pmweb eula orig (01534460-4).RTF

1. LICENSE. Subject to your payment of the License Fees, PMWeb grants to you, solely for your own internal business purposes, a non-exclusive, non-transferable, non-sub licensable, perpetual (except as set forth in Section 4 below) license to use the Software, in object code form. Additional technical support and subscription update coverage may be obtained by you for the Software in accordance with PMWeb’s then-current plans and procedures, and at PMWeb’s then-current published prices. PMWeb licenses are specific to a single URL selected by you. You may not request a change to the URL and transfer the licenses to a new URL except at the annual renewal date.

2. INTELLECTUAL PROPERTY OWNERSHIP. The Software and Documentation is owned by PMWeb and its licensors and is protected by United States and foreign copyright laws and trade secret laws as set forth at section 3, below, and related international treaty provisions. You acknowledge and agree that except for your limited right to use the Software as granted in Section 1 above, PMWeb and its licensors have and shall retain the entire right, title and interest in and to all intellectual property rights arising from or relating to the Software whether or not merged into other materials. You shall not use the trademarks, service marks, logos, brand source distinctions and trade names of PMWeb without PMWeb’s prior written consent. No license is granted hereunder covering US or foreign patents, if any, of PMWeb or its licensors, except as expressly granted and limited herein.

3. COPY AND OTHER RESTRICTIONS. You shall not copy the Software except to make one copy of the Software exclusively for inactive backup or archival purposes. You may copy the Documentation for your own internal business purposes. You shall not modify, reverse engineer, de-compile or disassemble the Software, or create derivative works based upon the Software. You shall not use the Software in a timesharing arrangement nor encumber, rent, lease, transmit, distribute or transfer the Software to any third party for any purpose without PMWeb’s prior written consent. Transfer of Software or Documentation outside the country in which it was originally delivered to you is not permitted without PMWeb’s prior written consent and is subject to your compliance with all applicable export restrictions. You shall not remove any product identification, copyright notices or other notices or proprietary restrictions from the Software or Documentation nor disable, circumvent or misuse any security or access features. Upon reasonable notice to you, PMWeb shall have the right to inspect your use of the Software and audit your relevant records to verify your compliance with the terms of this Agreement. The Software and Documentation contains valuable trade secrets and proprietary know-how that belongs to PMWeb and its licensors and it is made available to you in strict confidence. ANY use or disclosure of the Software or of its algorithms, protocols or interfaces other than in strict accordance with this agreement is prohibited and may be actionable as a violation of PMWeb’s or its licensors’ proprietary rights.

4. TERMINATION. PMWeb shall have the right to terminate this Agreement and your right to use the Software and Documentation immediately upon your breach of this Agreement by email or other written notice to you. Upon termination, you shall cease using the Software and Documentation and shall return to PMWeb all copies of the Software and Documentation. Termination of this Agreement shall not limit PMWeb from pursuing any other remedies available to it, including, but not limited to, injunctive relief, and/or damages nor shall termination relieve you of your obligations to pay PMWeb all License Fees and other sums accrued prior to the effective date of termination. Client is responsible for all fees associated with the collection of amounts due from Client, including filing fees, reasonable attorney’s fees and disbursements.

5. LIMITATION OF LIABILITY AND EXCLUSION OF CONSEQUENTIAL DAMAGES. PMWeb’s liability, if any, shall not exceed the amounts Client has paid to PMWeb in the previous twelve (12) months pursuant to this Agreement PMWeb shall not be responsible to you, or any person claiming through you, for any type of incidental, punitive, indirect or consequential damages, including but not limited to, lost revenue, lost profits, business interruption, replacement goods, loss of technology, rights or services, loss of data or interruption or loss of use of services or equipment, even if advised of the possibility of such damages, whether arising under theory of contract, tort, strict liability or otherwise. PMWeb shall not be liable for any other damages and of avoidance of doubt, also confirms that it disclaims any warranty of merchantability or fitness for a purpose to the full extent allowable under governing law.

6. NON-SOLICITATION. The Client or through any other company shall not offer direct or indirect employment to any employee of PMWeb or any of its affiliates and/or partners, management group or portfolio group at any time during the term of this agreement (or subsequent agreements) or for two (2) years after their last PMWeb engagement. Violation of this clause can result in termination of the Client’s license and right to use the Software.

7. EXTERNAL CUSTOMIZATIONS AND REPORTING. PMWeb is not responsible to support any external customizations via scripts, functions, triggers, validations or custom reports that are created utilizing any reporting service (such as SQL) other than PMWeb Reporting. Additionally, PMWeb is not responsible to support any modifications to the software created through back end development including, but not limited to, changing stored procedures, functions and ASP pages. PMWeb disclaims all liability and responsibility for such external customizations and reports and has no liability to fix issues with external customizations and reports. PMWeb may assist in fixing external issues on a time and materials basis, but such assistance is not covered by the annual support and maintenance.

8. BINDING ARBITRATION. Any controversy or claim arising out of or relating to this agreement shall be determined by binding and final arbitration in accordance with the International Arbitration Rules of the American Arbitration Association. Class action lawsuits, class-wide arbitrations, private attorney-general actions, and any other proceeding where someone acts in a representative capacity aren’t allowed.

9. GOVERNING LAW. This agreement constitutes the complete agreement between the parties with respect to the Software and Documentation and is governed by the laws of the Commonwealth of Massachusetts, without giving effect to principles governing conflicts of law. It shall not be governed by the United Nations Convention on the international sale of goods, the application of which is expressly excluded.

ACKNOWLEDGMENT: Authorized representatives of ______________________________ (“Client”) have read the foregoing and all documents incorporated therein and agree and accept such terms effective as of this date.