This Software License Agreement (“Agreement”) is a binding legal contract between the entity identified below (“Customer”) and ThingLogix, Inc. (“ThingLogix”).

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1. Term. This Agreement will become effective on the last signature date below (the “Effective Date”).  The initial term (“Initial Term”) of this Agreement will begin on the Effective Date and will continue thereafter for the period set forth in Exhibit A. Thereafter, the Agreement will automatically renew for successive one year terms (each a “Renewal Term”), unless either party gives notice to the other of its intent not to renew at least thirty (30) days prior to the expiration of the then current term. The Initial Term and any Renewal Terms are referred to, collectively, as the “Term.”

2. Software License.  ThingLogix grants Customer a non-exclusive, non-transferable license during the Term to use the software (the “Software”) identified in Exhibit A for Customer’s internal use only.  Customer’s End Users, as defined below, may use the Software solely for Customer’s internal use.  In addition to the foregoing, ThingLogix will furnish the installation and configuration services, if any, expressly identified in Exhibit A.  For purposes of this Agreement, “End Users” means Customer’s employees, contractors and representatives who are authorized to access the Software on Customer’s behalf.  The term “Software” includes any enhancements, new release, and bug fixes furnished by ThingLogix as part of maintenance and support services, as more fully described in Section 7.

3. Third Party Software.  To the extent any software licensed from third parties, including open source software, (collectively, “Third Party Software”) is provided with or embedded in the Software, Customer shall comply with the terms and conditions of the applicable third party licenses associated with the Third Party Software, in addition to the terms and restrictions contained in this Agreement.  All relevant licenses for the Third Party Software are provided in a license.txt file accompanying the Software or at a URL specified by ThingLogix.  Customer’s use of the Software shall be deemed acceptance of the third party licenses.  THINKLOGIX MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY SOFTWARE.  ALL THIRD PARTY SOFTWARE IS PROVIDED “AS-IS,” WITHOUT WARRANTIES OF ANY KIND BY LICENSOR.  IN NO EVENT WILL THINGLOGIX BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE THIRD PARTY SOFTWARE, EVEN IF THINGLOGIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

4. Restrictions. Customer and its End Users may only use the Software as described in this Agreement and in the then current documentation made generally available by ThingLogix to its customers regarding the Software (the “Documentation”). Customer is responsible for ensuring its End Users comply with all relevant terms of this Agreement and any failure to comply will constitute a breach by Customer.  Except as expressly authorized by this Agreement, Customer will not, and will not allow any End User or other third party to, (i) permit any third party to access or use the Software other than an End User; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the trade secrets embodied in the Software, except to the extent expressly permitted by applicable law; (iii) use the Software or any ThingLogix Confidential Information to develop a competing product or service; (iv) use any Software, or allow the transfer, transmission, export, or re-export of any Software or portion thereof, in violation of any export control laws or regulations administered by the U.S. Commerce Department or any other government agency; or (v) remove any copyright, trademark, proprietary rights, disclaimer, or warning notice included on or embedded in any part of the Documentation and Software, including any screen displays, etc., or any other products or materials provided by ThingLogix hereunder. Under no circumstances will ThingLogix be liable or responsible for any use, or any results obtained by the use, of the Software in conjunction with any services, software, or hardware that are not provided by ThingLogix. All such use will be at Customer’s sole risk and liability.

5. Proprietary Rights. Customer acknowledges and agrees that (i) the Software is protected by intellectual property rights, as applicable, of ThingLogix and its vendors/licensors and that Customer has no right to transfer or reproduce any Software or prepare any derivative works with respect to, or disclose Confidential Information (as defined in Section 12 (Confidentiality)) pertaining to, any Software and (ii) that ThingLogix owns all right, title, and interest in and to the Software, together with all ideas, architecture, algorithms, models, processes, techniques, user interfaces, database design and architecture, and “know-how” embodying the Software. Under no circumstances will Customer be deemed to receive title to any portion of the Software, title to which at all times will vest exclusively in ThingLogix. This is not a “work made for hire” agreement, as that term is defined in Section 101 of Title 17 of the United States Code.  Customer will preserve all Software from any liens, encumbrances, and claims of any individual or entity. Customer will not use any Confidential Information disclosed by ThingLogix to Customer in connection with this Agreement to contest the validity of any intellectual property rights of ThingLogix or its licensors. Any such use of ThingLogix’s Confidential Information will constitute a material, non-curable breach of this Agreement.

6. Feedback. Customer may provide suggestions, comments or other feedback (collectively, “Feedback”) to ThingLogix with respect to its products and services, including the Software. Feedback is voluntary. ThingLogix may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Customer’s intellectual property rights to make use of the Feedback, Customer grants ThingLogix an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with ThingLogix’s business, including the enhancement of the Software.

7. Support and Maintenance.  During the Term, ThingLogix will provide Customer with reasonable telephone support during ThingLogix’s then current business hours.  ThingLogix will provide Customer Software updates and bug fixes that ThingLogix in its sole discretion makes generally available to its other similarly situated licensees at no charge.  However, Customer shall not be entitled to receive updates or new releases that include new or different functionality for which ThingLogix imposes an additional charge to its customers.  Such new or different functionality may be purchased by Customer, in its discretion, at ThingLogix’s then current pricing.  ThingLogix will use commercially reasonable efforts to correct reproducible failures of the Software to perform in substantial accordance with their then current Documentation.

8. Fees.

1. In general. Customer will pay ThingLogix the fees set forth in Exhibit A. All fees are non-refundable (except as expressly provided herein).  If Customer terminates this Agreement for any reason other than breach by ThingLogix during the initial year of the Term, Customer shall not be entitle to a refund of any fees paid.  Thereafter, Customer shall be entitled to a prorated refund over the remainder of the then pending term.  Customer will pay all invoices within thirty (30) days of invoice date. Payments not made within that time period will be subject to late charges equal to the lesser of (a) one and one-half percent (1.5%) per month of the overdue amount or (b) the maximum amount permitted under applicable law. In the event an invoice remains unpaid forty-five (45) or more days from the invoice date, ThingLogix may, in its discretion, suspend performance hereunder until the invoice is paid in full.  Following the initial year of the Term, on sixty (60) days prior notice to Customer, ThingLogix may, at its discretion, adjust any or all fees due hereunder. Customer may terminate this Agreement on written notice to ThingLogix within thirty (30) days of its receipt of notice from ThingLogix to adjust the fees; provided, however, that if Customer fails to object to such adjustment in writing within the foregoing thirty (30) days then Customer will be deemed to have agreed to the adjustment.

2. Taxes. In addition to any other payments due under this Agreement, Customer agrees to pay, indemnify and hold ThingLogix harmless from any sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the performance of the Software under this Agreement; excluding, however, income taxes on profits which may be levied against ThingLogix.

3. Warranties.

4. Customer Warranty. Customer represents and warrants that (a) it has full power, capacity, and authority to enter into this Agreement; and (b) its use of the Software will be in compliance with all Applicable Law.

5. ThingLogix Warranty. During the Term, ThingLogix represents and warrants (i) the Software will substantially comply with the Documentation; (ii) it shall use commercially reasonable efforts to screen the Software for viruses, Trojan horses, worms, and other similar intentionally harmful or destructive code; and (iii) it shall comply with Applicable Law in performing this Agreement.  In the event of a breach of the warranty in Section 9.2, ThingLogix’s sole and exclusive liability and Customer’s sole and exclusive remedy will be to use reasonable efforts to correct the non-conformance. In the event ThingLogix is unable through reasonable efforts to correct the defective Software within thirty (30) days from receipt of notice from Customer of the breach, Customer may elect to terminate this Agreement and receive a pro-rated refund of any pre-paid, unused recurring fees for the non-conforming Software.

6. Disclaimer of Warranties.  EXCEPT AS PROVIDED IN SECTION 9.2 (THINGLOGIX WARRANTY), THE SOFTWARE, DOCUMENTATION, MAINTENANCE AND SUPPORT SERVICES, AND ANY OTHER SERVICES HEREUNDER ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND. THINGLOGIX AND ITS VENDORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND TITLE/NON-INFRINGEMENT.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THINGLOGIX OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE ANY OTHER WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF THINGLOGIX’S OBLIGATIONS HEREUNDER.

7. ThingLogix Indemnity. ThingLogix will defend and indemnify Customer and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) arising from a claim by a third party that Customer’s licensed use of the Software infringes that third party’s United States patent, copyright, or trade secret rights. The foregoing indemnification obligation of ThingLogix is contingent upon Customer promptly notifying ThingLogix in writing of such claim, permitting ThingLogix sole authority to control the defense or settlement of such claim and providing ThingLogix reasonable assistance (at ThingLogix’s sole expense) in connection therewith. If a claim of infringement under this Section 10 (ThingLogix Indemnity) occurs, or if ThingLogix determines a claim is likely to occur, ThingLogix will have the right, in its sole discretion, to either (i) procure for Customer the right or license to continue to use the Software free of the infringement claim, or (ii) modify the Software to make it non-infringing, without loss of material functionality. If neither of these remedies is reasonably available to ThingLogix, ThingLogix may, in its sole discretion, immediately terminate this Agreement and return the prorated portion of any pre-paid, unused fees for the relevant Software. Notwithstanding the foregoing, ThingLogix will have no obligation with respect to any claim of infringement that is based upon or arises out of (i) the use or combination of the Software with any hardware, software, products, data, or other materials not provided by ThingLogix, (ii) modification or alteration of the Software by anyone other than ThingLogix, (iii) use of Software in excess of the rights granted in this Agreement, or (iv) any specifications or other intellectual property provided by Customer (collectively, the “Excluded Claims”). The provisions of this Section 10 (ThingLogix Indemnity) state the sole and exclusive obligations and liability of ThingLogix and its licensors and suppliers for any claim of intellectual property infringement arising out of or relating to the Software or this Agreement, and are in lieu of any implied warranties of non-infringement, all of which are expressly disclaimed.

8. Customer Indemnity. Customer will defend and indemnify ThingLogix and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) incurred by ThingLogix as a result of any claim by a third party arising from (i) Customer’s use of the Software in breach of this Agreement or (ii) the Excluded Claims.  The foregoing indemnification obligation of Customer is contingent upon ThingLogix promptly notifying Customer in writing of such claim, permitting Customer sole authority to control the defense or settlement of such claim and providing Customer reasonable assistance (at Customer’s sole expense) in connection therewith.

9. Confidentiality.

10. Definition of Confidential Information.  Each party agrees that all information supplied by one party and its affiliates and agents (collectively, the “Disclosing Party”) to the other (“Receiving Party”) including, without limitation: (a) source and object code, prices, trade secrets, mask works, databases, hardware, software, designs and techniques, programs, engine protocols, models, displays and manuals, and the selection, coordination, and arrangement of the contents of such materials, and (b) any unpublished information concerning research activities and plans, customers, marketing or sales plans, sales forecasts or results of marketing efforts, pricing or pricing strategies, costs, operational techniques, strategic plans, and unpublished financial information, including information concerning revenues, profits and profit margins, will be deemed confidential and proprietary to the Disclosing Party, regardless of whether such information was disclosed intentionally or unintentionally or marked as “confidential” or “proprietary” (“Confidential Information”).  For the avoidance of doubt, the Software and Documentation are the Confidential Information of ThingLogix.

11. Exclusions.  Confidential Information will not include any information or material, or any element thereof, whether or not such information or material is Confidential Information for the purposes of this Agreement, to the extent any such information or material, or any element thereof: (a) has previously become or is generally known, unless it has become generally known through a breach of this Agreement or a similar confidentiality or non-disclosure agreement; (b) was already rightfully known to the Receiving Party prior to being disclosed by or obtained from the Disclosing Party as evidenced by written records kept in the ordinary course of business of or by proof of actual use by the Receiving Party; (c) has been or is hereafter rightfully received by the Receiving Party from a third person (other than the Disclosing Party) without restriction or disclosure and without breach of a duty of confidentiality to the Disclosing Party; or (d) has been independently developed by the Receiving Party without access to Confidential Information of the Disclosing Party.

12. Treatment of Confidential Information. Each party recognizes the importance of the other’s Confidential Information. In particular, each party recognizes and agrees that the Confidential Information of the other is critical to their respective businesses and that neither party would enter into this Agreement without assurance that such information and the value thereof will be protected as provided in this Section and elsewhere in this Agreement. Accordingly, each party agrees as follows: (a) the Receiving Party will hold any and all Confidential Information it obtains in strictest confidence and will use and permit use of Confidential Information solely for the purposes of this Agreement; (b) without limiting the foregoing, the Receiving Party will use at least the same degree of care, but no less than reasonable care, to avoid disclosure or use of this Confidential Information as the Receiving Party employs with respect to its own Confidential Information of a like importance; (c) the Receiving Party may disclose or provide access to its responsible employees who have a need to know and may make copies of Confidential Information only to the extent reasonably necessary to carry out its obligations hereunder; (d) the Receiving Party currently has, and in the future will maintain in effect and enforce, rules and policies to protect against access to, or use or disclosure of, Confidential Information other than in accordance with this Agreement, including, without limitation, written instruction to, and agreements with, employees and agents who are bound by an obligation of confidentiality no less stringent than set forth in this Agreement to ensure that such employees and agents protect the confidentiality of Confidential Information; (e) the Receiving Party expressly will instruct its employees and agents not to disclose Confidential Information to third parties, including, without limitation, customers, subcontractors, or consultants, without the Disclosing Party’s prior written consent; and (f) the Receiving Party will notify the Disclosing Party immediately of any unauthorized disclosure or use, and will cooperate with the Disclosing Party to protect, all proprietary rights in and ownership of its Confidential Information.

13. Compelled Disclosures.  To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Confidential Information in accordance with such law or order or requirement, subject to the following conditions: as soon as possible after becoming aware of such law, order, or requirement, and prior to disclosing Confidential Information pursuant thereto, the Receiving Party will so notify the Disclosing Party in writing and, if possible, the Receiving Party will provide the Disclosing Party notice not less than five (5) business days prior to the required disclosure. The Receiving Party will use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest, otherwise oppose, or seek to limit such disclosure by the Receiving Party, and any subsequent disclosure or use of Confidential Information that may result from such disclosure. The Receiving Party will cooperate with and provide assistance to the Disclosing Party regarding such measures. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure will not otherwise affect the Receiving Party’s obligations hereunder with respect to Confidential Information so disclosed.

14. Return of Confidential Information.  On termination or expiration of this Agreement, Receiving Party will return or destroy, at the Disclosing Party’s option, the Disclosing Party’s Confidential Information.  Notwithstanding the foregoing, the Receiving Party will not be required to remove copies of the Disclosing Party’s Confidential Information from its backup media and servers, where doing so would be commercially impracticable.  In addition, the foregoing destruction and return obligation will be subject to any retention obligations imposed on Receiving Party by law or regulation.

15. Non-Exclusive Equitable Remedy. Each party acknowledges and agrees that due to the unique nature of the Confidential Information there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may allow a party or third parties to unfairly compete with the other party, resulting in irreparable harm to such party, and therefore, that upon any such breach or any threat thereof, each party will be entitled to appropriate equitable and injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either of them might have at law or equity before an arbitrator in accordance with the arbitration provision of this Agreement. Any breach of this Section 12 (Confidentiality) will constitute a material breach of this Agreement and be grounds for immediate termination of this Agreement in the exclusive discretion of the non-breaching party.

16. Limitation of Liability and Damages. NEITHER THINGLOGIX NOR ITS VENDORS AND LICENSORS WILL HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES, TRADING LOSSES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING USE OF OR INABILITY TO USE THE SOFTWARE.  THE TOTAL LIABILITY OF THINGLOGIX AND ITS VENDORS AND LICENSORS TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR USE OF THE SOFTWARE IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE) WILL NOT EXCEED THE TOTAL FEES PAID HEREUNDER BY CUSTOMER DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY WILL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.

17. Termination.

18. Termination. This Agreement will terminate (a) on the thirtieth (30th) day after either party gives the other written notice of a breach by the other of any material term or condition of this Agreement, unless the breach is cured before that day; or (b) upon written notice by either party, immediately, if (i) a receiver is appointed for the other party or its property; (ii) the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes a general assignment for the benefit of its creditors; or (iii) any proceedings (whether voluntary or involuntary) are commenced against the other party under any bankruptcy or similar law and such proceedings are not vacated or set aside within sixty (60) days from the date of commencement thereof.

19. Effect of Termination. Upon termination of this Agreement or termination of a particular Software for any reason: (a) the license granted herein to the Software shall automatically terminate; and (b) Customer will pay to ThingLogix all undisputed sums due to ThingLogix through the effective date of such expiration or termination (prorated as appropriate).

20. General Provisions.

21. Affiliates, Subcontractors and Vendors. Some or all of the Software, including support, may be provided by ThingLogix’s affiliates, agents, subcontractors and information system vendors. The rights and obligations of ThingLogix may be, in whole or in part, exercised or fulfilled by the foregoing entities.  ThingLogix shall ensure such entities comply with all relevant terms of this Agreement and any failure to do so shall constitute a breach by ThingLogix.

22. Publicity.  ThingLogix may identify Customer as a customer in its customer listings, Web sites, and other promotional materials.  In addition, ThingLogix may issue a press release regarding the parties’ new relationship under this Agreement.  

23. Force Majeure. Except for the payment of money as described in Section 8 (Fees) of this Agreement, neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, Internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions.

24. Entire Agreement; Amendment. This Agreement sets forth the entire agreement between the parties with regard to the subject matter hereof. No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of this Agreement, except as referenced herein.

25. Governing Law, Venue, and Limitation of Actions. This Agreement will be construed according to, and the rights of the parties will be governed by, the law of the State of California, without reference to its conflict of laws rules. The parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the state or federal courts (if permitted by law and a party elects to file an action in federal court) located in San Francisco, California.  This choice of venue is intended by the parties to be mandatory and not permissive in nature, and to preclude the possibility of litigation between the parties with respect to, or arising out of, this Agreement in any jurisdiction other than that specified in this Section.  Each party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or theory or to object to venue with respect to any proceeding brought in accordance with this Section.  No action, regardless of form, arising out of this Agreement, may be brought by either party more than one (1) year after the cause of action has arisen.  The prevailing party in any action or proceeding will be entitled to recover its reasonable attorneys’ fees and costs.

26. No Third Party Beneficiaries.  There are no third party beneficiaries to this Agreement.

27. Relationship of the Parties. The parties agree that ThingLogix will perform its duties under this Agreement as an independent contractor. Nothing contained in this Agreement will be deemed to establish a partnership, joint venture, association, or employment relationship between the parties. Personnel employed or retained by ThingLogix who perform duties related to this Agreement will remain under the supervision, management, and control of ThingLogix.

28. Assignment. Customer may not assign this Agreement without the prior written consent of ThingLogix.

29. Severability. If any of the provisions of this Agreement are found or deemed by a court to be invalid or unenforceable, they will be severable from the remainder of this Agreement and will not cause the invalidity or unenforceability of the remainder of this Agreement.

30. Waiver. Neither party will by mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party will not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement.

31. Survival. The following provisions will survive termination or expiration of this Agreement: 5 (Proprietary Rights), 9.3 (Disclaimer of Warranties), 10 (ThingLogix Indemnity) (for claims accruing prior to termination), 11 (Customer Indemnity) (for claims accruing prior to termination), 12 (Confidentiality), 13 (Limitation of Liability and Damages), 14 (Termination), and 15 (General Provisions).

32. Notices. Any written notice or demand required by this Agreement will be sent by registered or certified mail (return receipt requested), personal delivery, overnight commercial carrier, or other guaranteed delivery to the other party at the address set forth herein. The notice will be effective as of the date of delivery if the notice is sent by personal delivery, overnight commercial courier or other guaranteed delivery, as of five (5) days after the date of posting if the notice is transmitted by registered or certified mail. Any party may change the address at which it receives notices by giving written notice to the other party in the manner prescribed by this Section.

33. Electronic Execution.  This Agreement may be accepted in electronic form (e.g., by an electronic or digital signature or other means of demonstrating assent) and Customer’s acceptance will be deemed binding between the parties.  Customer acknowledges and agrees it will not contest the validity or enforceability of this Agreement and related documents, including under any applicable statute of frauds, because they were accepted and/or signed in electronic form.