IMPORTANT: Please read this End User License Agreement (“Agreement”) before clicking the “accept” button, installing, configuring and/or using the Software (as defined below) that accompanies or is provided in connection with this Agreement.  By clicking the “Accept” button, installing, configuring and/or using the Software, you and the entity that you represent (“Customer”) agree to be bound by this Agreement with CompilerWorks, Inc. (“CompilerWorks”). This Agreement covers CompilerWorks’ Software (as defined below) and any services that CompilerWorks provides to Customer. You represent and warrant that you have the authority to bind Customer to these terms. If Customer does not unconditionally agree to all of the terms of this Agreement, use of the Software is strictly prohibited.

TO THE EXTENT CUSTOMER HAS SEPARATELY ENTERED INTO AN END USER LICENSE AGREEMENT WITH COMPILERWORKS COVERING THE SAME SOFTWARE, THE TERMS AND CONDITIONS OF SUCH END USER LICENSE AGREEMENT SHALL SUPERSEDE THIS AGREEMENT IN ITS ENTIRETY.

This Agreement includes and incorporates by reference the following documents:

○     Standard Terms and Conditions

○     Order Forms (as defined below)

The Agreement includes the documents listed above and states the entire agreement between the parties regarding its subject matter and supersedes all prior and contemporaneous agreements, terms sheets, letters of intent, understandings, and communications, whether written or oral.  All amounts paid by Customer under this Agreement shall be non-refundable and non-recoupable, unless otherwise provided herein.  Any pre-printed terms in any order forms (other than the Order Form defined herein), quotes, purchase orders or other similar written purchase authorization that add to, or conflict with or contradict, any provisions in the Agreement will have no legal effect.  The provisions of this Agreement may be amended or waived only by a written document signed by both parties.

STANDARD TERMS AND CONDITIONS

1.          Definitions

1.1    “Customer” means that person or entity listed on the Order Form.

1.2     “Customer Systemmeans one or more computer system(s) that is: (a) owned or leased by Customer or its Subsidiary; and (b) within the possession and control of Customer or its Subsidiary.

1.3     “Documentationmeans the standard end-user technical documentation, specifications, materials and other information CompilerWorks supplies in electronic format with the Software or makes available electronically.  Advertising and marketing materials are not Documentation.

1.4     “Effective Date” has the same meaning as used in the Order Form.

1.5     Error means a reproducible failure of the Software to perform in substantial conformity with its Documentation.

1.6     “Intellectual Property Rightsmeans copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contractual rights of non-disclosure or any other intellectual property or proprietary rights, however arising, throughout the world.

1.7     “Order Form” means an ordering document for Software signed (or accepted) by Customer that refers to this Agreement, or submitted by Customer through Google Marketplace.

1.8     “Product Use Environment” means the Customer environment, including without limitation the number of Scripts, Sources and Targets identified in an Order Form.

1.9     “Product Use Environment Upgrade” means the addition of any additional Scripts, Sources and Targets.

1.10     “Release” means any Update or Upgrade if and when such Update or Upgrade is made available to Customer by CompilerWorks.  In the event of a dispute as to whether a particular Release is an Upgrade or an Update, CompilerWorks’ published designation will be dispositive.

1.11    “Scripts” means a file of code as maintained by a developer.  The Software can be licensed based on the number of Scripts and the period identified in the Order Form.

1.12     “Software” or “Company Productsmeans the software that CompilerWorks provides to Customer or its Subsidiary (in object code format only) as identified on the Order Form, and any Releases thereto if and when such Releases are made available by CompilerWorks.

1.13     “Sources and Targets” means the code of the source and target systems of the code being analyzed and converted.

1.14     “Subsidiary” means with respect to Customer, any person or entity that is controlled by Customer, where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities (but only as long as such person or entity meets these requirements).

1.15     “Update” means, if and when available, any Error corrections, fixes, workarounds or other maintenance releases to the Software provided by CompilerWorks to the Customer.

1.16     “Upgrade” means, if and when available, new releases or versions of the Software, that improve the functionality of, or add functional capabilities to the Software.  “Upgrade” does not include the release of a new product for which there is a separate charge.  If a question arises as to whether a release is an Upgrade or a new product, CompilerWorks’ determination will prevail.

1.17     “Usemeans to cause a Customer System to execute any machine-executable portion of the Software in accordance with the Documentation or to make use of any Documentation, Releases, or related materials in connection with the execution of any machine-executable portion of the Software.

1.18     “User” means an employee of Customer or its Subsidiary or independent contractor to Customer or its Subsidiary that is working for Customer or its Subsidiary and has been authorized by Customer or its Subsidiary to Use the Software.

1.19     “Customer’s Code” means all electronic data or information submitted by Customer to the Company Products.

1.20     “Emitted Code” is code or other output from Company Products or any code or output derived indirectly from output of the Company Products.

1.21     “Proof of Concept Code” is Emitted Code generated from a Proof of Concept Order Form. It includes derivative code created from Emitted Code.

1.22     “Migrated Code” is Emitted Code from the Customer identified on a Migration Order Form, between Sources and Targets specified on, and during the period of validity of that Order Form.

2.           Grant And Scope Of License

2.1     License to Company Products.  Subject to the terms of this Agreement, Company hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited license to use the Company Products to create Proof of Concept Code and Migrated Code as applicable.

2.2.     License to Proof of Concept Code. Company hereby grants to Customer a non-transferable, limited license, to inspect, execute, and otherwise evaluate Proof of Concept Code for the purposes of demonstrating the capability of the Software to the Customer between the start Date and end Date listed on the specific Order Form.

2.3.     License to Migrated Code. Company hereby grants to Customer a perpetual, transferable, irrevocable, unrestricted, royalty-free license to Migrated Code.

2.4     License Restrictions. Customer shall not: (a) Use the Software for any purpose other than on Customer’s Code to create Emitted Code; (b) separate the component programs of the Software for use on different computers; (c) adapt, alter, publicly display, publicly perform, translate, create derivative works of, or otherwise modify the Software; (d) sublicense, lease, rent, loan, or distribute the Software to any third party; (e) transfer the Software to any third party (except as provided under Section 12.6); (f) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Software, except as permitted by applicable law; (g) remove, alter or obscure any proprietary notices on the Software or Documentation; (h) allow third parties to access or use the Software, including any use in any application service provider environment, service bureau, or time-sharing arrangements; (i) publish or disclose to any third party any performance or benchmark tests relating to the Software or its use; or (j) use Proof of Concept Code for commercial purposes or in its production environment or expose or disclose Proof of Concept Code to any party not directly engaged in the evaluation of the Proof of Concept Code. No portion of the Software may be duplicated by Customer, except as otherwise expressly authorized in writing by CompilerWorks.  Customer cannot exceed (i) the number of Scripts identified on the Order Form and (ii) the period for such Scripts identified on the Order Form.

2.5     License Keys.  Customer acknowledges that the Software may require license keys or other codes (“Keys”) in order for Customer to install and/or Use the Software. Such Keys may also control continued access to, and Use of, the Software, and may prevent the Use of the Software on any systems except a Customer System. Customer will not disclose the Keys or information about the Keys to any third party. Customer shall not Use any Software except pursuant to specific Keys issued by CompilerWorks that authorizes such Use.

3.          Proprietary Rights.

Customer acknowledges and agrees that the Software, including its sequence, structure, organization, source code and Documentation contains valuable Intellectual Property Rights of CompilerWorks and its suppliers.  The Software and Documentation are licensed and not sold to Customer, and no title or ownership to such Software, Documentation, or the Intellectual Property Rights embodied therein passes as a result of this Agreement or any act pursuant to this Agreement.  The Software, Documentation, and all Intellectual Property Rights therein are the exclusive property of CompilerWorks and its suppliers, and all rights in and to the Software and Documentation not expressly granted to Customer in this Agreement are reserved.  CompilerWorks owns all rights, title, and interest to the Software and Documentation.  Nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license under any existing or future patents of CompilerWorks, except to the extent necessary for Customer to Use the Software and Documentation as expressly permitted under this Agreement.  Company shall own and shall have the sole and exclusive right to use any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including, but not limited to, Users, relating to the Services and/or Company Products (“Feedback”)  Customer hereby assigns to Company all of Customer’s right, title, and interest in and to such Feedback.

4.          Confidentiality

4.1     Confidential Information.  Each party (the “Disclosing Party”) may during the term of this Agreement disclose to the other party (the “Receiving Party”) non-public information regarding the Disclosing Party’s business, including technical, marketing, financial, employee, planning, and other confidential or proprietary information, that (1) if in tangible form, is clearly marked at the time of disclosure as being confidential, or (2) if disclosed orally or visually, is designated at the time of disclosure as confidential, or (3) is reasonably understood to be confidential or proprietary information, whether or not marked (“Confidential Information”).  Without limiting the generality of the foregoing, the Software and the Documentation constitute CompilerWorks’ Confidential Information and Customer Data constitutes Customer’s Confidential Information.

4.2     Protection of Confidential Information.  The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder.  The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

4.3     Exceptions.  The Receiving Party’s obligations under Section 4.2 with respect to Confidential Information of the Disclosing Party will terminate to the extent such information: (a) was already known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information.  In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order or a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.

4.4     Return of Confidential Information.  The Receiving Party will either return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the termination of this Agreement, whichever comes first.  Upon request, the Receiving Party will certify in writing that it has fully complied with its obligations under this Section 4.4.

4.5     Confidentiality of Agreement.  Neither party will disclose the terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (a) as required by law, or (b) pursuant to a mutually agreeable press release, or (c) in connection with a proposed merger, financing, or sale of such party’s business.

5.          Additional Orders; Delivery; Installation

5.1     Additional Orders.  Subject to the terms and conditions of this Agreement, Customer or a Subsidiary of Customer may place orders with CompilerWorks for additional licenses to the Software and/or support and maintenance or training services, including but not limited to Product Use Environment Upgrades (collectively “Additional Products and Services”) by contacting CompilerWorks and executing another Order Form with CompilerWorks for the Additional Products and Services.

5.2     Delivery and Installation.  CompilerWorks will deliver the Software and its related Documentation electronically via URL to Customer and Customer will be solely responsible for installing the Software on its Customer System  (Delivery).  Customer will receive all Updates and Upgrades from CompilerWorks under this Agreement by electronic delivery.  Customer shall promptly provide to CompilerWorks all information that is necessary to enable CompilerWorks to transmit electronically all such items to Customer.  Customer acknowledges that certain internet connections and hardware capabilities are necessary to complete electronic deliveries, and agrees that Customer personnel will receive electronic deliveries by retrieving the Software placed by CompilerWorks on a specific CompilerWorks controlled server.  In furtherance of the purpose of the electronic deliveries, CompilerWorks will not deliver to Customer, and Customer will not accept from CompilerWorks, any Software or Documentation deliverable under this Agreement in any tangible medium including, but not limited to, CD-ROM, tape or paper.  Customer will be deemed to have unconditionally and irrevocably accepted the Software and related Documentation upon Delivery.

6.          Support

6.1     Support and Maintenance.  Company shall: (a) provide its basic support for the Services to Customer at no additional charge, and/or upgraded support if purchased separately; (b) use commercially reasonable efforts to make Support Services available during regular business hours (Monday – Friday, 8am to 5pm Pacific Time), except for any unavailability caused by circumstances beyond Company’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Company’s employees); and (c) provide the Services only in accordance with this Agreement and applicable laws and government regulations.

7.          Term And Termination

7.1     Term.  The term of this Agreement will begin on the Effective Date and continue in force until this Agreement is terminated in accordance with Section 7.2. The term of each license shall be as specified in the applicable Order Form.

7.2     Termination of Agreement.  Each party may terminate this Agreement for material breach by the other party which remains uncured thirty (30) days after delivery of written notice of such breach to the breaching party.  Notwithstanding the foregoing, CompilerWorks may immediately terminate this Agreement and all licenses granted hereunder if Customer breaches Section 2 hereof.  The foregoing rights of termination are in addition to any other rights and remedies provided in this Agreement or by law.

7.3     Effect of Termination.  Upon termination of this Agreement (or termination or expiration of any license granted hereunder), all rights of Customer to Use the Software (or under the relevant license) will cease and: (a) all license rights granted under this Agreement will immediately terminate and Customer shall promptly stop all Use of the Software; (b) CompilerWorks’ obligation to provide support for the Software will terminate; (c) Customer shall erase all copies of the Software from Customer’s computers, and destroy all copies of the Software and Documentation on tangible media in Customer’s possession or control or return such copies to CompilerWorks; and (d) upon request by CompilerWorks, Customer shall certify in writing to CompilerWorks that that it has returned or destroyed such Software and Documentation.

7.4     Survival.  Sections 1, 3, 4, 7.3, 7.4, 8, 9, 10 (only for claims arising based on Use of the Software prior to termination of the applicable license), 11, and 12 will survive the termination of this Agreement.

8.          Fees.

The subscription fee is charged by CompilerWorks and billed by Google.

9.          Limited Warranty

9.1     Software Warranty.  CompilerWorks warrants to, and for the sole benefit of, Customer that, subject to Section 9.2, any Software, as delivered by CompilerWorks and properly installed and operated within the Product Use Environment and used as permitted under this Agreement and in accordance with the Documentation, will perform substantially in accordance with the Documentation for ninety (90) days from the date of Delivery.  Customer’s exclusive remedy and CompilerWorks’ sole liability for breach of this warranty is for CompilerWorks, at its own expense, to replace the Software with a version of the Software that corrects those Errors that Customer reports to CompilerWorks during such warranty period. Any Error correction provided will not extend the original warranty period.

9.2     Exclusions.  CompilerWorks will have no obligation under this Agreement to correct, and CompilerWorks makes no warranty with respect to, Errors related to: (a) improper installation of the applicable Software; (b) changes that Customer has made to the applicable Software; or (c) Use of the applicable Software in a manner inconsistent with the Documentation and this Agreement;

9.3     Disclaimer.  Except as provided in Section 9.1, CompilerWorks hereby disclaims all warranties whether express, implied or statutory with respect to the Software, Documentation, installation services, support services, training services and any other products or services provided to Customer under this Agreement, including without limitation any implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, and any warranty against interference with Customer’s enjoyment of the Software, documentation, installation services, support services, and any other products or services provided to Customer under this Agreement.

10.        Proprietary Rights Indemnity

10.1     CompilerWorks’ Obligation.  Subject to the terms and conditions of Section 10, CompilerWorks will defend at its own expense any suit or action brought against Customer by a third party to the extent that the suit or action is based upon a claim that the Software infringes such third party’s United States copyrights or misappropriates such third party’s trade secrets recognized as such under the Uniform Trade Secrets Act or such other similar laws, and CompilerWorks will pay those costs and damages finally awarded against Customer in any such action or those costs and damages agreed to in a monetary settlement of such claim, in each case that are specifically attributable to such claim.  However, such defense and payments are subject to the conditions that: (a) CompilerWorks will be notified promptly in writing by Customer of any such claim; (b) CompilerWorks will have sole control of the defense and all negotiations for any settlement or compromise of such claim; and (c) Customer will cooperate and, at CompilerWorks’ request and expense, assist in such defense.  This Section 10.1 states CompilerWorks’ entire liability and Customer’s sole and exclusive remedy for any Intellectual Property Right infringement and/or misappropriation.

10.2     Alternative.  If Customer’s or its Subsidiaries’ Use of Software is prevented by injunction or court order because of infringement, or should any Software be likely to become the subject of any claim in CompilerWorks’ opinion, Customer will permit CompilerWorks, at the sole discretion of CompilerWorks and no expense to Customer, to: (a) procure for Customer and its Subsidiaries the right to continue using such Software in accordance with this Agreement; or (b) replace or modify such Software so that it becomes non-infringing while providing substantially similar features.  Where (a) and (b) above are not commercially feasible for CompilerWorks, the applicable licenses will immediately terminate and CompilerWorks will refund pro rated fees for the remainder of the term to Customer.

10.3     Exclusions.  CompilerWorks will have no liability to Customer or any of its Subsidiaries for any claim of infringement or misappropriation to the extent based upon: (a) Use of the Software not in accordance with this Agreement or the Documentation; (b) the combination of the applicable Software with third party hardware or software not conforming to the operating environment specified in Documentation; (c) Use of any Release of the Software other than the most current Release made available to Customer; or (d) any modification of the Software by any person other than CompilerWorks.  Customer will indemnify CompilerWorks against all liability, damages and costs (including reasonable attorneys’ fees) resulting from any such claims.

10.4     Required Updates. In the event the Software become subject to a claim or in CompilerWorks’ opinion is likely to be subject to a claim, upon notice from CompilerWorks to Customer that required updates are available, Customer agrees to download and install such updates to the Software onto Customer Systems within five (5) business days (the “Required Update Period”). At the end of any Required Update Period, Customer’s and its Subsidiaries’ right and license to Use all prior versions of the Software shall automatically terminate and CompilerWorks shall have no liability for any Use of the prior versions of the Software occurring after the Required Update Period.

11.        Limitation Of Liability.

IN NO EVENT WILL CompilerWorks BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF THE USE OR PERFORMANCE OF ANY PRODUCTS, LOSS OF REVENUES, LOSS OF PROFITS, OR BUSINESS INTERRUPTION, EVEN IF CompilerWorks KNOWS OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL CompilerWorks’ TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY CompilerWorks FROM CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING SUCH CLAIM. THIS SECTION 11 WILL APPLY EVEN IF AN EXCLUSIVE REMEDY OF CUSTOMER UNDER THIS AGREEMENT HAS FAILED OF ITS ESSENTIAL PURPOSE.

12.        General

12.1     Audit Rights.  During the term of this Agreement and for two (2) years thereafter, CompilerWorks or its representatives, may upon at least ten (10) days’ written notice, inspect and audit records, Customer Systems, and premises of Customer during normal business hours to verify Customer’s compliance with this Agreement.

12.2     Notices.  All notices, consents and approvals under this Agreement must be delivered in writing by courier, by facsimile or by certified or registered mail (postage prepaid and return receipt requested) to the other party at the address set forth in the Order Form or the party’s website (or other verifiable address), and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner.  Either party may change its address by giving notice of the new address to the other party.

12.3     Relationship of Parties.  The parties hereto are independent contractors.  Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties.

12.4     Publicity.  CompilerWorks may use Customer’s name and a description of Customer’s Use of the Software for investor relations and marketing purposes.

12.5     Compliance with Export Control Laws.  The Software may contain encryption technology controlled under U.S. export law, the export of which may require an export license from the U.S. Commerce Department.  Customer will comply with all applicable export control laws and regulations of the U.S. and other countries.  Customer will defend, indemnify, and hold harmless CompilerWorks from and against all fines, penalties, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) incurred by CompilerWorks as a result of Customer’s breach of this Section 12.5.

12.6     Assignment.  Customer may not assign or transfer, by operation of law, merger or otherwise, any of its rights or delegate any of its duties under this Agreement (including, without limitation, its licenses for the Software) to any third party without CompilerWorks’ prior written consent.  Any attempted assignment or transfer in violation of the foregoing will be null and void.  CompilerWorks may assign its rights or delegate its obligations under this Agreement.

12.7     Governing Law and Venue.  This Agreement will be governed by the laws of the State of California, excluding any conflict of law provisions that would require the application of the laws of any other jurisdiction.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.  Any action or proceeding arising from or relating to this Agreement must be brought exclusively in a federal or state court located in Santa Clara, California.  Each party irrevocably consents to the personal jurisdiction and venue in, and agrees to service of process issued by, any such court.  Notwithstanding the foregoing, either party may bring an action or suit seeking injunctive relief to protect its Intellectual Property Rights or Confidential Information in any court having jurisdiction.

12.8     Force Majeure.  Any delay in or failure of performance by either party under this Agreement, other than a failure to pay amounts when due, will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party.

12.9     Remedies.  Except as provided in Sections 9 and 10 of this Agreement, the parties’ rights and remedies under this Agreement are cumulative.  Customer acknowledges that the Software contains valuable trade secrets and proprietary information of CompilerWorks, that any actual or threatened breach of Section 2 (Grant and Scope of License) or Section 4 (Confidentiality) will constitute immediate, irreparable harm to CompilerWorks for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.  If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

12.10     Waiver; Severability.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.  If any provision of this Agreement is adjudicated to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

12.11     Order of Precedence; Construction.  The provisions of the standard terms and conditions will prevail regardless of any inconsistent or conflicting provisions on any Order Forms. The Section headings of this Agreement are for convenience and will not be used to interpret this Agreement.  As used in this Agreement, the word “including” means “including but not limited to.”