Software License Agreement IMPORTANT - READ CAREFULLY: This is a legal agreement between you and Blue Lance, Inc. by which certain software (and accompanying materials) are being licensed, not sold, to you. By clicking the 'I accept the terms of the license agreement' icon, you agree to the terms and conditions of this Agreement. If you do not agree to these terms and conditions, you are not licensed to use the Software; therefore, you must not install the software and you must promptly return the Software (including all accompanying materials) to Blue Lance, Inc. If you return this software within ten (10) days, together with proof of payment, to the place of purchase, you will receive a full refund of any license fee paid for this software. This Software License Agreement ('Agreement') is entered into by and between BLUE LANCE, INC. ('Blue Lance') and the entity identified in the Blue Lance Invoice as the licensee of the software ('Licensee'). 1. DEFINITIONS. 'Licensed Capacity' is the maximum number of (i) servers, workstations, or other devices upon which the Software may be installed and used at any time, and/or (ii) users that may use (and/or be monitored by) the Software at any time, all as specified in the Blue Lance Invoice. 'Software' means the object code of the Blue Lance software specified on the Blue Lance Invoice and its technical documentation, including all items provided under Support. 'Blue Lance Invoice' means Blue Lance’s Invoice issued in connection with this Agreement. The invoice will specify the parameters of the license granted under this agreement, including, as appropriate, the Software licensed under this Agreement, whether the license is a 'Subscription License' or a 'Perpetual License', the License Fees due under this Agreement, the Licensed Capacity, and any other conditions related to this Agreement. The Blue Lance Invoice is incorporated herein for all purposes. 2. GRANT OF LICENSE. Subject to the terms and conditions of the this Agreement and the Blue Lance Invoice, and in consideration of payment by Licensee of the License Fees, Blue Lance hereby grants to the Licensee a non-exclusive, non-transferable, limited license to use the Software, but only up to the Licensed Capacity. 3. RESTRICTIONS. The Software may be used by Licensee only for the legitimate, day-to-day, internal business purposes of Licensee. Licensee agrees not to (i) allow the use of Software by any person, corporation, or business entity, including subsidiaries, affiliates, or entities controlled by Licensee, other than as expressly licensed herein, (ii) cause or permit reverse engineering or decompilation of the Software, (iii) remove any identification markings, including but not limited to copyright notices and trademarks, from the Software, or (iv) make any modification, enhancement, or incorporate the Software, or any portions thereof, into or with any other software. Licensee may use the Software only as authorized by Blue Lance for its own internal purposes, as set forth herein and in the documentation and will not use the Software to provide services to third parties. Any server or workstations on which the Software is installed must be owned or under the sole 713.255.4800 . Fax 713.650.0090 . www.BlueLance.com . 410 Pierce . Suite 309 . Houston, Texas 77002 control of Licensee. Licensee may make one (1) copy of the Software in machine-readable form for temporary, emergency back-up purposes for disaster recovery purposes so long as Blue Lance’s trademark remains affixed to the copy. Such copy shall remain the property of Blue Lance. Licensee shall not make or permit the making of copies of the Software except as authorized by this Agreement or as otherwise authorized in writing by Blue Lance. All rights not expressly granted to Licensee are reserved by Blue Lance. 4. FORM OF LICENSE. The Software is licensed (i) for execution on only the number of servers and/or the number of workstations, and/or (ii) for use by (and/or to monitor) only the number of users, as specified in the Blue Lance Invoice. If the Blue Lance Invoice provides for use on multiple servers and or workstations, the Software may be transferred without Blue Lance’s permission from server to server, or from workstation to workstation, as the case may be, so long as the Software is installed on up to only the maximum number of servers and workstations specified in the Blue Lance Invoice at a time. In the event Licensee subsequently purchases one or more additional server, workstation and/or user licenses for the use of the Software under this Agreement, Blue Lance’s subsequent Invoice will specify the number of additional server(s) workstation(s) and/or user license(s), will reference this Agreement, and the use of the Software on such servers, workstations, and/or by (and/or monitoring) such users will be governed by this Agreement. A license to use the Software on a server authorizes the installation and use of the Software on a single server, regardless of the number of workstations attached to that server. Such a license does not, however, include the right to install or use the Software on the attached workstations. Workstation licenses are required to install and/or use the Software on individual workstations. Blue Lance will provide software security key(s) to allow Licensee to use the Software as provided in the Blue Lance Invoice (i.e., to allow the use of the Software on the number or servers and/or workstations, and/or by (and/or monitoring) the number of users specified). 5. LICENSE FEES. In consideration of the License granted herein, Licensee shall pay Blue Lance the fees set forth on the Blue Lance Invoice, together will all applicable sales, value-added, duty, use, excise, property, withholding and similar taxes and assessments. Such sums shall be due on receipt by Licensee of the applicable invoice and shall be paid by Licensee no later than thirty (30) days from the date of invoice. All past due sums owing from Licensee to Blue Lance pursuant to this Agreement shall bear interest from the date such sums become past due until the date paid at a rate equal to the lesser of one and one half percent (1- 1/2%) per month or the highest rate of interest permitted by applicable law. 6. TERM. For Subscription Licenses, this license shall have a term of one (1) year, commencing on the date Licensee acknowledges and accepts this Agreement by clicking the 'I accept the terms of the license agreement' icon. Thereafter, the term shall renew for successive terms of one (1) year each at Blue Lance’s then current subscription rates unless either party gives written notice to the other of its intention not to renew at least sixty (60) days prior to the commencement of the next term. 713.255.4800 . Fax 713.650.0090 . www.BlueLance.com . 410 Pierce . Suite 309 . Houston, Texas 77002 Page 2 of 6 For Perpetual Licenses, this license shall commence on the date Licensee acknowledges and accepts this Agreement by clicking the 'Yes, I Accept All the Terms of this Agreement' icon, and shall continue until terminated by Licensee or Blue Lance as provided herein. The person, by clicking the 'I accept the terms of the license agreement' icon, affirms that he/she is an authorized representative of Licensee and has the authority to bind Licensee to the terms and conditions of this Agreement. 7. TERMINATION. Licensee may terminate this license at any time by returning or destroying the Software as described below; however, Licensee will not be entitled to a refund of any portion of the Licensee Fee upon such termination. Blue Lance may terminate the license (i) if Licensee fails to pay any applicable fees within 30 days after receipt of written notice of non-payment, and/or (ii) if Licensee commits any other material breach of this Agreement and fails to correct the breach within 30 days after notice in writing of such breach. Upon termination of this Agreement for any reason, Licensee agrees to immediately uninstall and stop using the Software, and upon Blue Lance’s request, Licensee will immediately return the Software to Blue Lance, together with all related documentation and copies, or destroy the Software, together with the documentation and copies, and certify to Blue Lance its destruction in writing. If, for any reason, you are dissatisfied with the Software, return it together with all documentation, packaging, and your proof of purchase, to the place of purchase within thirty (30) days of the date of purchase for a full refund. 8. SUPPORT SERVICE. Blue Lance will provide support service with respect to the Software in accordance with Blue Lance’s then current Software Support Service Policy. Blue Lance’s current Software Support Service Policy is attached hereto as Exhibit A. Blue Lance reserves the right to modify its Software Support Service Policy from time to time in its sole discretion. Support includes the delivery of revisions, upgrades, updates and enhancements to the Software, which Blue Lance may provide to Licensee from time to time in its sole discretion. In order to receive Support, Licensee must make all remote support connections to each server and/or workstation, at its expense, and as requested by Blue Lance. Blue Lance is only responsible for providing Support as described in this Agreement for the most current version of the Software provided by Blue Lance to Licensee. 9. LIMITED WARRANTY; LIMITATION OF LIABILITY. Blue Lance warrants the media on which the Software is furnished to be free from defects in materials and workmanship under normal use for a period of one (1) year from the date of purchase. If any such media is defective, Licensee must return the media to Blue Lance within said one-year period, and Blue Lance will, in Blue Lance’s sole discretion, repair or replace such media, or refund any license fee paid by Licensee. BLUE LANCE’S SOLE RESPONSIBILITY AND LIABILITY TO LICENSEE SHALL BE, IN BLUE LANCE’S SOLE DISCRETION, TO REPLACE ANY DEFECTIVE MEDIA WHICH LICENSEE RETURNS TO BLUE LANCE WITHIN THE WARRANTY PERIOD OR TO REFUND ANY LICENSE FEE PAID BY LICENSEE FOR THE SOFTWARE. 713.255.4800 . Fax 713.650.0090 . www.BlueLance.com . 410 Pierce . Suite 309 . Houston, Texas 77002 Page 3 of 6 10. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9, THE SOFTWARE AND RELATED DOCUMENTATION ARE PROVIDED 'AS IS', AND BLUE LANCE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR BY OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR GOOD AND WORKMANLIKE MANNER. BLUE LANCE DOES NOT WARRANT THAT THE THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE SHALL BE UNINTERRUPTED OR ERROR-FREE. 11. DISCLAIMER OF DAMAGES. IN NO EVENT SHALL BLUE LANCE BE RESPONSIBLE OR HELD LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LIABILITY FOR LOSS OF PROFITS OR BUSINESS INTERRUPTION HOWEVER THE SAME MAY BE CAUSED, INCLUDING THE FAULT OR NEGLIGENCE OF BLUE LANCE WITHOUT REGARD TO, AND EVEN IF, BLUE LANCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF DAMAGES SHALL APPLY WITHOUT REGARD TO THE OTHER PROVISIONS OF THIS AGREEMENT. 12. LIMITATION OF LIABILITY. IN NO EVENT SHALL THE DAMAGES RECOVERED BY LICENSEE AGAINST BLUE LANCE IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT EXCEED IN THE AGGREGATE FOR ALL EVENTS THE AMOUNT PAID BY LICENSEE TO BLUE LANCE UNDER THIS AGREEMENT DURING THE TWENTY- FOUR MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. 13. TRIAL LICENSE. In addition to the Software licensed under this Agreement, Blue Lance may make other software available to Licensee on a trial basis. Licensee may only operate such software for the purpose of evaluating whether Licensee will acquire a license to the software for a fee, and may not under any circumstances use the software in a production environment. Such software is provided 'AS IS,' 'WITH ALL FAULTS' and without any warranty. Blue Lance may terminate a trial license for its convenience upon notice to Licensee. 14. LICENSEE’S RESPONSIBILITY. Licensee assumes all responsibility for the selection of the Software to achieve Licensee’s intended results, and for the installation, use, and results obtained there from. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 9 ABOVE, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THIS SOFTWARE IS THE RESPONSIBILITY OF THE LICENSEE AND, SHOULD THE SOFTWARE PROVE DEFECTIVE IN ANY WAY WHATSOEVER, THE LICENSEE SHALL ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. 15. BLUE LANCE PROPRIETARY PROPERTY. Licensee acknowledges and agrees that the Software, the related documentation, other software, and all trademarks, trade names, copyrights, updates, and enhancements developed and/or provided by Blue Lance in connection with this Agreement (collectively, the 'Blue Lance Proprietary Property') are proprietary to Blue Lance and shall remain the sole property of Blue Lance. Licensee shall have no ownership interest in the Blue Lance Proprietary Property or other rights therewith. Licensee agrees to keep the Blue Lance Proprietary Property confidential at all times. Upon request from Blue Lance from time to time, and at the expense of Blue Lance, Licensee will execute any assignment, document or take any further action as may be reasonably necessary to evidence or perfect the proprietary rights of Blue Lance in the Blue Lance Proprietary Property. 713.255.4800 . Fax 713.650.0090 . www.BlueLance.com . 410 Pierce . Suite 309 . Houston, Texas 77002 Page 4 of 6 16. AUDIT. If requested by Blue Lance, from time to time, Licensee agrees to deliver to Blue Lance periodic written reports, whether generated manually or electronically, specifying Licensee’s use of the Software, including without limitation compliance with the Licensed Capacity. Blue Lance may also perform, from time to time, an audit of Licensee’s use of the Software. Licensee acknowledges that Blue Lance has remote access to Licensee’s computer system in order to provide Support under this Agreement. Licensee hereby authorizes Blue Lance, with or without notice to Licensee, to remotely access Licensee’s computer system, from time to time and/or on a continuous basis, to monitor and audit Licensee’s use of the Software, including, without limitation, compliance with the Licensed Capacity. In addition, Blue Lance may, from time to time, upon prior written notice to Licensee conduct an audit of Licensee’s use of the Software at Licensee’s facilities during normal business hours. Licensee agrees to cooperate during any audit and to provide reasonable access to information and systems. If an audit reveals that Licensee has underpaid fees, Licensee agrees to pay such underpaid fees. If the underpaid fees exceed 5% of the fees paid, then Licensee agrees to also pay Blue Lance’s reasonable costs of conducting the audit. 17. GOVERNMENT RESTRICTED RIGHTS. The Software under this Agreement is "commercial computer software" as that term is described in 48 C.F.R. 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulations ('FAR') and its successors. If acquired by or on behalf of any agency within the Department of Defense ('DOD'), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors. If acquired by or on behalf of a state, local or foreign government, such government or its agent acquires this commercial computer software and/or commercial computer software documentation on a 'restricted rights' basis as contemplated by this section to the full extent permitted by applicable law. 18. ASSIGNMENT. Licensee may not, directly or indirectly, by operation of law (including by merger, acquisition or change of control of Licensee) or otherwise, assign, lease, sublease, sublicense or otherwise transfer or cause to be transferred any of its rights under this Agreement or any interest therein, without the prior written consent of Blue Lance. Any assignment made in contravention of this Section 17 shall be null and void for all purposes. 19. SURVIVAL OF OBLIGATIONS. Except for Section 2 ('GRANT OF LICENSE') and except as otherwise expressly provided for herein, the terms of this Agreement shall survive the expiration or termination of this Agreement. 20. SEVERABILITY. The illegality, invalidity, or unenforceability of any one or more of the provisions of this Agreement shall not affect the remaining portions of this Agreement which shall continue in full force and effect for the full term hereof. 21. APPLICABLE LAW. This Agreement shall be interpreted, construed and enforced in accordance with the laws of the State of Texas, without regard to its conflicts of law principles. The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the 1980 U.N. Convention on 713.255.4800 . Fax 713.650.0090 . www.BlueLance.com . 410 Pierce . Suite 309 . Houston, Texas 77002 Page 5 of 6 Contracts for the International Sale of Goods. Any suit or proceeding hereunder shall be brought EXCLUSIVELY in Harris County, Texas, and each of the parties consents to the personal jurisdiction of the courts, state and federal, located therein. Each party agrees to waive any objection that the state or federal courts of Harris County, Texas, are an inconvenient forum. 22. TRADE LAWS. Licensee agrees not to import, export, re-export, or transfer, directly or indirectly, any part of the Software, the related documentation or any underlying information or technology except in full compliance with all United States, foreign and other applicable laws and regulations. 23. MARKETING. Licensee agrees to the use of Licensee’s name as a customer of Blue Lance and/or a user of the Software in or in connection with any advertising, promotion, or publicity undertaken by Blue Lance, its affiliates, representatives, or agents. 24. ENTIRE AGREEMENT. THIS AGREEMENT, THE EXHBITS ATTACHED HERETO AND THE BLUE LANCE INVOICE CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF, AND THIS AGREEMENT SHALL NOT BE MODIFIED, AMENDED OR RESCINDED IN WHOLE OR IN PART, EXCEPT BY WRITTEN AGREEMENT OF THE PARTIES HERETO. EXHIBIT 'A' SOFTWARE SUPPORT SERVICE POLICY This Software Support Service Policy details the general support of Software provided under this Agreement by BLUE LANCE. During the applicable term of your license, and subject to receipt of the applicable subscription or maintenance fees, BLUE LANCE will provide support services for the Software. Said support will include, but not be limited to the following: 1. SOFTWARE REVISIONS, UPGRADES & UPDATES. Subscribers to Blue Lance’s Standard Support Service will receive all software revisions, upgrades, patches, bug fixes and documentation updates FREE of charge. 2. TELEPHONE TECHNICAL SUPPORT. Subscribers to Blue Lance’s Standard Support Service will receive telephone technical support during BLUE LANCE’s normal business hours (Monday through Friday, 8:30 a.m. to 5:30 p.m. C.S.T.) excluding regularly scheduled holidays of Blue Lance. 713.255.4800 . Fax 713.650.0090 . www.BlueLance.com . 410 Pierce . Suite 309 . Houston, Texas 77002 Page 6 of 6