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<br />Liccnsee Responsibility for Use of Software: Error Detection Procedures. Licensee
<br />is solely responsible for selection of the Licensed Software and computer
<br />equipment appropriate to Licensee's needs, proper use of the Licensed Software by
<br />qualified personnel, measures to prevent loss of data, and all other matters under its
<br />conl Licensee understands and agrees that the Licensed Software and services
<br />pr01 by ACTIVEG (whether under ACSP or otherwise) are intended solely to
<br />aid Isee and its personnel in the management, maintenance and administration
<br />of j, . erations and are not to be independently relied upon in connection with
<br />adherence to governmental or other health and safety standards, Without limiting
<br />the foregoing, responsibility for the health and safety of Licensee's employees and
<br />others who may be present in Licensee's facilities or come into contact with
<br />Licensee's plant or equipment, including without limitation responsibility for
<br />personal injury or loss oflife, and compliance with laws, regulations, and insurance
<br />procedures shall remain with Licensee. ACTIVEG does not represent that the
<br />Licensed Software complies with or embodies any health or safety-related
<br />regulatory procedures, Licensee agrees that, with respect to use of the Licensed
<br />Software and any modification, customization or formatting of the Licensed
<br />Software, whether done by Licensee or by ACTlVEG at Licensee's request, in
<br />connection with any application relating to health, safety, environmental
<br />compliance, hazardous material management or any other application that poses
<br />health or safety risks, (a) ACTIVEG does not purport to have particular expertise in
<br />health, safety, environmental compliance, hazardous material management or any
<br />other application that poses health or safety risks; and (b) Licensee will bear
<br />complete responsibility for ascertaining that the Licensed Software and any such
<br />modification, customization or formatting of the Licensed Software is appropriate
<br />for use in such applications,
<br />
<br />ACTIVEG shall under no circumstances be liable for any claim or demand by any
<br />third party based on or related to Licensee's use of the Licensed Software,
<br />including without limitation persons using the facilities or services of Licensee or
<br />their heirs or dependents, Licensee agrees, at its expense, to indemnifY, defend,
<br />and hold harmless ACTIVEG, its officers, employees, agents, and representatives
<br />from and against any and all liability, loss, damages, costs, expenses or claims
<br />(including reasonable attorneys' fees) incurred or sustained by ACTIVEG or such
<br />officers, employees, agents, or representatives as a result of such claim or demand.
<br />
<br />6. Misrellaneous
<br />
<br />Ret \fConfidential Information, Upon termination of this Agreement, for any
<br />rea! Licensee shall immediately cease using the Licensed Software and shall
<br />eith", I durn to ACTIVEG or destroy all copies of the Licensed Software or other
<br />Confidential Information of ACTIVEG under Licensee's control, including without
<br />limitation, all copies that are fixed or running in machines controlled by Licensee,
<br />Within ten (10) days after any such termination, Licensee will provide ACTIVEG
<br />with a written statement signed by a duly authorized officer of Licensee certifYing
<br />that Licensee has complied with the foregoing sentence,
<br />Notices. Any notices required or permitted under this Agreement shall be in
<br />writing and shall be deemed properly given if personally delivered or sent by
<br />United States first class or certified mail (return receipt requested) postage prepaid
<br />or by reputable express courier. All notices shall be addressed as set forth on the
<br />cover page or to such other address as .the addressee shall have furnished to the
<br />addressor in accordance with this provision. Any notices given hereunder shall be
<br />deemed to have been received on the earlier of actual receipt or three (3) days after
<br />depositing in the mail or with the courier service.
<br />
<br />Severability. If any of the provisions or portions thereof of this Agreement are
<br />determined to be invalid, illegal or unenforceable by a court of competent
<br />jurisdiction under any applicable statute or rule oflaw, such provisions or portions
<br />thereof shall be severed from this Agreement and the remaining provisions shall
<br />remain in full force and effect
<br />
<br />Indeoendent Contractor, The relationship between ACTIVEG and Licensee shall
<br />be that of independent contractors, Nothing contained in this Agreement shall be
<br />construed to create a partnership, joint venture or agency relationship, and,
<br />notwithstanding anything else herein, neither party shall have the right to incur
<br />(and will not attempt to incur) any obligation or liability on behalf of the other
<br />party.
<br />
<br />No verlModification, No waiver, alteration, modification or cancellation of
<br />any :he provisions of this Agreement shall be binding on ACTIVEG unless
<br />ma, 1 writing and signed by an authorized representative of ACTIVEG,
<br />AC ~G's failure at any time to require performance by Licensee of any
<br />provision hereof shall not affect in any way ACTIVEG's right to require such
<br />performance at any time thereafter,
<br />
<br />Rev. 112001
<br />
<br />Remedies. No remedy referred to in this Agreement is intended to be exclusive,
<br />but each shall be cumulative and in addition to any other remedy referred to herein
<br />or otherwise available <It law, in equity or otherwise,
<br />
<br />Governing Law. This Agreement shall be governed by and construed and entorced
<br />in accordance with the laws of the State of Texas,
<br />
<br />Jurisdiction. The parties agree that any action with respect to this Agreement may
<br />be brought in a court of competent subject matter jurisdiction located in the State of
<br />Arizona, USA
<br />
<br />Assignment This Agreement shall be binding upon, and inure to the benefit of,
<br />ACTIVEG and its legal representatives, successors and assigns, This Agreement
<br />and the Licensed Software to which it applies may not be assigned, sublicensed or
<br />otherwise transterred by Licensee without ACTIVEG's prior written consent
<br />
<br />Force Maieure. ACTIVEG shall not be liable for any delays in the performance of
<br />any of its obligations hereunder due to causes beyond its reasonable control,
<br />including, but not limited to fire, strike, war, riots, acts of any civil or military
<br />authority, acts of God, judicial action, tmavailability or shortages of labor,
<br />materials or equipment, failure or delay in delivery by suppliers or delays in
<br />transportation.
<br />
<br />Eauitable Relief. The covenants and agreements of Licensee in Sections 2 and 3 of
<br />this Agreement are of a special and unique character, and Licensee acknowledges
<br />that money damagcs alone will not reasonably or adequately compensate
<br />ACTIVEG for any breach of such covenants and agreements. Therefore,
<br />ACTIVEG and Licensee exprcssly agree that in the event of the breach or
<br />threatened breach of any such covenants or agreements, in addition to other rights
<br />or remedies which ACTIVEG may have, at law, in equity or otherwise, ACTIVEG
<br />shall be entitled to injunctive or other equitable relief compelling specific
<br />performance or, and other compliance with, the terms of such Sections.
<br />
<br />Taxes, The License Fees and any other fees due hereunder are exclusive of all
<br />federal, state, municipal and other governmental excise, sales, use, customs, value
<br />added or other taxes, fees or duties now in force or enacted in the future, including
<br />without limitation, all taxes in connection with the use, ownership and licensing of
<br />software, but excluding taxes based on ACTIVEG's income. Licensee shall pay on
<br />or before their due datcs all such taxes, fees, duties and charges which arise out of
<br />or in connection with this Agreement or any license granted herein. If ACTIVEG
<br />is required at any time to pay any such tax, fee, duty or charge, Licensee will
<br />promptly reimburse ACTIVEG thereof. At ACTIVEG's discretion, any such taxes,
<br />fees and duties may be added to the price for any Licensed Software provided
<br />hereunder or may be billed separately,
<br />
<br />Shiooing. All Licensed Software delivered to Licensee hereunder shall be shipped
<br />F.O.B. ACTIVEG's facility to the address set forth on the front of this Agreement
<br />and Licensee shall pay all shipping, transportation and insurance charges. All risk
<br />of loss or damage for the Licensed Software shall pass to Licensee upon delivery
<br />by ACTIVEG to the freight carrier, to Licensee or to Licensee's agent for delivery,
<br />whichever first occurs,
<br />
<br />U.S. Restricted Rights. If Licensee is a government agency, Licensee
<br />acknowledges and agrees that the Licensed Software is Commercial Computer
<br />Software, as defined in subparagraph (a)(I) of DFAR section 252.227-7014,
<br />"Rights in Noncommercial Computer Software and Noncommercial Computer
<br />Software Documentation," and that use, duplication or disclosure by the
<br />Government is subject to restrictions as set forth in this Agreement.
<br />Contractor/Manufacturer: aetiveG, LLC, P,O, Box 957, Mesa, AZ 85211.
<br />
<br />Records Insoection, Licensee shall maintain books and records in connection with
<br />the activity under this Agreement. Such records shall include at a minimum the
<br />number of licenses purchased and being used by Licensee, ACTIVEG may, at its
<br />expense, audit the records of Licensee to ensure compliance with the terms of this
<br />Agreement. Any such audit shall be conducted during regular business hours at
<br />Licensee's offices and shall not interfere unreasonably with Licensee's activities, If
<br />any audit reveals that Licensee has underpaid license and/or maintenance fees to
<br />ACTIVEG, Licensee shall be invoiced for such underpaid fees based on
<br />ACTIVEG's List Price in effect at the time the audit is conducted. If the underpaid
<br />fees are in excess of five percent (5%), then Licensee shall pay ACTIVEG's
<br />reasonable costs of conducting the audit. Audits shall be made no more than twice
<br />per calendar year,
<br />
<br />Copyright@2001,activeG. LLC
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