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APP-NEA SOFTWARE LICENSE AGREEMENT

APP-NEA, LLC (“APP-NEA”) IS PROVIDING SOFTWARE (THE “SOFTWARE”) TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT EACH AND EVERY TERM SET FORTH IN THIS END USER LICENSE AGREEMENT (THIS “EULA”). PLEASE READ THE TERMS CAREFULLY BEFORE USING ANY APP-NEA SOFTWARE, BY CLICKING “ACCEPT” OR USING THE SOFTWARE OR ANY MODULE INDICATES THAT YOU ACCEPT THE TERMS CONTAINED HEREIN.

1. LICENSE. App-Nea grants you a non-exclusive, nontransferable, non-sublicensable license to use the Software solely in connection with the App-Nea product(s), subject to your compliance with the other terms and conditions of this EULA. No copies of the Software may be made. The App-Nea product(s) are any products sold by App-Nea. You may install, use, and run one copy of the Software on up to five computers at a time on your network.

2. INTELLECTUAL PROPERTY RIGHTS. The Software is owned by App-Nea and is protected by U.S. copyright laws and treaties as well as other intellectual property laws and treaties. You must not remove or alter any copyright or other proprietary rights notices, warranties, or disclaimers on any copies of the Software. The Software copy is licensed, not sold. This EULA does not grant you any rights in connection with any trademarks or service marks of App-Nea. You must not directly or indirectly use, copy, alter, or distribute the Software except as expressly permitted by this EULA. Title, interest, ownership rights, and intellectual property rights in and to the Software and accompanying printed materials shall remain in App-Nea and its suppliers.

3. RESTRICTIONS (a) No Transfer. You must not directly or indirectly rent, lease, lend, sublicense or in any way distribute or transfer any rights in this EULA or the Software (in whole or in part) to third parties without App-Nea’s written approval, and subject to written agreement by the recipient of the terms of this EULA.

(b) No Reverse-Engineering. You agree that you will not and will not attempt to, or allow any third party to (or make the Software available to any third party so that such party is able to), reverse engineer, decompile, defeat license encryption mechanisms, or disassemble the Software or otherwise attempt to derive or gain access to the source code of the Software in whole or in part.

4. NO MAINTENANCE OR SUPPORT. App-Nea is not required to provide any updates or maintenance or support services with respect to the Software, however, from time to time, App-Nea may make available a new version, updates, patches, upgrades, modifications, extensions, functional improvements, error corrections, enhancements, revisions, or changes to the Software (collectively “Updates”). You will install all Updates as soon as practicable after receipt.

5. TERMINATION. Either party may terminate this EULA effective immediately upon written notice. Upon termination, all licenses and licensed rights and authorizations granted in this EULA will immediately cease to exist and you must immediately discontinue all use of, and all activities with respect to the Software. This EULA automatically terminates without requiring written notice from App-Nea if you breach any of the terms of this EULA. The provisions set forth in the following sections, and any other right, obligation or provision under this EULA that, by its nature, should survive expiration or termination of this EULA, will survive any expiration or termination of this EULA: this Section 5, Section 2, Section 3, Section 6, Section 7, Section 11, Section 12 and Section 13.

6. DISCLAIMER OF WARRANTIES. THE SOFTWARE AND OTHER INFORMATION PROVIDED TO YOU HEREUNDER ARE PROVIDED "AS IS" AND WITHOUT ANY WARRANTY OF ANY KIND, AND APP-NEA AND ITS SUPPLIERS HEREBY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

App-Nea does not warrant that the Software will be error-free, uninterrupted or free from viruses or other harmful components, defects or deficiencies or that the software will achieve any intended result, be compatible or work with any software systems, or other services. Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.

7. LIMITATION OF LIABILITY. THIS LIMITATION OF LIABILITY APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT WILL APP-NEA OR ITS THIRD-PARTY SUPPLIERS AND LICENSORS BE LIABLE FOR ANY DAMAGES, LOSSES, OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES, INCLUDING FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION OR DATA) ARISING OUT OF THIS EULA OR THE USE OF OR INABILITY TO USE THE SOFTWARE, UNDER ANY LEGAL OR EQUITYABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF APP-NEA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, AND NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, APP-NEA’S, AND ITS THIRD-PARTY SUPPLIERS’ AND LICENSORS’ ENTIRE LIABILITY ARISING OUT OF THIS EULA SHALL BE LIMITED TO THE AMOUNT PAID BY YOU TO APP-NEA FOR THE SOFTWARE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.

Some jurisdictions do not allow the foregoing limitations of liability, so the foregoing limitations may not apply to you.

8. AUDIT PROCEDURE. App-Nea or its nominee (including accountants and auditors) may, on 24 hours’ prior notice (by email is sufficient), inspect and audit your use of the Software under this EULA at any time. All audits will be conducted during regular business hours and in a manner that does not unreasonably interfere with your business operations. You shall make available all such books, records, equipment, information and personnel and provide such cooperation and assistance, as may be reasonably requested by or on behalf of App-Nea with respect to such audit.

9. EXPORT PROHIBITION. You must not directly or indirectly export, reexport, or release, or authorize the export, reexport, or release of either the Software or any copy or direct product thereof, in violation of any applicable United States export laws, restrictions or regulations, including without limitation those of the U.S. Department of Commerce and the U.S. Department of Treasury. Without limiting the foregoing, you must not export the Software to Cuba, Iran, Iraq, Libya, North Korea, Rwanda or to any Group D:1 or E:2 country (or any national of such country) specified in the then-current Supplement No. 1 to Part 740 or in the Commerce Control List in the then-current Supplement No. 1 to Part 738, or in violation of the embargo provisions in Part 746 of the U.S. Export Administration Regulations (or any successor regulations or supplement).

10. DATA COLLECTION AND PRIVACY: You agree that App-Nea may collect anonymous statistics, such as the sequence of features used, to analyze use patterns and/or user trends to support its efforts to improve the Software. By using the Software, you agree to such data collection and further agree to allow log files of the statistics, of a relatively small and reasonable size, to be stored on your computer as a sequence of numbers, for a reasonable length of time. You understand and agree that by using the Software, you may be electronically transferring information of a confidential nature. By using this software, you agree that you meet the applicable legal requirements to do so and that you are solely responsible to protect any confidential information kept or retained on your local machine or servers, including in accordance with all applicable laws, rules and regulations.

11. CONFIDENTIALITY. In connection with this EULA, each of App-Nea and you (the “disclosing party”) may disclose or make available Confidential Information to the other party (the “receiving party”). “Confidential Information” means information in any form or medium (whether oral, written electronic or other) that the disclosing party considers confidential or proprietary, including information consisting of or relating to the disclosing party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, pricing, and other information with respect to which the disclosing party has contractual or other confidential obligations, whether or not marked, designated or otherwise identified as “confidential.” Confidential Information shall not include information that the receiving party can demonstrate was rightfully known by receiving party without restriction on use or disclosure prior to such information being disclosed to receiving party in connection with this EULA; or was or became generally known by the public other than by receiving party’s or it’s representative’s non-compliance with this EULA. As a condition to being provided with any disclosure of or access to Confidential Information, the receiving party shall not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under this EULA; not disclose or permit access to Confidential Information other than to its representatives who need to know the Confidential Information and are bound by a duty of confidentiality and restricted use obligations at least as protective as set forth herein; and shall safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its own sensitive information and in no event less than a reasonable degree of care. Notwithstanding the foregoing, if receiving party is compelled by applicable law or legal subpoena to disclose any Confidential Information then, to the extent permitted by applicable law, the receiving party will promptly notify the disclosing party of such requirement so that disclosing party can seek a protective order or other remedy.

12. No Implied Rights. Except for the limited rights and licenses expressly granted under this EULA, nothing in this EULA grants, by implication, waiver, estoppel or otherwise, to you or any third party any intellectual property rights or other right, title or interest in and to the Software or related documentation, including any manuals, handbooks, and installation guides that App-Nea makes available to you in connection with the Software.

13. GENERAL. (a) This EULA will be governed by and construed in accordance with the laws of the United States and the State of New York, without giving effect to any conflicts or choice of laws principles that would require the application of the laws of a different jurisdiction. The parties expressly exclude the application of the 1980 United Nations Convention on the International Sale of Goods (if applicable). At App-Nea’s sole discretion, disputes under this Agreement may be resolved by arbitration or mediation provided that it occurs in the United States.

(b) This EULA, together with App-Nea’s Subscription Agreement, User Terms and Conditions and Privacy Policy, constitute the entire agreement between App-Nea and you concerning the subject matter hereof and supersedes any other communications or advertising with respect to the Software.

(c) This EULA may be modified unilaterally by App-Nea or only by written agreement signed by authorized representatives of you and App-Nea. If any provision of this EULA is held invalid, the remainder of this EULA shall continue in full force and effect. A waiver by either party of any term or condition of this EULA or any breach thereof must be in writing. No waiver in any one instance shall be deemed a waiver of similar or dissimilar terms or conditions at the same or at any prior or subsequent time.

(d) The relationship between App-Nea and you is that of independent contractors. Nothing contained in this EULA will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties hereto, and neither party hereto shall have authority to contract for or bind the other party in any manner whatsoever.

(e) Any notice, request, consent, claim, demand, waiver or other communication under this EULA shall have legal effect only if in writing and addressed to App-Nea at its corporate headquarters and to you at the address indicated in App-Nea’s records, which addresses can be changed at any time in accordance with this provision. Notices sent in accordance with this Section 13(e) will be deemed effectively given:
(i) when received, if delivered by hand, with signed confirmation of receipt;
(ii) when received, if sent by a nationally recognized overnight courier, signature required;
(iii) when sent, if by facsimile or email, in each case, with confirmation of transmission, if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the 5th day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

(f) This EULA is for the sole benefit of App-Nea and you and App-Nea’s and your respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this EULA.

(g) You acknowledge and agree that a breach or threatened breach by you of any of your obligations under Section 3 and Section 11 of this EULA would cause App-Nea irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, App-Nea will be entitled to equitable relief, including in a restraining order, an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

(h) This EULA may be executed in counterparts, each of which is deemed an original but all of which together are deemed to be one and the same instrument.