Software License and Purchase Agreement

Exacq Technologies, Inc. ("Exacq"), located at 11955 Exit Five Parkway, Bldg. 3 Fishers, IN 46037 USA and the Company identified in the Purchase Order acknowledging this Agreement or a subsequent invoice from Exacq identifying Company, hereby agree as of the earlier of the date of the Exacq invoice (the "Effective Date") as follows.  Company and Exacq may be referred to individually as a "Party" and collectively as the "Parties."
BY ACTIVATING THE SOFTWARE USING THE LICENSE KEY(S) PROVIDED BY EXACQ OR IN THE CASE OF CLIENT SOFTWARE DOWNLOADED FOR USE ON INDIVIDUAL COMPUTERS, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE ACTING AND ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, AND YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO LEGALLY BIND THE COMPANY TO THESE TERMS AND CONDITIONS.  THE TERMS "YOU" AND "YOUR" SHALL REFER TO YOUR COMPANY, AND TO YOU IN CONNECTION WITH YOUR USE AS A USER ON BEHALF OF YOUR COMPANY.  IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SOFTWARE.
BY ACTIVATING THE SOFTWARE USING THE LICENSE KEY(S) PROVIDED BY EXACQ OR IN THE CASE OF CLIENT SOFTWARE DOWNLOADED FOR USE ON INDIVIDUAL COMPUTERS, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND INTEND TO BE BOUND BY ALL OF THE TERMS, CONDITIONS, AND NOTICES CONTAINED HEREIN, AS WELL AS ANY TERMS, CONDITIONS, AND NOTICES CONTAINED IN THE EXACQ POLICIES POSTED IN VARIOUS LOCATIONS ON THE EXACQ.COM WEBSITE (THE "EXACQ POLICIES"), JUST AS IF YOU HAD SIGNED THIS AGREEMENT.  If you do not accept this Agreement or the Exacq Policies, You are not licensed or otherwise permitted to use the Software, and you must not install or activate the Software. 
Exacq may at any time modify the terms and conditions of this Agreement, or any part thereof, or may impose new conditions to Company's use of the Software.  Except as otherwise stated herein, any modification to this Agreement shall be effective ten (10) days after it initially is posted at http://www.exacq.com/termsofuse.  Your continued use of the Software after any such modification will be conclusively deemed acceptance of such modification.  The Agreement may not otherwise be amended except in a writing signed by Company and Exacq.

1.	Grant of License:  In exchange for the Software License Fees established by Exacq or its distributors for Company, Exacq hereby grants to Company a perpetual, non-exclusive, non-transferable, limited right and license to use the software identified on a purchase order or similar document from Company or as set forth on Schedule A ("Software") for Company's internal use in connection with its video surveillance and recording system. Company may not alter, modify or adapt the executable code portions of Software, including, but not limited to, translating, reverse engineering, decompiling, disassembling, or creating derivative works.  Company may not extract any JavaScript code or use such code for any other purpose.  Company may not, except as expressly agreed in writing to the contrary, remove or modify any of Exacq's proprietary marking or restrictive legends placed on the Software.  

2.	Maintenance Services:  Subject to Company’s payment of the Software License Fees therefore and as long as Company is not in violation of and is a party to a current Agreement with Exacq for the Software, Exacq shall provide Maintenance Services to Company according to Exacq’s published technical support policies, which Exacq may revise from time to time in its discretion.  Exacq shall only be obligated to provide Maintenance Services for the current version of the Software and the immediately preceding version.  Company shall establish one (1) internal support coordinator to whom all users shall be instructed to direct all questions and problems regarding use, operation and maintenance of the Software.  Company agrees that only fully trained support coordinator(s) familiar with the use of the Software shall be entitled to contact Exacq for Maintenance Services.  Company must pay the applicable annual fee to receive Maintenance Services for the Software.

3.	Hardware:  Subject to Company's payment of all fees therefore, Exacq shall provide the third party hardware to Company as may be agreed in writing by Exacq and Company.  Sales shall be f.o.b. point of shipment at the manufacturer's or other third party distributor's facility. Company shall pay all freight charges.  Title and risk of loss shall pass to Company as soon as the goods have been placed on board the carrier at the point of shipment.  Company assumes responsibility for effecting the export of the Products including obtaining any required export licenses, for proper use of the export licenses and for due performance for all terms and conditions of such export licenses. 

4.	Title:  Exacq retains all right, title and interest in and to the Software and any deliverables produced in connection with this Agreement.  Company obtains no rights to such Software and any deliverables produced hereunder except for the limited license rights granted.

5.	Term:  This Agreement shall commence on the Effective Date and shall remain in force for two (2) years unless earlier terminated in accordance with Section 12, and shall automatically renew for successive one (1) year terms unless a Party provides the other Party thirty (30) days notice in advance of expiration of the Party's intent not to renew.  

6.	Professional Services:  Exacq shall render services to Company as set forth herein, on applicable statements of work, and as the parties may otherwise agree ("Services").  Services are separate from Maintenance Services, for which Exacq charges additional fees.  Services may include integration, installation, configuration, development of software applications and functionality, enhancements, and customization services as requested by Company and as agreed by Exacq for fees to be established.  If, in the course of rendering the Services, Exacq creates and delivers to Company any Work Product, such Work Product shall remain the exclusive property of Exacq and Company shall have a nonexclusive, nontransferable license to use the Work Product solely in connection with its business on the same terms and conditions under which Exacq licenses the Software to Company hereunder.

7.	Warranties and Disclaimers:
a.	Warranty:  Exacq warrants the Software will perform in accordance with Exacq's published documentation for 90 days from the Effective Date (the "Software Warranty Period").  All third party services, software, and hardware is warranted exclusively by the third party service provider, manufacturer, or developer thereof (if at all) and Exacq shall not be liable for such third party services, software, or hardware procured or used by Company in connection with the Software, whether or not such services, software and hardware are arranged, or in the case of hardware and software, otherwise provided by Exacq.  Company’s exclusive remedy for breach of the warranty in this Section 7 shall be, in Exacq's sole discretion, the repair or replacement of the Software.  If repair or replacement is not possible within forty-five (45) days following Exacq’s receipt of written notice of a breach of the warranty, Company may terminate the license to the defective Software by returning it to Exacq, purging all copies from its computer systems and providing written certification of the same to Exacq.  Company shall then be entitled to receive a refund of the license fees paid by Company for the Software on which the warranty claim is made and the related fees for Maintenance Services.  Exacq warrants that the Maintenance Services and the Services shall be performed in a good and workmanlike manner in conformity with industry standards for a period of thirty (30) days after the completion of such services.  Any claim relating to a breach of the warranty for any such services must be made within such applicable thirty (30) day period of time (the "Services Warranty Period").  The exclusive remedy relating to any claim for a breach of the warranties under this Section 7 shall be limited to, in Exacq's sole discretion, the performance of additional Maintenance Services or Services to make the non-conforming services conform to such warranty, or a refund of all fees paid in connection with the defective Software, Services or Maintenance Services.  
b.	Warranty Disclaimer.  Exacq is not responsible for conditions or applications over which Exacq has no control. Defects or problems as a result of such conditions or applications are not the responsibility of Exacq. Such conditions include normal wear and tear; catastrophe; fault or negligence of the user or a party other than Exacq; improper installation, application, storage, maintenance, or use of the Software or any third party software or hardware; other causes external to the Software; or failure to conform to any applicable recommendations of Exacq.  The warranty does not cover, and Exacq does not warrant, batteries of any type used in connection with other hardware furnished.  Exacq does not warrant that: (a) the Software or Services are or will be free of bugs or errors; (b) the use of the Software will be uninterrupted or error free; (c) the Software, Maintenance or other Services will meet Company’s needs; or (d) the Software will operate in the hardware or system combinations which may be selected by Company.  The Software, Hardware and Services Deliverables are not designed or intended for use in hazardous or other situations which require one or more of fail-safe, highly available, Any claim for breach of warranty shall be made within thirty (30) days of the expiration of the Software Warranty Period or Services Warranty Period, as the case may be, by providing written notice thereof to Exacq together with a detailed explanation of the purported error.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, EXACQ DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THOSE OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATED TO THE SUBJECT MATTER HEREOF.  Exacq reserves the right to replace any hardware or other product with new, refurbished or remanufactured product. Exacq will not be responsible for labor costs of removal or reinstallation of Software, deliverable relating to any Services, or any hardware.
c.	The preceding subsections of this limited warranty set forth the exclusive remedies for claims based on any defect, failure, malfunction, or any other performance or nonperformance of any Software, Service, hardware or other product, whether the claim is in contract, indemnity, warranty, tort (including negligence), strict liability or otherwise, and however instituted.  

8.	Limitation of Liability:  In no event shall Exacq be liable TO COMPANY OR ANY THIRD-PARTY UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, OR LOST PROFITS OR REVENUES, loss of use of the products or any associated equipment; damage to associated equipment; cost of capital, substitute products, facilities, or services; downtime costs; or claims of COMPANY's customer for such damage, WHETHER IN AN ACTION IN OR claim of any kind, whether as a result of breach of contract, warranty, indemnity, tort (including negligence), strict liability, or otherwise, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH HARM OR DAMAGES OR SUCH DAMAGES WERE FORESEEABLE.  COMPANY ACKNOWLEDGES AND AGREES THAT THE SOFTWARE AND HARDWARE SOLD AND LICENSED UNDER THIS AGREEMENT ARE NOT INTENDED TO BE USED IN THE OPERATION, SECURITY, OR SURVEILLANCE OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES OR OTHER EQUIPMENT IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, AND COMPANY'S USE IN SUCH APPLICATIONS SHALL BE ENTIRELY AT COMPANY'S RISK; AND EXACQ SHALL HAVE NO LIABILITY FOR AND SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED FOR SUCH PURPOSES.  company agrees that regardless of the form of action (whether as a result of breach of contract, warranty, indemnity, tort (including negligence), strict liability, or otherwise), exacq's maximum liability arising out of, connected with, or resulting from the transaction, or from EXACQ's performance or breach thereof, or from the design, manufacture, sale, resale, installation, repair, operation, or use of any products furnished herein, shall not exceed the amount OWED TO Exacq (or as applicable its dealer or distributor) as consideration for the License granted herein AND ASSOCIATED MAINTENANCE FEES in the preceding twelve months.  SUCH AMOUNTS shall be Company’s exclusive remedy for Exacq’s breach of contract, A CLAIM OF warranty OR indemnity, OR A CLAIM BROUGHT IN tort (including negligence), strict liability, or otherwise.  Any such liability shall terminate upon the expiration of the applicable warranty period.  No action claiming a breach of this AGREEMENT may be brought by EXACQ more than one (1) year after the date of the alleged breach.  

9.	Disclaimer: Exacq makes no claim or warranty of any kind CONCERNING ANY SOFTWARE, HARDWARE OR OTHER PRODUCT'S CAPABILITIES, potential, or effectiveness to DETER, detect, minimize, or in anyway prevent THEFT, personal injury, DEATH, property damage, or loss of any kind whatsoever. Exacq is not responsible for any personal injury, DEATH, damage, theft or loss related to the product or its use or for any harm, whether physical or mental, related thereto. Exacq does not represent OR WARRANT that the product may not be EITHER compromised or circumvented.  Exacq does not represent OR WARRANT that the product will OR IS EFFECTIVE TO prevent or REDUCE THE RISK OF personal injury, bodily injury, death, and/or damage to property of COMPANY or others, INCLUDING WITHOUT LIMITATION SUCH HARM resulting from THEFT, burglary, robbery, fire, or other ACT OR OMISSION.  Exacq does not represent OR WARRANT that the product will provide SUFFICIENT OR ANY warning, DETECTION, protection OR IDENTIFICATION.  Company understands that SOFTWARE, HARDWARE, AND SERVICES DELIVERABLES may NOT reduce the risk of events such as burglary, robbery, fire, or similar events, AND FURTHER THAT THE SOFTWARE, HARDWARE, AND/OR SERVICES DELIVERABLES ARE not insurance or a guarantee that such events will not occur or that there will be no personal injury, bodily injury, death, and/or damage to property of COMPANY or others as a result. Exacq shall not be liable for any death, personal injury, property damage, or loss of any kind whatsoever to Company or others, whether directly, indirectly, incidentally, consequentially, or otherwise, caused by the operation, non-operation, functioning, malfunctioning, use, or misuse of the SOFTWARE, HARDWARE, SERVICES, OR OTHER PRODUCTS.  Exacq shall not be liable for any USE BY COMPANY, ITS AGENTS AND PERSONNEL OF IMAGES, VIDEO AND OTHER INFORMATION GATHERED BY THE SOFTWARE, HARDWARE, AND SERVICES DELIVERABLES.  EXACQ SHALL NOT BE LIABLE FOR ANY ORAL OR WRITTEN STATEMENTS, ADVICE OR OTHER INFORMATION BY ITS EMPLOYEES, AGENTS, DEALERS OR OTHER PERSONS, AND NONE OF THE FOREGOING SHALL BE CONSTRUED AS A WARRANTY. 

10.	Indemnification:  To the fullest extent allowed by law, Company shall indemnify and hold harmless Exacq, its agents, directors, officers, and employees from and against all claims, damages, losses, and expenses (including, but not limited to, attorneys’ fees and expenses, whether incurred in defending such a claim, in enforcing this agreement, or otherwise), in any manner arising out of, related to, or resulting from (A) the Software or its use or failure, including use of video, images, or other information captured by the Software, Hardware, and Services Deliverables; (B) performance of the Maintenance or other Services hereunder; (C) purchase, supply or use of goods from or by Company or Company 's personnel; (D) the Company's or Company's personnel's failure to ensure that all personnel comply with the provisions of this Agreement; and (E) the Company's or Company 's failure to comply with any terms, conditions, or provisions of this Agreement, including any claim, damage, loss or expense caused in whole or in part by any act or omission of Company, any subcontractor, Exacq, or anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, including, but not limited to any negligent, grossly negligent or willful acts or omissions, and regardless of whether or not such claim, damage, loss or expense is caused or alleged to be caused in whole or in part by the negligence or strict liability of Exacq or any other party to be indemnified hereunder.  If any claims are brought against Exacq or its agents or employees by any employee of Company, any subcontractor, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, the indemnification obligation of Company shall be absolute, and shall not be limited or affected in any way by any claims or benefits paid or payable by or for Company or any subcontractor under any workers’ compensation acts, disability benefit acts, or other employee benefit acts.  

11.	Assignment:  Neither Party may assign its rights or delegate its duties or obligations hereunder without the express consent of the other Party; provided, however, that Exacq may assign its rights or delegate its duties and obligations hereunder without Company's consent in the event of Exacq's reorganization, change of control, merger, or divestiture or sale of all or substantially all of the assets or business to which this Agreement relates.

12.	Termination:  This Agreement may be terminated by either Party upon the material breach of this Agreement by the other Party, which breach has not been cured within thirty (30) days from written notice by the non-breaching Party.  After termination of this Agreement, all amounts then owing to Exacq shall be immediately due and payable.

13.	Notices:  All notices given by either Party to the other Party under this Agreement shall be in writing, sent by certified mail, return receipt requested, to the address shown in the first paragraph of this Agreement.

14.	Applicable Law; Forum:  This Agreement shall be governed by, construed under, and enforced in accordance with the substantive laws of the State of Indiana, U.S.A., to the exclusion of any conflict of law or choice of law rule or principle to the contrary.  Any dispute arising under this Agreement may be exclusively brought and exclusively maintained in the State or Federal Courts situated in Indianapolis, Indiana, U.S.A., and each of the Parties hereby consents to and waives any objections to the exclusive and personal jurisdiction of, and venue in, such Courts.  Neither the uniform commercial code nor the U.N. Convention on Contracts for the International Sale of Goods shall apply to this Agreement or dealings between the Parties.

15.	Miscellaneous:  This Agreement constitutes the entire understanding between Company and Exacq regarding the Software license and Services, and contains the final, complete and exclusive statement of all representations made by Exacq regarding the Software license.  The terms of this Agreement shall prevail over any verbal and/or printed terms contained in any other material.  Exacq or Company shall not be bound by any representation, verbal promises or inducement of any kind unless set forth as part of this Agreement, except that a separate statement of work or addendum may exist between Exacq and Company for professional or other Services rendered by Exacq. No failure or delay of Exacq to exercise any rights or remedies under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any rights or remedies preclude any further or other exercise of the same or any other rights or remedies, nor shall any waiver of any rights or remedies with respect to any circumstances be construed as a waiver thereof with respect to any other circumstances.  If any provision of this Agreement shall be declared invalid or unenforceable, the remainder shall not be affected.
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