SOFTWARE LICENSE AGREEMENT FOR RealLegal iBinder(tm) BY CLICKING THE ACCEPTANCE BUTTON BELOW OR INSTALLING OR USING iBinder(tm), THE INDIVIDUAL OR ENTITY LICENSING iBinder(tm) (THE "LICENSEE") IS CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, LICENSEE MUST CLICK THE BUTTON BELOW INDICATING NON-ACCEPTANCE, AND LICENSEE MUST NOT INSTALL OR USE iBinder(tm). 1. Definition of "Software" The term "Software" shall mean the iBinder(tm) program in object code only and the associated online and electronic documentation. 2. License a. Grant of License. realLegal.com, Inc. ("Licensor") grants Licensee, pursuant to the terms and conditions of this Agreement, a nonexclusive, nontransferable license to use the Software for personal or internal business purposes. This license does not entitle Licensee to receive hard-copy documentation, technical support, telephone assistance, or enhancements, updates or bug fixes for the Software. Licensee shall not customize the Software. b. No Redistribution. Licensee shall not sell, rent, lease, encumber, sublicense, redistribute or transfer rights to the Software. c. Restrictions on Use. Licensee agrees to use the Software only for Licensee's own business. Licensee shall not (i) permit any parent entity, subsidiary, affiliated entity or third party to use the Software, (ii) use the Software in the operation of a service bureau, (iii) modify or create any derivative works of the Software, including translation or localization, or (iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Software. d. Copies. Licensee may install and use the number of copies of the Software which is equal to the number of licenses purchased pursuant to Section 3 below, which copies may be used on stand-alone computers or on a network server used only to install or run the Software on Licensee's other computers over an internal network; provided, however, that if the Software is installed on a network server, the number of concurrent users at any given time shall not exceed the number of licenses purchased by Licensee. In addition, Licensee may make one copy of the Software for exclusive use on either a home or portable computer for each five licenses purchased. e. Modifications, Reverse Engineering. Licensee shall not disassemble, decompile, reverse engineer, or otherwise attempt to derive the source code for the Software, except and only to the extent that applicable law notwithstanding this limitation expressly permits such activity. The Software is licensed as a single product. Its component parts may not be separated for use on more than one computer. f. Material Terms and Conditions. Licensee specifically agrees that each of the terms and conditions of this Section 2 are material and that failure of Licensee to comply with these terms and conditions shall constitute sufficient cause for Licensor to terminate this Agreement. The presence of this Subsection 2.f shall not be relevant in determining the materiality of any other provision or breach of this Agreement by either party. g. This code is not for redistribution in whole or in part, it may not be modified or used in derived works in any way 3. Evaluation Period and License Fee Licensee is authorized to use the Software for a thirty day evaluation period without charge. If Licensee wishes to continue to use the Software after the thirty day evaluation period, Licensee must pay the appropriate license fee for the use of the Software as set forth in pricing information for iBinder(tm) as provided by Licensor. Licensee is responsible for any and all taxes. 4. Ownership Licensee agrees that Licensor owns all intellectual property and proprietary rights, including patent, copyright, trade secret, trademark and other proprietary rights, in and to the Software (including but not limited to any images, photographs, animation, video, audio, music, text and "applets" incorporated into the Software), and any accompanying printed materials, and online or electronic documentation. Licensee acknowledges such ownership and agrees not to take any action to jeopardize, limit or interfere in any manner with Licensor's ownership of or rights with respect to the Software. The Software is protected by copyright laws and international treaty provisions. 5. Confidentiality a. Confidential Information. Licensee agrees that the Software contains proprietary information, including trade secrets, know-how, flow charts, logic diagrams, user manuals and screens, and other confidential information (the "Confidential Information"), that is the exclusive property of Licensor. During the period this Agreement is in effect and at all times after its termination, Licensee and its employees and agents shall maintain the confidentiality of the Confidential Information and shall not sell, license, publish, display, distribute, disclose or otherwise make available the Confidential Information to any third party, nor will it use such Confidential Information except as permitted pursuant to this Agreement. b. Injunctive Relief. There is not an adequate remedy at law for a breach by Licensee of this Section 5, and Licensor will suffer irreparable harm as a result of such a breach. Therefore, if a breach or threatened breach by Licensor of this Section 5 occurs, in addition to any other rights and remedies it may have, Licensor shall be entitled to immediate and permanent injunctive relief restraining Licensee from doing any act in violation of this Agreement, such relief to be without the necessity of posting a bond. Licensee shall pay all costs (including reasonable attorney's fees and expenses) incurred by Licensor in enforcing its rights under this Agreement. c. Survival. This Section 5 shall survive the expiration or termination of this Agreement for any reason. 6. Warranty a. Limited Warranty. Licensor warrants that the Software will perform substantially in accordance with the accompanying online and electronic documentation when used on appropriately configured computers for a period of ninety (90) days from the date of receipt. Some states and jurisdictions do not allow limitations on duration of an implied warranty, so the above limitation may not apply to you. To the extent allowed by applicable law, implied warranties on the Software, if any, are limited to ninety (90) days and one year, respectively. b. Disclaimer of Any Other Warranty. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET THE REQUIREMENTS OF LICENSEE OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT SUBJECT TO THIS DISCLAIMER. THIS LIMITED WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION. c. Licensee's Remedies. Licensor's entire liability and Licensee's exclusive remedy shall be, at Licensor's option, either (a) repair or replacement of the Software that does not meet Licensor's Limited Warranty, or (b) return of the price paid; provided that Licensee provides written notice of the defect and satisfactory evidence of payment of the license fee. This Limited Warranty is void if failure of the Software has resulted from abuse or misapplication. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Outside the United States, neither these remedies nor any product support services offered by Licensor are available without proof of purchase from an authorized international source. Under no circumstances shall the liability of Licensor to Licensee exceed the amounts paid by Licensee to Licensor under this Agreement. 7. Indemnification Licensor shall indemnify and hold harmless Licensee from and against any claims, including reasonable legal fees and expenses, based upon infringement of any United States copyright or patent by the Software, provided that Licensee gives Licensor prompt written notice of any such claim, and full authority and proper and full information and assistance to defend or settle any such claim. If a claim is made or threatened, Licensor may, at its expense and option, either (i) procure the right to continue using the alleged infringing portion of the Software, (ii) replace the Software with non-infringing items which are substantially similar in functionality, or (iii) modify the Software such that it is non-infringing, or if after having made good faith attempts, Licensor is unable to do any of such acts on commercially reasonable terms, (iv) take back the Software and refund the license fee for the Software less depreciation based upon a five-year useful life. Notwithstanding any other provision of this Section, Licensor shall have no liability for any infringement arising from use of the Software in combination with other items, unless Licensor sold, made or specifically recommended or approved them all as a combination, or modification of the Software after delivery, unless either Licensor or an authorized agent of Licensor made or specifically recommended or approved the modification in writing. The liability of Licensor with respect to any and all claims by third parties alleging infringement or violation of patents, copyrights, trademarks, trade secrets or other proprietary rights because of, or in connection with, Software furnished pursuant to this Agreement shall be limited to the specific undertakings contained in this Section. 8. Term and Termination a. Effective Date. The term of this Agreement shall begin upon the delivery of the Software to Licensee, and shall continue until the end of the thirty day evaluation period referenced in Section 3. The term of this Agreement shall terminate at the end of the thirty day evaluation period unless prior to such time, Licensee pays the appropriate license fee, in which case the term of this Agreement shall continue in perpetuity unless and until terminated as provided herein. b. Termination. Each party shall have the right to terminate this Agreement and the license granted herein upon the occurrence of the following events (an "Event of Default"): (i) In the event the other party violates any provision of this Agreement; or (ii) In the event the other party (A) terminates or suspends its business, (B) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, (C) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (D) has would up or liquidated, voluntarily or otherwise. c. Notice and Opportunity to Cure. Upon the occurrence of an Event of Default, a party shall deliver to the defaulting party a Notice of Intent to Terminate that identifies in detail the Event of Default. If the Event of Default remains uncured for thirty (30) days, the party may terminate this Agreement and the license granted herein by delivering to the defaulting party a Notice of Termination that identifies the effective date of the termination. d. Procedure. Immediately upon termination or expiration of this Agreement, Licensee shall delete and destroy all copies of the Software and all of its component parts, and deliver to Licensor a certification, in writing signed by an officer of Licensee, that all copies of the Software have been deleted or destroyed, and its use discontinued. 9. Force Majeure Neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, including any act of God, any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delay in transportation or communications, or any act or failure to act by the other party or such other party's employees, agents or contractors; provided, however, that lack of funds shall not be deemed to be a reason beyond a party's reasonable control. The parties will promptly inform and consult with each other as to any of the above causes which in their judgment may or could be the cause of a delay in the performance of this Agreement. 10. No Consequential Damages TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR OF THE USE OF THE SOFTWARE, REGARDLESS OF THE FORM OF ACTION, INCLUDING CONTRACT, WARRANTY, STRICT LIABILITY, OR NEGLIGENCE, EVEN IF LICENSOR HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE. 11. Arbitration The parties shall settle any controversy arising out of this Agreement by arbitration in Denver, Colorado, in accordance with the rules of the American Arbitration Association. A single arbitrator shall be agreed upon by the parties or, if the parties cannot agree upon an arbitrator within thirty (30) days, then the parties agree that a single arbitrator shall be appointed by the American Arbitration Association. The arbitrator may award attorneys' fees and costs as part of the award. The award of the arbitrator shall be binding and may be entered as a judgment in any court of competent jurisdiction. 12. U.S. Government End-Users The Software was developed at private expense and is a Commercial Item, as that term is defined in 48 CFR 2.101, consisting of Commercial Computer Software and Commercial Computer Software Documentation as such terms are used in 48 CFR 12.212 and 48 CFR 227.7202-1 through 227.7202-4, as applicable. The Software is licensed to U.S. Government end-users only as a Commercial Item and with only those rights granted to all other end-users pursuant to the terms and conditions herein. 13. General Provisions a. Complete Agreement; Amendment. The parties agree that this Agreement is the complete and exclusive statement of the agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral or written, between the parties relating to this Agreement. This Agreement may not be modified, altered or amended except by written instrument duly executed by both parties. b. Waiver. The waiver or failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement. c. Severability. If any provision of this Agreement is invalid, illegal or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible. d. Governing Law. This Agreement and performance hereunder shall be governed by the laws of the State of Colorado, excluding its conflicts of laws provisions, unless the product was acquired outside the United States, in which case local law may apply. e. Attorney's Fees. If any dispute arises under this Agreement, the prevailing party shall be reimbursed by the other party for reasonable legal fees and costs associated therewith. f. Read and Understood. Each party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms. 2693383_1.DOC
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