Virtual Bridges License, Limited Warranty and Support Terms

The following License, Limited Warranty and Support Terms (“Terms”), along with the Order referencing these Terms (collectively, “Agreement”), govern the license of the Virtual Bridges, Inc. (“Virtual Bridges”) software and its related documentation set forth in the Order (together, the “Software”) by the customer set forth in the Order (“Customer”) except to the extent there is a separate signed agreement between Customer and Virtual Bridges expressly pertaining to the license of the Software. To the extent of a conflict, the order of precedence will be: (a) the signed agreement, and (b) this Agreement.

END USER LICENSE

License. Subject to the terms and conditions of this Agreement, Virtual Bridges hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, perpetual license to use the Software for the number of Concurrent Users set forth in the Order for Customer’s internal data processing requirements.

Restrictions. The license rights granted in this Agreement do not authorize Customer (nor may Customer authorize any third party) to: (a) transfer, distribute or disclose the Software, in whole or in part to any third party, (b) sell, lease, modify, enhance, translate or create derivative works of the Software or incorporate the Software into or with other software, (c) copy the Software, in whole or in part, except one copy as reasonably necessary for archival back-up purposes, (d) reverse engineer, reverse assemble, decompile or convert or apply any procedure or process to the Software in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code, source listings, design, architecture, logic or algorithms for the Software, or any trade secret information or process contained in the Software (except to the extent that such acts may not lawfully be prohibited), (e) use any third party software delivered with or as part of the Software except with the Software, (f) use the Software for any timesharing, service bureau, ASP, SaaS service, or rental use of the program (this restriction does not preclude or restrict Customer from contracting for services from outsourced IT providers), (g) work around any technical limitations in the Software, (h) disclose the results of any system performance metrics or benchmarking of the Software, or use such results for its own competing software development activities, without the prior written consent of Virtual Bridges, or (i) alter, change or remove any proprietary notices or confidentiality legends placed on or contained within the Software. Customer will include such notices and legends in all copies of any part of the Software made pursuant to this Agreement.

Reservation of Rights. Customer’s rights in the Software are limited to those expressly granted in this Agreement. Virtual Bridges reserves all rights and licenses not expressly granted to Customer under this Agreement. The Software provided hereunder is licensed and not sold.

Proprietary Rights and Notices. Customer acknowledges that although copyrighted, the Software embodies valuable trade secrets proprietary to Virtual Bridges and Virtual Bridges’ licensors (including, but not limited to, its structure, organization, and source code). As between Virtual Bridges and Customer, the Software (and all copies thereof) are the copyrighted, proprietary, and confidential property of Virtual Bridges and its licensors, and all right, title and interest in and to the intellectual property rights in and to the Software, including but not limited to all patent rights, copyrights, trademark rights, trade secret rights, are owned by, belong to and remain with Virtual Bridges and its licensors and not Customer. Customer will maintain the Software in confidence and will not disclose any such information to any third party, or use such information for purposes other than expressly authorized herein. Virtual Bridges and its licensors retain all right, title and interest in and to any and all trademarks and logos of Virtual Bridges and its licensors displayed on or in the Software.

The breach of the Software license and restrictions and/or Customer’s confidentiality obligations may cause irreparable harm to Virtual Bridges, the extent of which would be difficult to ascertain. Accordingly, in addition to any other remedies to which Virtual Bridges may be legally entitled, Virtual Bridges will have the right to obtain immediate injunctive relief in the event of a breach of such terms by Customer without the requirement of posting a bond.

Term and Termination. The term of this Agreement will begin on the effective date of the Order and continue in force until all Software licenses granted under it terminate. Customer may terminate this Agreement and the Software licenses at any time by destroying all copies of the Software. Virtual Bridges will have the right to terminate this Agreement and the Software licenses granted hereunder if Customer breaches any term of this Agreement, including but not limited to nonpayment, and fails to cure such breach within 30 days (15 days in the case of non-payment) after written notice thereof. Upon termination, Customer will discontinue use of and destroy all copies of the Software in its possession or control. All confidentiality obligations of Customer and all limitations of liability and disclaimers and restrictions of warranty will survive termination of this Agreement.

Customer Records. Customer grants Virtual Bridges and its independent accountants the right to examine Customer’s books, records and accounts during Customer’s normal business hours to verify compliance with this Agreement. In the event such audit discloses non-compliance with this Agreement, Customer will within 60 days pay to Virtual Bridges, as applicable, the appropriate license fees, plus the reasonable cost of conducting the audit.

U.S. Government End User Purchasers. If Customer is an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software, documentation, specifications or other related materials of any kind, including technical data (“Software and Documentation”), is restricted in accordance with Federal Acquisition Regulation (“FAR”) 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7202 for military agencies. The Software and Documentation are commercial computer software and commercial computer software documentation. The use of the Software and Documentation is further restricted in accordance with the terms of this Agreement, or any modification thereto.

Export. The Software may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer will comply with all such regulations.

LIMITED WARRANTY AND DISCLAIMER

Limited Software Warranty. Virtual Bridges warrants to Customer that for 90 days from the date of shipment or the download access availability date the Software will perform materially in conformance with the Software documentation delivered by Virtual Bridges to Customer under this Agreement (“Documentation”). Virtual Bridges does not warrant that the Software will meet all of Customer’s requirements or that the use of the Software will be uninterrupted or error-free. The foregoing warranty applies only to failures in operation of the Software that are verifiable and does not apply to: (a) Software that is modified or altered by Customer or any third party, without Virtual Bridges’ express written authorization and direct supervision, (b) Software that is otherwise operated in violation of this Agreement or other than in accordance with the Documentation, or (c) failures which are caused by other software or hardware products which are not Software. As Customer’s sole and exclusive remedy and Virtual Bridges’ entire liability for any breach of the foregoing warranty, Virtual Bridges will, at its sole option and expense, promptly repair or replace such Software, or terminate the applicable Software license and refund to Customer the applicable fees paid upon return of the Software for a refund. Due to the continual development of new techniques for intruding or attacking networks, Virtual Bridges does not warrant that the Software will be free of vulnerability to intrusion or attack.

Virtual Bridges has no responsibilities of any kind, whether in warranty or to provide Support Services (as defined below), with respect to: (i) problems caused by Customer’s failure to install or use the Software in a suitable environment as specified by Virtual Bridges, (ii) problems caused by Customer’s failure to implement and operate the Software in accordance with the Documentation and any other written instructions supplied by Virtual Bridges, (iii) problems in the use or functioning of the Software caused by hardware or software not provided by Virtual Bridges, or (iv) any modifications or other alterations of the Software by any person or entity other than one authorized by Virtual Bridges.

Disclaimer of Warranty. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SOFTWARE IS PROVIDED “AS IS”. VIRTUAL BRIDGES DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. VIRTUAL BRIDGES DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR THAT ITS USE WILL BE UNINTERRUPTED. VIRTUAL BRIDGES’ DISCLAIMER ALSO APPLIES TO ITS SUPPLIERS. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. This disclaimer and exclusion will apply even if the express warranty above fails of its essential purpose.

High Risk Activities. The Software is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control software in hazardous environments or high risk applications regarding fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical, property or environmental damage (“High Risk Activities”). Virtual Bridges and its licensors specifically disclaim any express or implied warranty of fitness for High Risk Activities.

Support Services

Support Services. Customer may purchase annual maintenance and support services (“Support Services”) for the Software. The provision of Support Services by Virtual Bridges is subject to Virtual Bridges’ Support Services terms and conditions in effect at the time Customer purchases such annual services. All error corrections, updates, and upgrades provided by Virtual Bridges to Customer in connection with Support Services are deemed Software and are governed by the terms and conditions of this Agreement. Support Services do not include new features and functionality which are priced separately by Virtual Bridges nor any future products. Virtual Bridges may modify its Support Services terms and conditions without written notice to Customer, provided that in no event may Virtual Bridges make any modifications to its Support Services terms and conditions that would materially reduce the level of Support Services that Virtual Bridges provides to Customer during the then-current annual term for which Customer has paid Support Services fees.

Annual Renewal. Customer may renew annual Support Services before its expiration by paying the annual fee invoiced by Virtual Bridges before the anniversary date. Except as otherwise provided in the Order, each renewal term will be a one-year term, commencing on the expiration of the prior term and expiring on the immediately following anniversary date. Annual Support Services will automatically terminate at the end of the then-current paid up annual term if Customer has elected not to or has failed to timely make full payment to Virtual Bridges of the invoiced annual Support Services fee required to renew the term.

Professional Services. Customer may purchase professional services (“Professional Services”) for the Software. The provision of professional services by Virtual Bridges is subject to Virtual Bridges’ Professional Services terms and conditions in effect at the time Customer purchases such services. Virtual Bridges may modify its Professional Services terms and conditions without written notice to Customer, provided that such modifications will not take effect with respect to any then-current statements of work in effect between the parties.

VIRTUAL BRIDGES INFRINGEMENT INDEMNITY

Subject to the liability limitations set forth in the Limitation of Liability section below, Virtual Bridges will defend Customer against, and pay any resulting final judgment (or settlement that Virtual Bridges consents to), for any claims made by an unaffiliated third party that the Software, as provided by Virtual Bridges to Customer under this Agreement, infringes its U.S. patent which was issued as of the date Customer first licensed the Software or its copyright. Virtual Bridges’ obligations under this section are conditioned upon Customer: (a) giving prompt written notice to Virtual Bridges of any such claim, (b) allowing Virtual Bridges to control the defense and any related settlement of any such claim, and (c) furnishing Virtual Bridges with reasonable assistance in the defense of any such claim. Customer may participate in the proceedings at its option and expense. This indemnity obligation does not extend to any open source code embedded or included in the Software.

If Customer’s use of any of the Software hereunder is, or in Virtual Bridges’ opinion is likely to be, enjoined due to the type of claim specified in the paragraph above then Virtual Bridges may, at its sole option and expense: (i) procure for Customer the right to continue using such Software under the terms of this Agreement, (ii) replace or modify such Software so that it is non-infringing and substantially equivalent or better in function to the enjoined Software, or (iii) if neither options (i) and (ii) are reasonably available, then Virtual Bridges may terminate Customer’s rights hereunder with respect to such Software and refund to Customer the unamortized portion of the license fees paid for such Software, based upon a straight-line three year depreciation commencing as of the date such Software was licensed by Customer.

Virtual Bridges will have no obligation under this section for any claim of infringement to the extent that it results from: (1) Customer’s breach of this Agreement, (2) combination or use of the Software with equipment, software, products or processes not furnished by Virtual Bridges to the extent such a claim would have been avoided if the Software was not used in such combination, (3) modifications of the Software made other than by Virtual Bridges, or (4) failure of Customer to use updated or modified Software provided by Virtual Bridges to avoid a claim of infringement. Further, Virtual Bridges will not be responsible for any combined defense and judgment amounts which exceed the license fees paid by Customer for the Software which is the subject of the claim.

THE PROVISIONS OF THIS SECTION SET FORTH VIRTUAL BRIDGES’ SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

LIMITATION OF LIABILITY

REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL VIRTUAL BRIDGES OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE OR LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE SOFTWARE OR OTHERWISE AND EVEN IF VIRTUAL BRIDGES OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER IS RESPONSIBLE FOR ASSURING AND MAINTAINING THE BACKUP OF ALL CUSTOMER DATA. UNDER NO CIRCUMSTANCES WILL VIRTUAL BRIDGES BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR THE LOSS OF OR DAMAGE TO DATA. IN NO EVENT WILL VIRTUAL BRIDGES’ OR ITS SUPPLIERS’ LIABILITY TO CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY, OR OTHERWISE, EXCEED THE LICENSE FEES PAID BY CUSTOMER FOR THE SOFTWARE THAT GAVE RISE TO THE CLAIM.

NOTICES

Copyright © 2011 Virtual Bridges, Inc. All rights reserved. Virtual Bridges® and Verde™ are trademarks of Virtual Bridges, Inc. All other trademarks mentioned in this document or on Virtual Bridges’ Web site are the property of their respective owners.