Avtex Intellectual Property Terms of Use Agreement This Terms of Use Agreement (the “Agreement”) is made by and between the person or Client signing this Agreement, clicking “OK” or “I Accept” when prompted to do so or installing or using the software accompanying this Agreement (“You,” “you” or “your”) and Avtex and governs your use of software made available to you by Avtex (as well as any upgrades, modified versions, updates, additions and copies thereof) (“Software”) and any related explanatory materials (“Documentation”). LICENSE GRANT Subject to the terms and conditions of this Agreement (including the conditions set forth in the “Restrictions” section below), Avtex hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable license to use the Software and the Documentation within the agreed upon geographic location. You may copy the Software and the Documentation for back-up and test purposes, provided that the original and each copy remain in your possession. SUPPORT Avtex will provide limited best effort e-mail technical support to you. Should you desire enhancements to Software, corresponding services, and/or dedicated support, Avtex will provide these services through a separate agreement. RESTRICTIONS The Software and the Documentation are proprietary to Avtex and Avtex remains the owner of all rights, title and interests in and to the Software and the Documentation, including all intellectual property rights in and to any of the foregoing. You will not and will not authorize or permit any third party to: (a) access, view, use, copy, modify or prepare derivative works of any part of the Software or the Documentation, except as expressly authorized in this Agreement; (b) resell, distribute, rent, lease, sublicense, lend, give, market, commercialize, assign or otherwise transfer rights or usage of all or any part of the Software or Documentation to any third party, except as expressly authorized in this Agreement; (c) reverse engineer, translate, disassemble, decompile, disable security measures or cause or allow discovery of the source code (except to the extent that such a restriction would be a breach of applicable law) for any part of the Software or attempt to do so, except as expressly authorized in this Agreement; (d) remove, obscure or alter the copyright, trademark or other proprietary notices affixed to or contained in the Software or the Documentation; or (e) place the Software onto a server so that it is accessible via a public network such as the Internet. TRANSFERS You may not assign or otherwise transfer this Agreement or any other rights or obligations herein without the express written consent of Avtex, except that you may assign this Agreement to an entity purchasing all or substantially all of your assets or voting securities so long as the acquiring party has reasonably complied with all terms and conditions of this Agreement and the assigning party provides prompt written notice to Avtex of such assignment. This Agreement will be binding upon and inure to the benefit of each of the parties hereto, their successors and assigns. LIMITED WARRANTY EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SOFTWARE AND THE DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AVTEX, ITS AFFILIATES, ITS LICENSORS AND ITS SUPPLIERS MAKE NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR ARISING BY COURSE OF DEALING, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE, IN CONNECTION WITH THE SOFTWARE, THE DOCUMENTATION OR ANY RELATED PRODUCTS AND SOLUTIONS PROVIDED TO YOU HEREUNDER, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. FURTHER, AVTEX, ITS AFFILIATES, ITS LICENSORS AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE OR THE DOCUMENTATION. NO EMPLOYEE, AGENT, DEALER OR DISTRIBUTOR OF AVTEX IS AUTHORIZED TO MODIFY THIS LIMITED WARRANTY, NOR TO MAKE ANY ADDITIONAL WARRANTIES WITH RESPECT TO THE SOFTWARE OR THE DOCUMENTATION. YOUR SOLE WARRANTY WITH RESPECT TO ANY THIRD PARTY SOFTWARE OR PRODUCTS IS THE WARRANTY RECEIVED FROM SUCH THIRD PARTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AVTEX MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THIRD PARTY SOFTWARE OR PRODUCTS. GENERAL TERMS IN NO EVENT WILL AVTEX, ITS AFFILIATES, ITS LICENSORS OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING PROCUREMENT OF SUBSTITUTE GOODS OR SOLUTIONS, LOSS OF USE, LOSS OF DATA, LOST PROFITS, LOST SAVINGS OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY FROM THE USE OF OR INABILITY TO USE THIS SOFTWARE OR THE DOCUMENTATION, EVEN IF AVTEX, ITS AFFILIATES, ITS LICENSORS OR ITS SUPPLIERS HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGE, AND WITHOUT REGARD TO THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES. AVTEX’S, ITS AFFILIATES’ ITS LICENSORS’ AND ITS SUPPLIERS’ MAXIMUM LIABILITY FOR ANY DAMAGES UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, WILL BE LIMITED TO THE AMOUNTS ACTUALLY PAID OR PAYABLE BY YOU TO AVTEX IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. YOU ACKNOWLEDGE THAT AVTEX COULD NOT MAKE THE SOFTWARE AVAILABLE TO YOU ON THE TERMS SET FORTH IN THIS AGREEMENT IF AVTEX’S LIABILITY AND THAT OF THIRD PARTIES WERE NOT LIMITED AS SET FORTH IN THIS AGREEMENT. THE FOREGOING EXCLUSIONS WILL NOT APPLY TO ANY LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY LIABILITY OF AVTEX WHICH CANNOT BE EXCLUDED UNDER APPLICABLE LAW. You acknowledge and agree that Avtex may use your name and logo in customer lists for marketing purposes. This Agreement will be governed under the laws of the State of Minnesota, without regard to its conflicts of law provisions. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This Agreement may not be amended except by a written agreement executed by both parties. The failure of either party at any time to require performance of any provision of this Agreement or to exercise any right provided for herein will not be deemed a waiver of such provision or such right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement will remain in full force and effect. As used in this Agreement, the word “or” is not exclusive and the words “including” or “include” are not limiting.