may not use the Software to control more than the number of concurrently active remote devices for which you have purchased a License unless you purchase additional Licenses from Licensor.

4. A.  Grant of Demonstration License.  To facilitate the demonstration of the Software to prospective End Users and/or Distributors, Licensor may supply you with the Software in its fully-functional form, allowing for a limited number of device connections, and for a limited time, to allow for your demonstration and evaluation of the software. Under those circumstances, Licensor grants you a limited, non-exclusive, non-transferable license to use the Software so provided (“Demonstration Software”) for your evaluation of the Software for a period of 3 hours only (“Demonstration Period”).   Licensor may, at its discretion, limit the number of Demonstration Licenses granted.  The Demonstration Software contains disabling code that will cause the Demonstration Software to cease functioning after the Demonstration Period (as more specifically set forth below), unless the Licensor grants you an additional license or agrees to extend the Demonstration Period.

• B.  Disclaimer of Warranty and Limitation of Liability for Demonstration Software.  THE DEMONSTRATION SOFTWARE IS NOT INTENDED TO BE RELIED UPON AND/OR USED IN AN OPERATING BUSINESS ENVIRONMENT, NOR SHALL ANY USER OF THE DEMONSTRATION SOFTWARE REASONABLY RELY UPON THE DEMONSTRATION SOFTWARE FOR ANY PURPOSE OTHER THAN AS A DEMONSTRATION OF THE CAPABILITIES OF THE SOFTWARE.

• LICENSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, REGARDING THE DEMONSTRATION SOFTWARE, ITS FITNESS FOR ANY PURPOSE, ITS QUALITY, ITS MERCHANTABILITY, OR OTHERWISE. LICENSOR DOES NOT WARRANT THAT THE OPERATION OF THE DEMONSTRATION SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. IN NO EVENT SHALL LICENSOR BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR FOR ANY DAMAGES WHATSOEVER, INCLUDING ANY OR ALL GENERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES ARISING OUT OF YOUR USE OF THE DEMONSTRATION SOFTWARE., HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

5. Disabling Software.  In order to facilitate and monitor the Evaluation Licenses and Installation Licenses granted by Licensor as set forth above, you acknowledge that the Software may contain code which, depending on your type of license to use the Software, may be used to disable the Software.  This disabling code may be used to ensure that you do not use the Software longer than the term of your license to use the Software.  You agree and acknowledge that upon the expiration of your license to use the Software, and if Licensor has not granted you an extension, the Software may cease to function in some or all respects and you may lose access to data made with or stored using the Software.  You agree to indemnify and hold harmless Licensor and its agents, officers, consultants, employees, resellers and subcontractors from and against all actions, causes of action, claims, demands, costs, losses, liabilities, judgments, proceedings, and damages (including any costs, such as attorney’s fees, to defend against or investigate such claims) (each a “Claim”) arising or resulting from the disabling of the Software.  You agree and acknowledge that the disabling of the Software is a key feature of the license rights and responsibilities conveyed under this Agreement.

6. Restrictions. You may not distribute or transfer copies of the Software to others, allow others to use the Software, or copy the Software onto any public or distributed network. You may, however, transfer all your rights to use the Software to another person or legal entity provided that: (a) you also transfer this Agreement, the Software and all other software or hardware bundled or pre-installed with the Software, including all copies, updates and prior versions, to such person or entity; (b) you retain no copies, including backups and copies stored on a computer; and (c) the receiving party accepts the terms and conditions of this Agreement and any other terms and conditions upon which you legally purchased a license to the Software. The Software may only be used when operating the associated server(s) and device(s) in configurations as licensed or subsequently upgraded by Licensor, unless specifically authorized and agreed upon in writing by Licensor.

7. Intellectual Property Rights.  The Software and any copies that you are authorized by Licensor to make are the intellectual property of and are owned by Licensor and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Licensor and its suppliers. The Software is protected by copyright, including without limitation by United States Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. You may not copy the Software, except as set forth in Section 3. Any copies that you are permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear on or in the Software. By using the Software and agreeing to the terms of this License Agreement, you acknowledge that the Software contains Licensor’s trade secrets, and you may not decompile, reverse engineer, disassemble, attempt to discover the source code, or otherwise reduce the Software to a human-perceivable form or disclose any such trade secrets to any third party. You may not modify, adapt, translate, rent, lease, grant a security interest in, loan, resell, distribute, or create derivative works based upon the Software, or any part thereof, except as specifically authorized and agreed upon in writing by Licensor. Notwithstanding the above, you acknowledge that all copyrights, trademarks, and other proprietary rights in any modification, adaptation, translation or other derivation will revert to Licensor, and you agree to cause the execution of an appropriate instrument to perfect or assign such rights except as expressly agreed upon in writing by Licensor. 

8. Your Responsibilities. Except for setup, configuration and networking as allowed in the Software Documentation, you may not modify, or permit any person other than Licensor or its designated representatives to modify, any portion of the Software. You must assure the proper use, management and supervision of the Software and any application programs, audit controls, operating methods and office procedures necessary for the intended use thereof. You have the sole responsibility for the selection, use, and results of use of any other products you select to operate in combination with the Software.

9. Multiple Environment Software / Multiple Language Software / Multiple Copies / Bundles / Updates. If the Software supports multiple platforms or languages, if you receive the Software on multiple media, if you otherwise receive multiple copies of the Software, or if you received the Software bundled with other software, the total number of servers and/or devices on which all versions of the Software are installed may not exceed the number of licenses which you have purchased. You may not rent, lease, sublicense, lend or transfer any versions or copies of the Software you do not use. If the Software is an update to a previous version of the Software, you must possess a valid license to such previous version in order to use the update. You may continue to use the previous version of the Software on your computer after you receive the update to assist you in the transition to the update, provided that the update and the previous version are installed on the same computer, and you acknowledge that any obligation Licensor may have to support the previous version of the Software may be ended upon availability of the update.

10. Verification of Compliance with Licenses.  You agree that upon request from Licensor, or from Licensor’s authorized representative, you will within thirty (30) days fully document and certify that use of any and all of the Software at the time of the request is in conformity with your valid licenses from Licensor.  Under extraordinary circumstances (including but not limited to issuance of a substitute license for utilization on a replacement server), Licensor may also reasonably verify compliance with the terms of this License Agreement, and verify the number of licenses that the number of licenses that you are using is consistent with the number of licenses that you have purchased, via an on-site visit by Licensor or Licensor’s authorized representative, upon reasonable notice.

11. Limited Warranty.  Licensor warrants to the person or entity that first purchases a license for the Software for use pursuant to the terms of this License, that the Software will perform substantially in accordance with the Documentation for the ninety (90) day period following receipt of the Software when used on the recommended hardware configuration. However, Licensor does not warrant that your use of the Software will be uninterrupted or that the operation of the Software will be error-free. Non-substantial variations of performance from the Documentation does not establish a warranty right. THIS LIMITED WARRANTY DOES NOT APPLY TO EVALUATION SOFTWARE OR INSTALLATION SOFTWARE FOR WHICH PAYMENT HAS NOT BEEN RECEIVED BY LICENSOR. If the Software does not perform substantially in accordance with the Documentation, the entire liability of Licensor and your exclusive remedy shall be limited to either, at Licensor’s option, the replacement of the Software or the refund of the license fee you paid for the Software. THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE ADDITIONAL RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.

12. Disclaimer.  THE FOREGOING LIMITED WARRANTY STATES THE SOLE AND EXCLUSIVE REMEDIES FOR LICENSOR’S OR ITS SUPPLIER'S BREACH OF WARRANTY.  LICENSOR AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, AND FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, LICENSOR AND ITS SUPPLIERS MAKE NO WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY OTHER MATTERS, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE.

13. Limitation of Liability.  IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER, OR ANY CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF A REPRESENTATIVE OF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS OR FOR ANY CLAIM BY ANY THIRD PARTY. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. LICENSOR.'S AGGREGATE LIABILITY AND THAT OF ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY.  THIS LIMITATION OF LIABILITY WILL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. The Software is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”).  Licensor and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities. 

14. Termination. This Software license is effective until terminated and is expressly for use on the equipment to which it was originally assigned. This license will terminate immediately without notice from Licensor or applicable third party suppliers or judicial resolution if you fail to comply with any provision of this Agreement. This license shall be null and void in the event you or any third party ships the Software to any country other than that originally specified in your Purchase Order. Upon termination you must destroy the Software, all accompanying written materials, and all copies thereof. You may terminate this license at any time by destroying or returning the Software, written materials and all copies thereof.

15. Export Rules. You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the "Export Laws"). In addition, if the Software is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Syria, Sudan, Libya, Cuba, North Korea, and Serbia) and that you are not otherwise prohibited under the Export Laws from receiving the Software. You agree to comply strictly with all such regulations and acknowledge that you have the responsibility to obtain all licenses required to export, re-export, or import the Software. All rights to use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.

16. U.S. Government End Users. The Software constitutes commercial computer software programs developed at private expense, and to the extent the same and the accompanying documentation are provided to or on behalf of the United States of America, its agencies and/or instrumentalities (collectively, the “Government”), such items are provided under this Agreement with “restricted rights” within the meaning of, and use, duplication and disclosure thereof by the Government is subject to the restrictions set forth in, the Rights In Technical Data and Computer Software clauses as set forth in Sections 252.227-7000 through 252.227-7039 of the Defense Federal Acquisition Regulation Supplement (DFARS), and any amendments and/or additions thereto, as well as in any applicable Restricted Rights clause in the Code of Federal Regulations, or as set forth in the particular department or agency regulations or rules which provide protection equivalent to or greater than the above cited clauses or any successor provisions to any of the foregoing.  You agree that the Software is adequately marked with Restricted Rights and further agree that the Software has been developed entirely at private expense. Contractor/manufacturer is D&E Support Professionals, Inc., doing business as StayLinked Corporation, at 13700 Alton Parkway, Suite 160, Irvine, California.

17. General. Licensor is a California corporation, with its principal offices located at 13700 Alton Parkway, Suite 160, Irvine, California 92618 USA. This License Agreement shall be governed by and interpreted in accordance with the laws of the State of California, USA, without regard to its conflicts of law provisions, unless otherwise agreed upon by the parties in writing.  You must bring any suit, action or proceeding arising under this License Agreement in the courts of Orange County, California, and you specifically consent to the exclusive jurisdiction of such courts. If any provision of this License Agreement is held to be unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will remain in full force and effect. This License Agreement represents the complete agreement concerning this License and the Software, and may be amended only by a writing executed by both parties.  The acceptance of any purchase order placed by you is expressly made conditional upon your assent to the terms set forth herein, and not those in your purchase order.

18. Performance of Related Services.  Implementation of the full functionality of the Software to provide terminal emulation modernization within an End User’s terminal emulation environment may require an End User to pay a third party to perform professional services.  Such services shall only be provided by the End User, or by a StayLinked Certified Modernization Partner.

BY ACCEPTING THE AGREEMENT AND USING STAYLINKED SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, PLEASE CANCEL THE INSTALLATION PROCESS. DO NOT USE STAYLINKED IF YOU DO NOT WANT TO BE BOUND BY THIS AGREEMENT.