Software License Agreement

PLEASE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU INDICATE ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE. THIS AGREEMENT DOES NOT SUPERCEDE ANY OTHER WRITTEN AGREEMENT BETWEEN YOU AND CYGNA LABS.

This agreement (the “Agreement”) is made between Cygna Labs Corp., (“Cygna Labs”) a Delaware corporation and you, the customer (“Licensee”). The terms and conditions of this Agreement are intended by the parties as a final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous agreement unless such agreement is signed by both parties. In the absence of such an agreement, this Agreement shall constitute the complete and exclusive statement of the terms and conditions and no extrinsic evidence whatsoever may be introduced in any judicial proceeding that may involve the Agreement. This Agreement may not be modified except by a writing executed by both parties hereto.

SECTION 1. GENERAL PROVISIONS.

The provisions of this Section 1 shall apply to any and all Software, as defined below.

1.1 Software
For the purpose of this Agreement, the licensed computer software program(s) downloaded and/or installed pursuant to this Agreement and the supporting documentation for such will be referred to as the “Software”.

1.2 Restrictions
Cygna Labs reserves any and all rights, implied or otherwise, which are not expressly granted to Licensee hereunder, and retains all rights, title and interest in and to the Software. Licensee agrees that it has no right whatsoever to modify the Software or any portion thereof in any manner. Licensee shall not reverse engineer, decompile, disassemble, modify, adapt, rent, lease, loan or create derivative works based upon the Software or any part thereof. Licensee may not use the Software as a managed service provider, application service provider, in any commercial time share arrangement, or in any other activity intended to directly produce revenue. Licensee may not resell the Software licensed hereunder nor use the software to provide consulting or training services to third parties. Licensee shall not assign the Software to a third party for use in managing Licensee's environment without the prior written consent of Cygna Labs.

1.3 Export Law Assurances.
Licensee shall not export or re-export, or allow the export or re-export of the Software or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.

1.4 Limitation of Remedies and Damages.
IN NO EVENT WILL CYGNA LABS, ITS SUBSIDIARIES OR ANY OF THE LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES OF ANY OF THE FOREGOING BE LIABLE TO LICENSEE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND DATA AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF CYGNA LABS OR A CYGNA LABS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. CYGNA LABS'S CUMULATIVE LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO CYGNA LABS FOR THE SOFTWARE THAT CAUSED THE DAMAGES. NO ACTION MAY BE BROUGHT AGAINST CYGNA LABS LATER THAN ONE (1) YEAR FROM THE TERMINATION OF THIS AGREEMENT.

1.5 Nondisclosure.
“Confidential Information” means the Agreement, Software, source code, object code, trade secrets, know-how and any proprietary tools, proprietary knowledge or proprietary methodologies disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) and not generally available to the public, which the Receiving Party may gain access to or knowledge of as a result of this Agreement. The Receiving Party shall observe complete confidentiality with respect to the Confidential Information, and shall use commercially reasonable efforts and take all reasonable steps to protect the Confidential Information from any use, reproduction, publication, disclosure, or distribution except as specifically authorized by this Agreement. The Receiving Party shall promptly notify the Disclosing Party of any known unauthorized use or disclosure of the Confidential Information and will cooperate with the Disclosing Party in any litigation brought by the Disclosing Party against third parties to protect its proprietary rights.

1.6 Assignment.
Licensee may not assign or transfer its rights or obligations under this Agreement without prior written approval by Cygna Labs and any purported assignment or transfer without Cygna Labs's consent shall be null and void.

1.7 Injunctive Relief.
Licensee hereby expressly agrees that Cygna Labs, in addition to any other rights or remedies which Cygna Labs may possess, shall be entitled to injunctive and other equitable relief without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.

1.8 Software Supplied to the Government.
The Software is a “commercial item” under FAR 2.201. Consistent with FAR section 12.212 and DFARS section 227.7202, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Software or Documentation by the U.S. government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted herein.

1.9 Survival.
Sections 1.2, 1.4, 1.5, 1.10, 1.12, 1.13, and 3.4 shall survive termination of this Agreement for any reason whatsoever.

1.10 Warranties.
THE LIMITED WARRANTIES AS DESCRIBED IN SECTION 2.2 AND SECTION 3.3 OF THIS AGREEMENT ARE THE ONLY WARRANTIES PROVIDED BY CYGNA LABS AND ITS LICENSORS, WHO EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE SOFTWARE AND ACCOMPANYING WRITTEN MATERIALS.

1.11 Termination.
This Agreement or an individual license granted hereunder may be terminated (a) by mutual agreement of Cygna Labs and Licensee, (b) by Licensee, upon thirty (30) days prior written notice to Cygna Labs, and (c) by Cygna Labs, if Licensee or its Affiliate breaches this Agreement and fails to cure such breach to Cygna Labs's reasonable satisfaction within thirty (30) days following receipt of Cygna Labs's notice thereof. Upon any termination of this Agreement or a license granted hereunder, Licensee shall immediately cease use of the applicable Software and certify in writing to Cygna Labs within thirty (30) days after termination that Licensee has destroyed or returned to Cygna Labs such Software and all copies thereof. Termination of this Agreement shall not limit either party from pursuing any remedies available to it, including injunctive relief, or relieve Licensee of its obligation to pay all fees that have accrued or have become payable by Licensee hereunder.

1.12 Payment and Taxes.
Licensee shall make all payments in full within thirty (30) days from the date of the applicable invoice. Any amounts payable by Licensee that remain unpaid after the due date shall be subject to a late charge equal to 1.5% of the invoice amount per month from the due date until such amount is paid, or the maximum rate permitted by law if less. The fees listed may not include taxes; if Cygna Labs is required to pay sales, use, property, value-added or other taxes based on the Software or services provided under this Agreement or on Licensee's use of Software or services, then such taxes shall be billed to and paid by Licensee. This section does not apply to taxes based on Cygna Labs income.

1.13 General.
This Agreement will be construed under the laws of the State of Delaware, except for that body of law dealing with conflicts of law and the U.N. Convention of Contracts for the Sale of International Goods, which shall not apply. In the event there is a dispute concerning the subject matter of this Agreement, the proper venue shall be the state and federal courts in Wilmington, Delaware, United States of America. Each party hereby waives opposition to jurisdiction in such court. Service of process can be done in accordance with the governing law of the Agreement. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by the other party, which waiver shall be effective only with respect to the specific obligation described therein. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect.

SECTION 2. TRIAL EVALUATION TERMS AND CONDITIONS.

The provisions of this Section 2 shall apply to Software downloaded for temporary and/or trial use.

2.1 License.
Subject to the terms and conditions of this Agreement, the Software is licensed, not sold to Licensee by Cygna Labs for an evaluation period of seven (7) days from the download date ("Evaluation Period"). (A). Licensee may use the Software for its own internal evaluation and for no other purpose. (B). Licensee's opportunity for a free evaluation of the Software is limited to one Evaluation Period per release of the Software. (C). There is no fee for Licensee's use of the Software in accordance with this Agreement during the Evaluation Period, however, Licensee is responsible for any applicable shipping charges or taxes which may be incurred under this Agreement, and any fees which may be associated with usage beyond the scope permitted herein. (D). Licensee acknowledges that it is downloading the Software with the intent to purchase a perpetual license to use the Software upon completion of a successful evaluation of such. A Cygna Labs sales representative may contact Licensee after the download to discuss Licensee's purchase of a perpetual license.

2.2 “AS-IS” Warranty.
Cygna Labs warrants that it or its licensors retain(s) all intellectual property rights in the Software and any accompanying written materials provided by Cygna Labs, including but not limited to copyright, and that it has the legal right to grant Licensee the License granted under this Agreement. LICENSEE AND CYGNA LABS AGREE THAT THE SOFTWARE IS PROVIDED “AS IS” AND UNSUPPORTED, AND THAT CYGNA LABS MAKES NO WARRANTY AS TO THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

SECTION 3. “FULL” LICENSE TERMS AND CONDITIONS.

The provisions of this Section 3 shall apply to Software licensed with no time limits.

3.1 LICENSE.
Subject to the terms and conditions of this Agreement, and in consideration for Licensee's payment of the applicable license fees, Cygna Labs hereby grants to Licensee, and Licensee accepts from Cygna Labs, a perpetual, non-exclusive, non-transferable and non-sublicensable right to use the Software. This license consists of the right for Licensee to install, use, access, run, or otherwise interact with the Software within the scope of license granted, for Licensee's own internal business operations, and in accordance with the related Documentation. Licensee may also make a reasonable number of additional copies of the Software solely for non-productive archival purposes, so long as neither the original and a copy nor two copies of the same license are in use at the same time, and so long as each copy contains all titles, trademarks, and copyrights and restricted rights notices as in the original. Nothing in this Agreement entitles Licensee to receive source code for any part of the Software.

3.2 Maintenance And Other Services.
During any Maintenance Period and for the applicable fees, Cygna Labs shall provide Licensee the Maintenance Services as listed in this Section 3.2. The “Maintenance Period” is a twelve (12) month period. The first Maintenance Period begins on the date of the first invoice for the Software and ends twelve (12) months thereafter. Each Maintenance Period shall automatically renew for another twelve (12) months unless the renewal has been cancelled by either party's giving written notice at least sixty (60) days prior to the first day of the renewal Maintenance Period. Maintenance fees shall be due in advance of renewal. Cygna Labs will provide other Services (other than Maintenance Services) subject to availability and under the terms and conditions, including service rates, as indicated on the applicable ordering document.

Maintenance Services consist of the following: Cygna Labs shall make available to Licensee new versions and releases of the Software, including Software corrections, enhancements and upgrades, if and when Cygna Labs makes them generally available without charge as part of Maintenance Services for the Software. Cygna Labs shall respond to unlimited communications from Licensee that report software failures not previously reported to Cygna Labs. Cygna Labs shall respond to a reasonable number of communications from Licensee that request consultation on the operational/technical aspects of the Software. Licensee shall have access to Cygna Labs's Technical Support Web site at https://portal.cygnalabs.com/support. Maintenance Services for Software, Maintenance Services are available during standard support hours as indicated on Cygna Labs's Technical Support Web site. For all Software, Cygna Labs's Maintenance Services shall be available via the web, email, or telephone. During standard support hours, Cygna Labs will respond within twenty-four (24) hours to a call from Licensee which reports a critical Software condition which significantly impacts Licensee's production environment or which makes the use or continued use of the Software impossible.

3.3 Limited Warranty.
Cygna Labs warrants that for a period of thirty (30) days from the date of initial delivery (i) the media provided by Cygna Labs, if any, on which the Software is recorded will be free from material defects in materials and workmanship under normal use, and (ii) the operation of the Software, as provided by Cygna Labs, will substantially conform to the Documentation applicable to the Software.

THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF, AND CYGNA LABS HEREBY DISCLAIMS, ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

Licensee must report in writing any breach of the foregoing warranties to Cygna Labs during the warranty period, and Licensee's exclusive remedy, and Cygna Labs's sole obligation, for any such breach of warranty shall be for Cygna Labs to replace defective media and to correct or provide a workaround for reproducible errors that cause a breach of the warranty within a reasonable time considering the severity of the error and its effect on Licensee, or, at Cygna Labs option, refund the license fees paid for the nonconforming Software upon return of such Software to Cygna Labs and termination of the related license hereunder.

3.4. Usage Verification.
At Cygna Labs's request, but not more frequently than annually, Licensee shall furnish Cygna Labs with a document signed by Licensee's authorized representative verifying Licensee's usage of the Software. Licensee will permit Cygna Labs to review Licensee's deployment and use of the Software for compliance with the terms of the license agreement at Cygna Labs's expense. Any reviews shall be scheduled at least 15 days in advance, shall be conducted during normal business hours at Licensee's facilities, and shall not unreasonably interfere with Licensee's business activities. If Licensee's use of the Software is found to be greater than contracted for, Licensee will be invoiced for the additional licenses or license upgrades (based on the applicable units of measure, e.g., users or servers) and the unpaid license fees shall be payable in accordance with this Agreement. Additionally, if the unpaid fees exceed 5% of the license fees paid for the subject Software, then Licensee shall also pay Cygna Labs's reasonable costs of conducting the audit.