MASTER SOFTWARE SUBSCRIPTION LICENSE AGREEMENT
UltraEdit, Inc.
10801 North Mopac Expressway,
Building 1, Suite 100
Austin, Texas 78759
BY PROCEEDING TO DOWNLOAD, INSTALL, ACCESS OR USE THE SOFTWARE IN WHICH THIS AGREEMENT IS ELECTRONICALLYEMBEDDED OR BY OBTAINING A LICENSE KEY FOR, OR ACCESS TO, THIS SOFTWARE, YOU HEREBY ACKNOWLEDGE AND AGREE TO BE
BOUND BY THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, THEN CLICK “DO
NOT ACCEPT,” DO NOT INSTALL, ACCESS OR USE THE SOFTWARE AND DELETE THE SOFTWARE FROM YOUR COMPUTER SYSTEM. BY
INSTALLING, ACCESSING, OR USING THE SOFTWARE OR BY CLICKING ON “ACCEPT” YOU ACKNOWLEDGE AND AGREE THAT ON BEHALF
OF YOURSELF AND YOUR EMPLOYER YOU HAVE READ THIS MASTER SUBSCRIPTION SERVICE AGREEMENT CAREFULLY, THAT YOU AND
YOUR EMPLOYER AGREE TO BE BOUND BY THIS AGREEMENT AND THAT IF APPLICABLE YOUR EMPLOYER HAS INFORMED YOU OF THE
RELEVANT PROVISIONS OF THIS AGREEMENT WHICH MAY BE APPLICABLE TO YOU. THIS AGREEMENT, SHALL GOVERN YOURINSTALLATION, ACCESS AND USE OF THE SOFTWARE IN WHICH THIS AGREEMENT IS ELECTRONICALLY EMBEDDED OR REFERENCED IN
AN ORDER FORM. ULTRAEDIT URGES YOU TO CAREFULLY READ THIS AGREEMENT AND ASSESS YOUR USE OF THE SOFTWARE PRIORTO INSTALLING, ACCESSING, OR USING THE SOFTWARE OR MAKING ANY DECISION TO USE OR PURCHASE IT.
THIS MASTER SOFTWARE SUBSCRIPTION LICENSE AGREEMENT, is dated as of the date of, in the case of any Evaluation Software (as defined in
Section 16 below), the date of Customer’s acquisition of a License Key, or in the case of any purchase of a license for use of the Licensed Software (asdefined below) pursuant to which such license is purchased, is between UltraEdit, Inc., a Delaware corporation (“UltraEdit”), and, in the case of any
Evaluation Software, the customer to whom temporary License Keys are delivered or, in the case of any purchase of a license for use of the Licensed
Software, the customer set forth on the purchase order pursuant to which such licensed is purchased (in each case, herein “Customer”), and sets forth
the terms and conditions whereby UltraEdit agrees to provide to Customer for a limited period of time and Customer agrees to acquire from UltraEdit one
or more limited licenses to install, access and use certain software and use certain documentation and maintenance services related thereto, owned or
licensed by UltraEdit or a subsidiary or an affiliate of UltraEdit, as set forth on the Purchase Order (as defined below) delivered in connection with thisAgreement. To the extent any terms or conditions contained in the Purchase Order conflict with the terms or conditions contained in this Agreement, theterms and conditions of the Purchase Order shall supersede only those conflicting terms or conditions contained in this Agreement and only to the minimum
extent necessary to harmonize the terms in such Purchase Order with the terms contained herein. Each Purchase Order shall be executed separately
and, when so executed by both parties and delivered to UltraEdit, shall constitute and be construed as a separate agreement consisting of the terms andconditions contained in such Purchase Order together with the terms of this Agreement. This Agreement specifically supersedes and replaces the terms
and conditions of all prior agreements between UltraEdit and Customer, including, but not limited to, any shrink-wrap agreements, click-wrap agreements
or demo or trial agreements which may accompany or are embedded in UltraEdit’s products or which have been previously in force between the parties.
If Customer is evaluating Evaluation Software (as defined in Section 16 below), then only the terms and conditions of Section 16 below (including those
Sections of this Agreement incorporated therein by reference) will govern Customer’s temporary use of such Evaluation Software (and no other terms ofthis Agreement shall apply to Customer or govern Customer’s use of Evaluation Software) and upon purchase of a commercial license for such Evaluation
Software, this entire Agreement, exclusive of Section 16, shall apply to Customer and govern all use of the Licensed Material (as defined below). In
consideration of the mutual promises and agreements contained herein, the parties hereto also agree as follows:

1.

GENERAL TERMS AND CONDITIONS(d) “Error” means any error, defect or omission that (i) is discovered in
the Licensed Software, (ii) is reproducible and (iii) prevents its
Definitions –operation substantially in accordance with the Licensed(a) “Agreement” means this software subscription agreement, together
Documentation.
with all Exhibits, Schedules, Annexes, Purchase Orders made apart hereof in accordance with the terms of this Agreement and all(e) “Licensed Documentation” means the published user manuals thatamendments, modifications, supplements and alterations thereto
UltraEdit makes generally available for the Licensed Software.
effected in accordance with the terms of this Agreement.
(b)

(c)

“Confidential Information” means all technical and non-technicalinformation in both tangible and intangible form, including, but notlimited to, product design information, software code, technicalinformation, customer information, discounting, cost and pricing
information, financial information and the results derived from or
methodology employed by Customer in conducting any benchmark
testing of the Licensed Software; provided that the term
“Confidential Information” shall not include information which therecipient can show by reasonable proof (i) to have been known by
the recipient prior to the time of disclosure by the disclosing party,(ii) to have become part of the public domain through no fault or
breach of this Agreement by the recipient, (iii) to have been
disclosed to the recipient in good faith by a third party who is notunder any obligation of confidence or secrecy to the disclosing
party at the time such third party discloses the information to therecipient or (iv) to have been compelled to be produced by a courtof competent jurisdiction, provided that the recipient shall first givenotice to the disclosing party of any such request or order of thecourt to give the disclosing party an opportunity to contest or limit
said request or order of the court.
"CPU" means the logic circuitry that responds to and processes the
instructions that run a computer and/or that access or runs the
Licensed Software and each CPU may be comprised of multiple
processing cores, each of which may be configured toindependently act as an individual CPU and shall, when so
configured, be deemed a separate CPU under this definition for
purposes of this Agreement.

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(f)

“Licensed Material” means the Licensed Software and theLicensed Documentation.

(g)“Licensed Software” means the machine-readable object code version of (i) the software specified on each Purchase Order, whether
embedded on disc, tape, internet download site or other media and(ii) all Updates for the Licensed Software that Customer is entitled
to receive in connection with its receipt of Maintenance Services
pursuant to Section 4 of this Agreement.

(h)“License Term” means, with respect to any Licensed Software, theperiod of time or duration of the subscription specified on thePurchase Order pursuant to which Customer subscribed to such
Licensed Software, together with all renewals thereof effected inaccordance with the terms of this Agreement; provided that to theextent no such time period or duration is specified in the Purchase
Order pursuant to which Customer subscribed to such Licensed
Software, the period of time or duration of the subscription shall beone (1) year commencing on the date of such Purchase Order,
together with all renewals thereof effected in accordance with theterms of this Agreement.

(i)“Maintenance Services” means the technical support services
provided by UltraEdit pursuant to Section 4 hereof.

(j)“Purchase Order” means (i) UltraEdit’s standard price quote,purchase order, order form or purchase confirmation (including any
purchase confirmation delivered electronically through an online
store owned or controlled by UltraEdit or its subsidiaries), as such
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document may be amended, supplemented or modified from time
to time in accordance with this Agreement or (ii) any other nonUltraEdit price quote, purchase order, order form or purchaseconfirmation delivered by Customer to UltraEdit but solely to theextent permitted by and delivered in accordance with Section 15.
(k)

(l)

2.

operate up to five (5) instances of such Licensed
Software, but Customer shall not (a) access and use
more than one (1) instance of the Licensed Software atany given time, or (b) access and use such Licensed
Software by more than one (1) User per licensepurchased by Customer. A Personal License may only
be purchased by Customers who are natural-born
individuals;“Update” means any revision, enhancement, improvement or
modification to or programming fix for the Licensed Software or
Licensed Documentation which UltraEdit makes generally
available, incorporates into and makes a part of the Licensed
Software or Licensed Documentation and does not separately priceor market.
“User” means individuals who are authorized by Customer to use
the Licensed Software, for whom licenses to the Licensed Software
have been purchased, and who have been supplied user
identifications and passwords by Customer (or by UltraEdit at
Customer’s request). Users may include but are not limited to
employees, consultants, contractors and agents of Customer, or,subject to the restrictions contained herein, third parties with whom
Customer transacts business.

(ii)

For all Licensed Software made generally available by
UltraEdit on a “per-User” or “per-Seat” basis andlicensed hereunder by Customer on a “per-User” or “perseat” basis, Customer may install and operate (a) no
more than one (1) instance of the Licensed Software perlicense purchased by Customer, and (b) shall not accessand use such Licensed Software by more than one (1)User per license purchased by Customer;(iii)

For all Licensed Software expressly specified in a
Purchase Order as an “Enterprise-License,” Customer
may install, operate and use the Licensed Software on
any number of instances, CPUs, physical servers or
virtual servers and may do so with any number of Usersor seats; provided, that periodically upon UltraEdit’s
written request Customer shall provide UltraEdit with awritten report evidencing actual installation and usage of
the Licensed Software and pay for all excess license
usage in accordance with the terms of UltraEdit’s
standard true-up addendum (the terms of which areincorporated herein by reference upon Customer
purchasing such enterprise license);(iv)

For all Licensed Software made generally available by
UltraEdit on a “concurrent users” basis (each, a“Concurrent License”) and licensed hereunder by
Customer as a Concurrent License, Customer may
install and operate such Licensed Software to be usedconcurrently on different computers by up to theauthorized number of Users for which Customer has
purchased a license; and(v)

For all Licensed Software made generally available by
UltraEdit on an “educational users” and licensed
hereunder by Customer as the “Educational License”,
Customer shall meet the eligibility requirements stated at
http://www.ultraedit.com/register-buy/edudiscounts.html. Customer may install and use the
Educational License only in the country where it isqualified as an educational user.

LICENSE –(a)(b)

Use – Subject to the terms and conditions of this Agreement
including, but not limited to the applicable licensing restrictions set
forth in Section 2(b) below, and subject further to Customer’s fullcompliance herewith and according to the scope, time period andother terms indicated on the applicable Purchase Order delivered
in connection with this Agreement, UltraEdit hereby grants
Customer and Customer hereby accepts from UltraEdit, a limited,
non-exclusive and non-transferable right and license during the
License Term to install the Licensed Software on computer
hardware that is owned or operated by or on behalf of Customer
and to access and use the Licensed Material subscribed to by
Customer in accordance with the applicable restrictions andconditions contained in this Agreement and to copy the Licensed
Material as permitted by this Agreement. Customer’s right to use
the Licensed Material shall extend to use by third parties under
written agreement with Customer to provide outsourcing services
for Customer's own internal business operations; provided, that (i)such third parties have agreed to abide by the terms of thisAgreement and (ii) Customer shall remain primarily liable for allacts and omissions by such third parties. Upon expiration of theLicense Term this Agreement and all rights and licenses granted
under this Agreement shall automatically terminate.
License Usage and Restrictions – Customer acknowledges andagrees that, as between Customer and UltraEdit, UltraEdit or its
subsidiaries owns and shall continue to own all right, title, andinterest in and to the Licensed Material, including associatedintellectual property rights under copyright, trade secret, patent, ortrademark laws. This Agreement does not grant Customer any
ownership interest in or to the Licensed Material, but only a limited
right and license to install and use the Licensed Software and touse the Licensed Materials in accordance with the terms of thisAgreement and each applicable Purchase Order. Customer further
acknowledges and agrees that the license granted hereunder shall
expire automatically upon expiration or termination of the License
Term and the restrictions applicable to Customer’s installation anduse of the License Software will vary according to the type ofLicensed Software purchased by Customer and the type of licensepurchased by Customer. One or more of the restrictions set forth in
this Section 2 may apply to the Licensed Software depending upon
the type of license purchased and the terms contained in theapplicable Purchase Order relating to the Licensed Software.
Customer is encouraged to carefully review all terms andrestrictions contained in this Section 2 and each Purchase Order.
Customer hereby agrees to the following license restrictions andconditions applicable to the Licensed Software as set forth in thePurchase Orders delivered by Customer under this Agreement:(i)UltraEdit, Inc.

For all Licensed Software made generally available by
UltraEdit on a “Personal License” or “Single User
License” basis and licensed hereunder by Customer on
a “Personal License” or “Single User License” basis(each, a “Personal License”), Customer may install and-2-

In no event shall Customer install, operate, use or access the Licensed
Software in contravention of the foregoing restrictions applicable to the
Licensed Software or any other restrictions contained in this Agreement.
(c)Copies & Disaster Recovery -- Customer may make a reasonable
number of back-up archival copies of the Licensed Software. In theevent of any outage that results in the complete failure of thecomputer system upon which Customer has installed the Licensed
Software, Customer’s right to use the Licensed Software shall
include, during the pendency of such outage, the temporary rightto use the Licensed Software in a replacement computing
environment substantially similar to the original computing
environment upon which the Licensed Software was installed
immediately prior to such outage. Customer shall reproduce allconfidentiality and proprietary notices on each of the copies
permitted hereunder and maintain an accurate record of thelocation of each of the copies. Customer shall not otherwise copy
or duplicate the Licensed Material. Customer shall not reverse
engineer, disassemble, translate, modify, adapt, or decompile theLicensed Material or apply any procedure or process to the
Licensed Material in order to ascertain, derive, and/or appropriate
the source code or source listings for the Licensed Software or any
trade secret or other proprietary information contained in the
Licensed Software.

(d)Renewal of License - Upon expiration of the Initial Term and each
Renewal Term, all licenses granted under this Agreement shall
automatically renew for an additional 12-month Renewal Term and
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UltraEdit will invoice Customer at the then-current subscriptionbased list price for such additional License Term unless UltraEdit
or its authorized representatives are notified by Customer in writingat least sixty (60) days prior to the expiration of the Initial Term or
then-current Renewal Term, as applicable, that Customer will notrenew the licenses granted hereunder for another Renewal Term.
(e)Other Services – All licenses and Maintenance Services
purchased by Customer in respect of the Licensed Material shallbe governed by this Agreement, together with the applicable
Purchase Orders delivered hereunder. Unless otherwise agreed
by the parties in writing, all other services purchased by Customer
in respect of the Licensed Software, if any, including
implementation services, training services and professional
services (collectively, “Ancillary Services”), shall be governedsolely by a separate written mutually acceptable services
agreement entered into by the parties or, in the absence of suchagreement, UltraEdit’s standard professional services agreement,
and acceptance of the Licensed Material shall not be contingent
upon Customer’s acceptance of any such Ancillary Services.

additional Maintenance Services terms specified in such Purchase Order.
Maintenance Services shall entitle Customer to receive, at no additional cost,
all Updates. UltraEdit reserves the right to update the Licensed Software atany time without notice to Customer.
5.
PROPRIETARY RIGHTS – Customer shall not acquire, by virtue of thisAgreement, any right or license other than as expressly provided herein.
Customer shall not reproduce the Licensed Material or other confidential or
proprietary information of UltraEdit, except as provided in this Agreement. All
proprietary rights in and to the Licensed Material and all Evaluation Software(as defined in Section 16 below), all derivatives, translations, modifications,
adaptations, improvements, enhancements or developments thereof and all
confidential or proprietary information of UltraEdit, including without limitation,
all rights under and with respect to patents, copyrights, trademarks and rights
under the trade secret laws of any jurisdiction shall remain the sole property
of UltraEdit or its applicable licensor, whether recognized by or perfectedunder applicable local law. Customer shall promptly notify UltraEdit of any
infringement of UltraEdit’s proprietary rights of which it becomes aware.
6.

3.

LIMITED WARRANTIESDELIVERY AND PAYMENT TERMS –(a)

Delivery – All Licensed Material shall be delivered by UltraEdit to
Customer via electronic delivery using a secure internet downloadsite. Ownership of all licenses purchased hereunder and risk ofloss for the related Licensed Materials shall be deemed to havepassed to Customer once UltraEdit has made the Licensed
Material available for download by Customer, notified Customer of
the availability of the Licensed Material for download and provided
Customer with all License Keys necessary for the installation andoperation of the Licensed Software.

(b)

Payment -- Upon delivery of a Purchase Order by Customer,
UltraEdit shall deliver an invoice to Customer specifying thesubscription license fees payable for the Initial Term. Each year
thereafter during the License Term UltraEdit shall invoice Customer
for all renewal subscription fees due in respect of each Renewal
Term. Customer shall pay all license fees specified in each invoice
within thirty (30) days of Customer’s receipt of such invoice. In theevent that Customer elects to pay any fees due hereunder with acredit card, (i) Customer is required to provide UltraEdit with a valid
form of credit card payment and to keep all such credit card
information current and accurate in respect of all renewal fees, (ii)
Customer shall promptly notify UltraEdit if its credit card haschanged or has been declined and (iii) Customer hereby consents
to UltraEdit automatically processing and charging all fees due by
Customer hereunder, including all renewal subscription fees, to thecredit card submitted by Customer. All fees payable by Customer
in respect of any Ancillary Services may be separately invoiced.
Customer’s payment obligation with respect to all license fees
owing hereunder shall be independent of the provision of Ancillary
Services, whether or not such Ancillary Services are separately
invoiced. Any late payment of any amount owing hereunder shallaccrue interest at a rate equal to the lesser of (i) 15% per annumand (ii) the maximum rate permitted by law.

(c)

(a)

Warranty - UltraEdit warrants to Customer that during the License
Term (the “Warranty Period”) the Licensed Software shall perform
substantially as described in the accompanying Licensed
Documentation. UltraEdit does not warrant that (i) the Licensed
Software will satisfy or may be customized to satisfy any of
Customer's requirements or any other particular use or (ii) the useof the Licensed Software will be uninterrupted or error-free. Laws
from time to time in force may imply warranties that cannot be
excluded or can only be excluded to a limited extent. This
Agreement shall be read and construed subject to any suchstatutory provisions.

(b)Remedies – If (i) at any time during a License Term, the Licensed
Software contains Errors which make the Licensed Software
unable to perform substantially as described in the accompanying
Licensed Documentation or (ii) during the Warranty Period,
UltraEdit breaches the warranty set forth in clause (a) above, thenCustomer shall promptly notify UltraEdit of such Error or breachand UltraEdit shall (A) use all commercially reasonable efforts tocorrect such Error or breach within thirty (30) days of notification or(B) provide Customer within thirty (30) days of notification with aplan acceptable to Customer for correcting such Error or breach. Ifsuch Error or breach is not corrected or if an acceptable plan forcorrecting such Error or breach is not established within such thirty(30) day period, UltraEdit shall replace the defective Licensed
Software or, if not practicable, accept the return of the defective
Licensed Software and refund to Customer the pro rata pre-paid
amount for the remaining portion of the Initial Term or Renewal
Term, as applicable. UltraEdit’s obligations under this Section 6(b)shall be waived in the event such Error or breach is due to (I) any
defect in or misconfiguration of the computer hardware upon which
the Licensed Software is installed, (II) improper handling or use of
the software media by Customer, or (III) an unauthorized alteration,
revision or configuration of the Licensed Software or to Customer’s
computer system by Customer or its employees. Customer
acknowledges that this Section 6(b) sets forth Customer's sole andexclusive remedy, and UltraEdit's and its authorized
representatives’ sole and exclusive liability, for any breach of
warranty, Error or failure of the Licensed Software to function
properly.

(c)Disclaimer - EXCEPT AS EXPRESSLY PROVIDED IN THISAGREEMENT, ALL WARRANTIES, REPRESENTATIONS,INDEMNITIES AND GUARANTEES WITH RESPECT TO THE
LICENSED MATERIAL, WHETHER EXPRESS OR IMPLIED,ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTENSTATEMENTS BY ULTRAEDIT OR ITS AUTHORIZEDREPRESENTATIVES OR OTHERWISE (INCLUDING, BUT NOT
LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR PARTICULAR PURPOSE) ARE HEREBYOVERRIDDEN AND DISCLAIMED.

Taxes – All payments referred to in this Agreement are exclusiveof value added tax, sales tax and any other applicable taxes, duties
or imposts which (with the exception only of those based on
UltraEdit’s income) shall also be payable by Customer inaccordance with applicable law.

4.
MAINTENANCE – UltraEdit does not warrant that the Licensed
Software will operate error-free or may be used error-free. With respect to
the Licensed Software specified in each Purchase Order, upon Customer’s
payment of the license fees associated with such Licensed Software, as
specified in each Purchase Order, UltraEdit shall provide Maintenance
Services for such Licensed Software during the License Term in accordancewith this Section 4 and in accordance with the additional Maintenance
Services terms specified in such Purchase Order. Maintenance Services is
included in the subscription license fee and is not separately charged or
invoiced.
Maintenance Services includes problem determinations,reasonable problem resolutions, provisioning of software program temporary
fixes and new releases. Maintenance Services shall also include any
additional Maintenance Services terms specified in the Purchase Orderpursuant to which Customer purchased a license to use the Licensed
Software. Maintenance Services shall be provided in accordance with the
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7.

INDEMNITY(a)

Indemnity – Subject to this Section 7 and Section 8 below,
UltraEdit agrees to indemnify, defend and hold harmless Customer
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from and against all claims, damages, losses, liabilities andexpenses (including, but not limited to, reasonable attorneys’ fees)
arising out of any claim by a third party asserting that the Licensed
Material or any of Customer’s use thereof, infringes upon any third
party's patent, copyright or trademark, provided that (i) Customer
promptly notifies UltraEdit in writing no later than thirty (30) days
after Customer’s notice of any potential claim, (ii) Customer permits
UltraEdit to defend, compromise or settle the claim, and provided
further that no settlement intended to bind Customer shall be madewithout Customer’s prior written authorization and (iii) Customer
gives UltraEdit all available information, reasonable assistance,
and authority to enable UltraEdit to do so.
(b)

(c)

Alternative Remedy - If a claim described in Paragraph 7(a) may
or has been asserted, Customer will permit UltraEdit, at UltraEdit's
option and expense, to (i) procure the right to continue using the
Licensed Material, (ii) replace or modify the Licensed Material toeliminate the infringement while providing functionally equivalent
performance or (iii) accept the return of the Licensed Material andrefund to Customer the pro rata pre-paid amount for the remaining
portion of the Initial Term or Renewal Term, as applicable.
Limitation - UltraEdit shall have no indemnity obligation to
Customer hereunder if the violation or infringement claim resultsfrom (i) a correction or modification of the Licensed Material notprovided by UltraEdit or its authorized representative, (ii) the failure
to promptly install an Update, (iii) the combination of the Licensed
Software with other non-UltraEdit software and (iv) continuing theallegedly infringing activity after receiving written notice of such
infringement claim from UltraEdit.

8.
NO CONSEQUENTIAL DAMAGES - UNDER NO CIRCUMSTANCESWILL ULTRAEDIT OR ITS AUTHORIZED REPRESENTATIVES BE
LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE,
EXEMPLARY OR INCIDENTAL DAMAGES, WHETHER FORESEEABLEOR UNFORESEEABLE, BASED ON CLAIMS BY CUSTOMER OR ANY
THIRD PARTY (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSSOF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF THE
LICENSED MATERIAL, INTERRUPTION IN USE OR AVAILABILITY OF
DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHERASSETS), ARISING OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, BREACH OF ANY INTELLECTUAL
PROPERTY RIGHT, MISREPRESENTATION, NEGLIGENCE, STRICTLIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OFPERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE
LAW REQUIRES SUCH LIABILITY.
IN NO EVENT WILL THE
AGGREGATE LIABILITY INCURRED IN ANY ACTION OR PROCEEDINGBY ULTRAEDIT OR ITS AUTHORIZED REPRESENTATIVE EXCEED THE
TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SPECIFIC
LICENSED SOFTWARE THAT DIRECTLY CAUSED THE DAMAGE.
9.

CONFIDENTIALITY(a)

Confidentiality. – Customer acknowledges that the Licensed
Materials incorporate confidential and proprietary information
developed or acquired by or licensed to UltraEdit and that all resultsof testing of the Licensed Software, whether performed by
Customer or another third party, are confidential. In no event will
Customer publish or disclose the results of any testing or
performance specifications of the Licensed Software without
UltraEdit’s express prior written consent. A party that receives
Confidential Information (the “Receiving Party”) from the otherparty (the “Disclosing Party”) shall not: (i) export or re-export (within
the meaning of US laws or other export control laws or regulations)
any Confidential Information, except in strict compliance with US
laws; (ii) reverse engineer any Confidential Information; or (iii)
disclose or make available the Disclosing Party’s Confidential
Information to any of the Receiving Party’s employees, agents,
contractors or consultants or to any third parties, except those thathave agreed in writing to be bound by terms and conditions
substantially similar to, and no less restrictive with respect tolimitations on use and disclosure, than those contained in thisAgreement and each of which have a “need to know” in order tocarry out the purposes set forth in this Agreement. Each party shalltake all reasonable precautions necessary to safeguard theconfidentiality of all Confidential Information disclosed by the otherparty, including those precautions (A) taken by the disclosing party

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to protect its own Confidential Information and (B) which thedisclosing party or its authorized representative may reasonably
request from time to time. Neither party shall allow the removal or
defacement of any confidentiality or proprietary notice placed on
the Confidential Information disclosed by the disclosing party. The
placement of copyright notices on Confidential Information shall notconstitute publication or otherwise impair their confidential natureof such information.
(b) Disclosure - If an unauthorized use or disclosure of the disclosing
party’s Confidential Information occurs within the recipient party’s
enterprise, the recipient party will immediately notify the disclosing
party or its authorized representative and take, at recipient party’s
expense, all steps which may be available to recover such
Confidential Information and to prevent its subsequent
unauthorized use or dissemination.
10. TERMINATION – Upon 30-days prior written notice to UltraEdit,
Customer may terminate this Agreement; provided, however that Customer
shall not be entitled to a refund (except as expressly set forth in Section 6(b)and 7(b)) of any amounts paid or a release from or cancellation, waiver or
novation of any amount payable, and all such amounts payable or promised
to be paid through the License Term shall automatically accelerate and be
immediately due and payable and shall survive such termination of thisAgreement. If Customer or any of Customer’s employees, consultants,
authorized representatives or permitted third parties breach any term or
condition of this Agreement, UltraEdit may terminate this Agreement, without
judicial or administrative resolution or obligation to refund. This Agreement
will terminate automatically if Customer ceases to do business, becomesinsolvent, goes or is put into receivership or liquidation, passes a resolution
for its winding up (other than for the purpose of reconstruction or
amalgamation) or for any of the foregoing, makes an arrangement for the
benefit of its creditors, enters into bankruptcy, suspension of payments,
moratorium, reorganization or any other proceeding that relates to insolvency
or protection of creditors’ rights or takes or suffers any similar action inconsequence of debt. Upon the termination of this Agreement for any reason
and upon expiration of the License Term, all rights granted to Customer
hereunder will cease, and Customer will promptly (i) purge the Licensed
Software and any related Updates from all of Customer’s computer systems,
storage media and other files, (ii) destroy the Licensed Material and all copies
thereof and (iii) deliver to UltraEdit an affidavit certifying that Customer has
complied with these termination obligations. The provision of Sections 1, 3,
8 through 15 and 17 shall survive the termination of this Agreement.
11. U.S. EXPORT RESTRICTIONS - Customer acknowledges that the
Licensed Materials and all related technical information, documents andmaterials are subject to export controls under the U.S. Export Administration
Regulations. Customer covenants and agrees to comply with all import andexport control regulations of the United States with respect to the Licensed
Material. Customer acknowledges that it may not re-export or divert the
Licensed Material or any related technical information, document or material,or direct derivatives thereof, to any country set forth on the U.S. Departmentof Commerce’s list of State Sponsors of Terrorism (currently, Cuba, Iran,North Korea, and Syria), including any future changes to the government’s
list of State Sponsors of Terrorism.
12. EQUITABLE RELIEF – The parties recognize that Sections 5, 9, 11
and 17(h) are necessary for the protection of the business and goodwill of theparties and are considered by the parties to be reasonable for such purpose.
The parties agree that any breach of such Sections would cause the otherparty substantial and irreparable damage and therefore, in the event of any
such breach, in addition to other remedies which may be available, the nonbreaching party shall have the right to seek specific performance and otherinjunctive and equitable relief in a court of law.
13. LICENSE KEY & USE REPORTING - Customer acknowledges that alicense ID and password owned and controlled by UltraEdit or its subsidiaries(the "License Key") is required to render the Licensed Software operational
on Customer’s computer hardware during the License Term. Once utilized to
install the Licensed Software on Customer’s computer hardware, no otherlicense ID or password will be required for the Licensed Material to operate
on such computer hardware in accordance with the terms and restrictions
contained in this Agreement and no other disabling device will prevent the
Licensed Software from operating on Customer’s computer hardware during
the License Term. Further, Customer acknowledges that the License Key
shall expire upon the expiration of the current License Term and that upon
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such expiration the Licensed Software shall cease to operate unless and until
another License Key is obtained from UltraEdit. Customer shall not attempt
to crack, alter or otherwise derive the License Key. UltraEdit shall promptly(which in the event of any renewal of a License Term shall be prior to
expiration of the current License Term) provide Customer with all necessary
License Keys upon renewal of each License Term and upon any authorizedtransfer of the Licensed Software to any other hardware equipment permitted
under Section 2(b) of this Agreement. UltraEdit reserves the right to gather
data on license usage by Customer for each item of Licensed Software,
including License Key numbers, server IP addresses, email addresses ofusers, domain counts and other information deemed relevant, to ensure that
the Licensed Software is being used in accordance with the terms of thisAgreement. UltraEdit expressly prohibits domain count overrides without priorwritten approval. Customer hereby consents to UltraEdit gathering andprocessing such usage information and agrees not to block, electronically orotherwise, the transmission of data required for compliance with thisAgreement. Any unauthorized use of the Licensed Software by Customer orother use by Customer in violation of the restrictions contained herein shallbe deemed a material breach of this Agreement. In addition to the foregoing,
within ten (10) business days of Customer’s receipt of UltraEdit’s written
request, Customer shall provide to UltraEdit a written report certifying to
UltraEdit the number of licenses for Licensed Software installed, used oraccessed by Customer, the identity of the applicable servers, hardware orcomputers upon which such licenses are installed and, to the extent
applicable, the installation location and location and number of users
accessing such licenses, together with such other information as may berequested by UltraEdit and necessary to confirm Customer’s compliance withthe terms of this Agreement. The auditing, reporting and certification rights
and obligations set forth in this Section 13 shall survive termination of thisAgreement for a period of eighteen months..

16.

TRIAL LICENSE(a)

If Customer has installed Evaluation Software (as defined below)
and Customer is authorized by UltraEdit to evaluate such
Evaluation Software (as defined below), then only the terms andconditions of this Section 16 (including those Sections of thisAgreement incorporated in this Section 16 by reference) will govern
Customer’s temporary use of such Evaluation Software (and noother terms of this Agreement shall apply to Customer or govern
Customer’s use of Evaluation Software) and upon subscription to
a commercial license for such Evaluation Software, this entire
Agreement, exclusive of this Section 16, shall apply to Customer
and govern all use of such commercial Licensed Material.

(b)

UltraEdit is the owner and provider of certain proprietary softwareand documentation that Customer may request to use, from time
to time, on a temporary basis for the sole purpose of testing andevaluating such software prior to purchasing a commercial term
license for such software (“Evaluation Software”). Customer is only
permitted to use Evaluation Software during the period
commencing on the date Customer downloads the Evaluation
Software and ending on the expiration of the trial period set forthon the applicable Purchase Order (including any extensions thereofauthorized by UltraEdit, the “Evaluation Period”).

(c)Evaluation Software is provided to Customer solely for evaluation
purposes for Customer’s own testing and evaluation purposes (an“Evaluation”) and upon download of the Evaluation Software by
Customer, UltraEdit hereby grants Customer a non-transferable,
nonexclusive, limited license to operate and use the Evaluation
Software for such Evaluation during the Evaluation Period.
Customer agrees not to cause or permit the reverse engineering,disassembly, modification, translation or decompilation of any
Evaluation Software. Customer shall not copy the Evaluation
Software, or create or develop any derivative software based upon
the Evaluation Software.

(d)Customer acknowledges that all Evaluation Software incorporates
confidential and proprietary information developed or acquired byor licensed to UltraEdit and that all results of testing of the
Evaluation Software, whether performed by Customer or anotherthird party, are confidential. In no event will Customer publish ordisclose the results of any testing or performance specifications of
the Evaluation Software without UltraEdit’s express prior writtenconsent. Customer shall not remove or deface any confidentiality
or proprietary notice placed on the Evaluation Software. The
placement of copyright notices on Evaluation Software shall notconstitute publication or otherwise impair their confidential natureof such information.

(e)

ALL EVALUATION SOFTWARE PROVIDED BY ULTRAEDIT IS
DELIVERED "AS IS, WHERE IS" AND ULTRAEDIT
SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES OFANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. ULTRAEDIT
DOES NOT WARRANT THAT THE EVALUATION SOFTWAREWILL OPERATE WITHOUT INTERRUPTION OR BE ERROR
FREE. UNDER NO CIRCUMSTANCES WILL ULTRAEDIT OR
ITS AUTHORIZED REPRESENTATIVES BE LIABLE FOR ANYCONSEQUENTIAL,
INDIRECT,SPECIAL,
PUNITIVE,
EXEMPLARY OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE OR WHETHER BASED ON
CLAIMS BY CUSTOMER OR ANY THIRD PARTY, ARISING OUT
OF OR RELATED TO CUSTOMER’S USE OF EVALUATIONSOFTWARE. IN NO EVENT WILL THE AGGREGATE LIABILITYOF ULTRAEDIT OR ITS AUTHORIZED REPRESENTATIVESINCURRED IN ANY ACTION OR PROCEEDING RELATING TOCUSTOMER’S USE OF EVALUATION SOFTWARE EXCEEDONE HUNDRED DOLLARS.

(f)

The Evaluation and the evaluation license granted under thisSection 16 shall automatically terminate immediately upon theearliest of (i) the expiration of the Evaluation Period, (ii) the dateupon which Customer purchases a commercial license for such
Evaluation Software and (iii) the date upon which either party
notifies the other party of its termination of the Evaluation. Upon

14. ENFORCEABILITY - If for any reason a court of competent jurisdiction
finds any provision of this Agreement, or portion thereof, to be unenforceable,
void, invalid or illegal, that provision shall be enforced to the maximum extent
permissible so as to effect the intent of the parties, and the remainder of thisAgreement shall continue in full force and effect.
15.

ENTIRE AGREEMENT(a)

Customer acknowledges that it has read this Agreement,
understands it and agrees to be bound by its terms. Customer andUltraEdit further agree that, subject to clause (b) below, thisAgreement, together with all Purchase Orders delivered inconnection herewith and all exhibits, schedules and annexes
hereto, is the complete and exclusive statement of the agreement
between Customer and UltraEdit and supersedes all proposals,
oral or written, and all other communications between the parties
relating to the subject matter of this Agreement, including any
shrink-wrap agreements, click-wrap agreements or demo or trial
agreements which may accompany the Licensed Material or which
may have been previously in force between the parties. Subject toclause (b) below, this Agreement may not be amended, modified,
supplemented or altered except by a written agreement that issigned by both parties.

(b) UNDER NO CIRCUMSTANCES MAY THE TERMS OF THISAGREEMENT OR ANY ULTRAEDIT PURCHASE ORDER BE
AMENDED,
MODIFIED,SUPPLEMENTED,ALTERED,
SUPERSEDED OR REPLACED BY ANY NON-ULTRAEDITINVOICE OR NON-ULTRAEDIT PURCHASE ORDER OROTHER SIMILAR INSTRUMENT DELIVERED BY CUSTOMERTO ULTRAEDIT.
EACH PARTY ACKNOWLEDGES AND
AGREES THAT, AS A CONVENIENCE TO CUSTOMER AND
ONLY FOR CUSTOMER’S INTERNAL ACCOUNTINGPROCEDURES, CUSTOMER MAY DELIVER TO ULTRAEDIT ACUSTOMER INVOICE OR CUSTOMER PURCHASE ORDER OROTHER SIMILAR DOCUMENT FOR ANY TRANSACTIONCONTEMPLATED HEREUNDER AND THAT NO ACTION BYULTRAEDIT, INCLUDING ULTRAEDIT’S DELIVERY OF ANY
LICENSED MATERIALS OR ACCEPTANCE OF PAYMENT,SHALL BE DEEMED TO BE ACCEPTANCE OF ANY OF THE
TERMS OR CONDITIONS CONTAINED IN SUCH CUSTOMERINVOICE OR CUSTOMER PURCHASE ORDER OR OTHERSIMILAR INSTRUMENT AND SUCH TERMS AND CONDITIONSSHALL BE VOID AND OF NO FORCE OR EFFECT, UNLESSACCEPTED BY ULTRAEDIT PURSUANT TO A WRITTENINSTRUMENT SIGNED BY BOTH PARTIES.
UltraEdit, Inc.

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expiration of the Evaluation Period or the Evaluation, Customer
shall cease using and shall uninstall and destroy the Evaluation
Software unless Customer has purchased a commercial license forsuch Evaluation Software on or prior to such expiration.

OF TEXAS, WITHOUT GIVING EFFECT TO ANY CHOICE OF
LAW RULES.
ULTRAEDIT AND CUSTOMER HEREBYIRREVOCABLY AGREE ON BEHALF OF THEMSELVES THATTHE SOLE AND EXCLUSIVE JURISDICTION AND VENUE FOR
ANY LITIGATION ARISING FROM OR RELATING TO THISAGREEMENT OR THE SUBJECT MATTER HEREOF SHALL BE
IN AN APPROPRIATE FEDERAL OR STATE COURT IN THE
STATE OF TEXAS LOCATED IN TRAVIS COUNTY.

Sections 1, 5, 8, 11, 14, 15 and 17(a) through 17(g) of this Agreement shallbe deemed incorporated by this reference in this Section 16 and the
Evaluation license granted under this Section 16.
17.

(e)

Unless otherwise specified herein, the rights and remedies of
UltraEdit set forth in this Agreement are not exclusive and are in
addition to any other rights and remedies available to it at law or inequity. In the event of Customer’s failure to pay any fees set forthin this Agreement, UltraEdit shall be entitled to recover its costs
and expenses, including but not limited to reasonable attorneys’
fees, incurred in any collection efforts or legal action.

(f)This Agreement is not intended to be nor shall it be construed as a
joint venture, association, partnership or other form of businessorganization or agency relationship.

(g)

Headings used in this Agreement are for reference purposes onlyand shall not be used to modify the meaning of the terms andconditions of this Agreement. This Agreement may be executed incounterparts, all of which shall constitute one single agreement
between the parties hereto.

(h)

In consideration of the mutual covenants contained herein,
including the rights and licenses granted to Customer herein, theparties hereto do hereby agree that for a period of two years
following Customer’s most recent purchase of any licenses orservices, including Maintenance Service, from UltraEdit or its
authorized representative, Customer shall not solicit, induce, hire,
engage, or attempt to hire or engage any employee of UltraEdit, orin any other way interfere with UltraEdit’s contractual or
employment relations with any of its employees, nor will Customer
hire or engage or attempt to hire or engage any individual who wasan employee of UltraEdit at any time during such two-year period.

MISCELLANEOUS
(a)

(b)

(c)

Customer shall not assign, delegate or otherwise transfer thisAgreement or any of its rights or obligations hereunder to any otherperson or entity, whether by contract, merger or by operation of thelaw, without UltraEdit’s prior written consent. In the event of any
merger of Customer or a sale of substantially all of the assets ofCustomer in which Customer is not the surviving entity, Customer
may assign or transfer any licenses granted under this Agreement;
provided, that Customer provides UltraEdit with written notice ofsuch transfer within thirty days of such merger or sale. Any
assignment or delegation in breach of this Section 17(a) shall be
void. This Agreement shall be binding upon the parties hereto andshall inure to the benefit of the parties hereto and their respective
permitted successors and assigns.
All notices or approvals required or permitted under this Agreement
must be given in writing and delivered to the appropriate party at
the address set forth in this Agreement or in any Purchase Orderdelivered in connection with this Agreement.
The waiver of compliance with or breach of any term or conditionof this Agreement or the failure of a party to exercise any rightunder this Agreement shall in no event constitute a waiver as toany other failure to comply or breach, whether similar or dissimilarin nature, or prevent the exercise of any right under this Agreement.

(d) THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE[END OF AGREEMENT]

UltraEdit, Inc.

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