This Software License Agreement (“Software License”) is subject to all terms, restrictions and obligations set forth in and hereby incorporated as part of this Agreement entered into between EDUCATION MANAGEMENT SOLUTIONS, LLC and ___________________________________, dated _______ (the “Agreement”). Capitalized terms in this Software License shall have the meanings set forth in the Agreement unless otherwise expressly defined herein. 1. Restrictions. a. DISTRIBUTOR/CUSTOMER shall not make use of the Software in any way contrary to the terms of the Agreement, including but not limited to those terms defining Ownership and Proprietary Rights of the Software. Without limiting the preceding: DISTRIBUTOR/CUSTOMER shall not modify, copy, duplicate, reproduce, license or sublicense the Software, or transfer or convey the Software or any right in the Software to any third party without the prior written consent of EMS; provided, however, DISTRIBUTOR/CUSTOMER may make one copy of the Software for backup or archival purposes. DISTRIBUTOR/CUSTOMER shall use the Software in object code format only (or, if a portion of the Software is not in a computer language that is typically compiled, then in the form such portion is delivered by EMS). DISTRIBUTOR/CUSTOMER shall not translate, modify, adapt, decompile, disassemble, reverse engineer, or otherwise reproduce, directly or indirectly, the Software. DISTRIBUTOR/CUSTOMER shall not create or permit or direct others to create derivative works from the Software. DISTRIBUTOR/CUSTOMER shall not permit any persons or entities other than its employees, faculty, authorized third party contractors and students of the DISTRIBUTOR/CUSTOMER to access, view or use the Software. b. Except for the limited license rights granted by EMS to DISTRIBUTOR/CUSTOMER under the Agreement, all trademarks, service marks, patents, copyrights, trade secrets, and other intellectual property and proprietary rights in and to the Software are and shall remain the exclusive property of EMS and its licensors. DISTRIBUTOR/CUSTOMER shall not take any actions that may jeopardize EMS’ or its licensors’ proprietary rights. DISTRIBUTOR/CUSTOMER shall not remove, modify or obscure any proprietary notice contained in the Software or any related materials and any distribution of the Software or such materials permitted under the Agreement shall retain such proprietary notices. 2. Warranty of Title; Intellectual Property Infringement. EMS hereby represents and warrants to DISTRIBUTOR/CUSTOMER that EMS is the owner of the Software or otherwise has the right to grant to DISTRIBUTOR/CUSTOMER the rights set forth in the Agreement. In the event of any allegation against EMS of the infringement of the intellectual property rights of any third party based solely upon the Software as distributed or upon DISTRIBUTOR/CUSTOMER’s use of the Software in its intended manner, EMS shall, at its option, either: (i) procure, at EMS’ expense, the right to use the Software, or (ii) replace or modify the Software or any part thereof that is in breach in such a way that does not substantially diminish its functionality. If the foregoing options are not available to EMS on commercially reasonable terms, EMS may require DISTRIBUTOR/CUSTOMER to cease using the infringing portion of the Software and EMS shall refund to DISTRIBUTOR/CUSTOMER the portion of the Price attributable to such portion. The foregoing shall be DISTRIBUTOR/CUSTOMER’s sole remedy in the event of breach or the representation and warranty of this Paragraph. 3. Warranty of Functionality. a. EMS warrants that the Software will perform in all material respects in accordance with, and will provide the features and functions in accordance with the specifications set forth in the Proposal and Statement of Work, and any other specifications provided by EMS to DISTRIBUTOR/CUSTOMER in writing, and that the Software will provide the features and functions described therein. EMS does not warrant that the Software will be uninterrupted in its operation, or error free. b. This warranty shall not apply to the Software if modified by any person, other than EMS or a person authorized by EMS, or if used improperly, in an unintended manner or combination, or on an operating environment not approved by EMS in writing. c. The DISTRIBUTOR/CUSTOMER acknowledges that the certain software included in the Statement of Work is provided by third parties and EMS makes no warranties either expressed or implied with respect to such software. 4. Software Maintenance and Enhancement. a. For as long as DISTRIBUTOR/CUSTOMER continues to purchase TotalCAREiQ services (Appendix E), EMS shall provide to DISTRIBUTOR/CUSTOMER any Updates to the Software, but shall not include any Upgrades to the Software, as those terms are defined in the Software Support and Maintenance Agreement (Appendix E). b. Software support may include as set forth in a separate TotalCAREiQ Agreement (Appendix E): (a) providing telephone support to the DISTRIBUTOR/CUSTOMER’s users during regular business hours; (b) correcting bugs and other nonconformities in the Software so that it conforms to the documentation provided by EMS; and (c) providing the DISTRIBUTOR/CUSTOMER with patches or fixes. 5. WARRANTY DISCLAIMER. EMS’ WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 6. Limitation of Liability. In addition to any and all limitations set forth in the Agreement, DISTRIBUTOR/CUSTOMER agrees that EMS shall bear no liability for the loss of any customer data. The DISTRIBUTOR/CUSTOMER shall be solely responsible for maintaining backup data necessary to replace DISTRIBUTOR/CUSTOMER’s data that is lost or damaged from any cause.