EAGLE RESEARCH CORPORATION SOFTWARE LICENSE AGREEMENT PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE DOWNLOADING, INSTALLING, OR USING THIS SOFTWARE. DOWNLOADING, INSTALLING, OR USING THIS SOFTWARE INDICATES YOUR ACCEPTANCE TO THESE TERMS AND CONDITIONS. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. GRANT OF LICENSE Eagle Research Corporation hereby grants to End User a nonexclusive and nontransferable license for use of the Software. Other license terms are available for End User’s desiring license terms such as those considered developmental. The Software is to be licensed for use by multiple users within a company utilizing Eagle’s manufactured line of monitoring hardware and software.. End Users may make copies of the Software for distribution throughout the licensing organization. All copies shall be subject to the provisions of this Agreement and all proprietary rights notices shall be reproduced in such copies. End User agrees not to engage in, cause or permit the reverse engineering, disassembly, decompilation or any similar manipulation of the Software. End User acquires only the right to use the Software as specified herein. All rights, title and interest in the Software shall at all times remain the property of Eagle Research Corporation or Eagle’s Licensee. I agree that I am not a competitor of Eagle Research Corporation. OWNERSHIP AND COPYRIGHT The Software is protected under the following copyright: Copyright © 2002-2003 Eagle Research Corporation. The Software is proprietary to Eagle Research Corporation and protected by copyright, under the United States copyright laws and certain international treaties. End User agrees that it is only acquiring the rights to use the Software as licenses herein, and that all title, ownership, and intellectual property rights not herein specifically granted are expressly reserved by Eagle Research Corporation. TERMINATION This license shall terminate automatically upon End Users breach of any of the terms described herein. Immediately upon termination End User shall cease using the SOFTWARE, and (ii) certify in writing to Eagle Research Corporation within thirty (30) days after such termination that End User has either destroyed, permanently erased or returned to Eagle Research Corporation the SOFTWARE, and all copies in all forms, partial and complete, in all types of media and computer memory and storage. WARRANTIES, REMEDIES, LIMITATION OF LIABILITY Infringement Indemnity (a) Eagle Research Corporation will defend End User against a claim that SOFTWARE furnished and used within the scope of this Agreement infringe a U.S. copyright or a U.S. patent issued on or before the Effective Date (“Claim”), and Eagle Research Corporation will indemnify End User for any damages finally awarded or any final settlement amount paid based upon a Claim, provided End User notifies Eagle Research Corporation in writing of the details of a Claim within thirty (30) days after its occurrence, and End User provides Eagle Research Corporation (at Eagle Research Corporation expense for reasonable out-of-pocket-expenses) with the assistance, information and authority necessary for Eagle Research Corporation to solely conduct the defense and all related settlement negotiations. (b) Notwithstanding any other provision of Agreement, Eagle Research Corporation shall have no liability for any Claim based on: (i) use of a superseded or altered release of Software if such Claim would have been avoided by use of current or unaltered releases of such Software or (ii) the combination, operation or use of any of the Software furnished under this Agreement with programs or data not furnished by Eagle Research Corporation if such Claim would have been avoided by use of the Software without such programs or data. (c) In the event the Software is held or is believed by Eagle Research Corporation to infringe, Eagle Research Corporation shall have the option, at its expense. to (i) modify the Software to be non-infringing, (ii) obtain for End User a license to continue using the Software, or (iii) substitute the Software with other Software reasonably suitable to End User. Eagle Research Corporation reserves the right to terminate the license for the infringing Software and refund the license fees paid for such Software if it cannot reasonably take any of the actions set forth above. This Section states End User’s exclusive remedy and Eagle Research Corporation’s entire liability for any agreement. WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS Warranties Eagle Research Corporation does not warrant that the operation of the Software will be uninterrupted or error-free, that all Software Problems will be corrected, that the Software will satisfy End User’s requirements, or that the Software will operate in the combinations which End User may select for use. For any breach of the above warranties, End User’s exclusive remedy, and Eagle Research Corporation’s entire liability, shall be for Eagle Research Corporation to take the action as required. A 'Software Problem' shall mean a reproducible failure of the SOFTWARE to perform substantially the functions described in the user documentation when properly installed and operated on supported configurations. When a Software Problem is reported in reasonable detail, Eagle will investigate it within a reasonable time as determined by the priority and if investigation confirms the existence of the Software Problem, Eagle will make a reasonable effort to correct the Software Problem, replace the SOFTWARE media, make an update generally commercially available, or work out a reasonable alternative. A reasonable alternative includes, but is not limited to a temporary method of circumventing the Software Problem. END USER shall provide descriptions or examples of a Software Problem in the form requested and shall provide all reasonable assistance to Eagle, including any supporting materials requested by Eagle in duplicating and/or correcting the Software Problem. The END USER’s installed versions of the software shall be the most recent or immediately preceding versions of the software in order to maintain appropriate support. Limitations on Warranties THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. The warranties above shall apply only if alleged defects actually exist and were not caused by End User’s misuse, unauthorized modifications, operating system upgrades, neglect, improper installation or testing, attempts to repair, or the like, or by accident, fire, power surge or failure, or other hazard. Repair or replacement of a part, code or other item will be warranted so long as End User is in the current warranty period or is current with one of the software maintenance and support plans offered. Limitation of Liability IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES UNDER THIS AGREEMENT, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY. EAGLE RESEARCH CORPORATIONS’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNT OF LICENSE FEES PAID BY END USER UNDER THIS AGREEMENT, AND IF SUCH DAMAGES RESULT FROM END USER’S USE OF SOFTWARE, SUCH LIABILITY SHALL BE TO LICENSE FEES PAID, PRORATED OVER A THREE-YEAR TERM FROM THE EFFECTIVE DATE. SOME STATES AND JURISDICTIONS OUTSIDE OF THE UNITED STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY. END USER ACKNOWLEDGES THAT THE ALLOCATION OF RISKS AND BENEFITS UNDER THIS AGREEMENT ARE BASED ON, AND THE LICENSE FEES UNDER THIS AGREEMENT WOULD BE GREATER IN THE ABSENCE OF THE LIMITATIONS DESCRIBED ABOVE. GENERAL TERMS Nondisclosure The parties agree, both during the term of this Agreement and for a period of three (3) years after termination of this Agreement and of all licenses granted under this Agreement: (a) to hold in confidence information which is confidential to the other ("Confidential Information,” as more fully described below); (b) not to disclose or make each other's Confidential Information available, in any form to any third party; and (c) not to use each other's Confidential Information for any purpose other than as specified in this Agreement. In addition. each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents (who shall be entitled to have access to same only on a need-to-know basis) in violation of any provision of this Agreement. A party's Confidential Information shall be limited to the SOFTWARE, information related thereto (including results of benchmark test of any SOFTWARE), and all information clearly marked as confidential and shall not include information which: (i) is or becomes a part of the public domain through no act or omission of the other party, (ii) was in the other party's lawful possession prior to such access to or the disclosure of same and had not been obtained by such other party either directly or indirectly from the party hereto granting such access or making such disclosure, all of which is properly documented by such other party; (iii) is lawfully disclosed to the other party by a third party having a legal right to so disclose without restriction on such disclosure; or (iv) with respect to information that is the same as or substantially identical to the Confidential Information, is entirely independently developed by the other party, which independent development is properly documented by such other party. Notice All notices, including notices of address change, required or permitted to be given hereunder shall be in English and in writing and shall be deemed to have been received (i) when received if hand delivered, (ii) seven (7) days after being properly mailed, postage prepaid, by first class, certified or registered mail, (iii) two (2) business days after being sent by a major express document courier, or (iv) when received if sent by confirmed fax in each case addressed to the address of the party indicated herein. Governing Law; Jurisdiction This Agreement is made in accordance with and shall be governed and construed under the laws of the State of West Virginia, as applied to agreements executed and performed entirely in West Virginia by West Virginia residents and in no event shall this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods. Export Administration and U.S. Government Rights. End User hereby acknowledges that it will not export or re-export any Software, related documentation or technical data (which includes, among other things, any technical information relating to the Software, written or otherwise), or any product incorporating the Software, related documentation or technical data without first obtaining all required U.S. Government export licenses. End User further acknowledges that it is knowledgeable about U.S. export licensing requirements or that it will become so prior to engaging, directly or indirectly, in any export transaction involving the Software, related documentation or technical data. End User hereby agrees to comply with the requirements of the U.S. Foreign Corrupt Practices Act (the 'Act') and shall refrain from any payments to third parties which would cause Eagle Research Corporation or End User to violate the Act. U.S. Government Restricted Rights. If you are a unit or agency of the United States Government (the "Government”) or are licensing the Software on behalf of any such entity, the following provisions apply. The Government agrees (i) if the Software are supplied to the Department of Defense (DOD), the Software are classified as "commercial computer Software” and the Government is acquiring only 'restricted rights' in the Software as that term is deemed in clause 48 C.F.R. 252.227-7013(c) of the DFARS Supplement and the government is acquiring only "limited rights" in any "technical data” provided hereunder (as such terms are defined in clauses 252.227-7013(a)(15) and (a)(18), respectively, of the DFARS); and (ii) if the Software are supplied to any unit or agency of the United States Government other that DoD, the Software are provided with "restricted rights” and shall be considered restricted computer Software and related documentation. developed solely at private expense and the Government's rights in the SOFTWARE will be as defined in clause 48 C.F.R. 52.227-19( c )(2) of the FAR or, in the case of NASA, in clause 18-52.227-86(d) of the NASA Supplement to the FAR. The parties agree that the SOFTWARE and all copies thereof shall be marked with the following legend: "RESTRICTED RIGHTS LEGEND. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c )(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013. Eagle Research Corporation 4036 Teays Valley Road, Scott Depot, WV 25560.” Entire Agreement; Severability and Waiver This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements or representations, written or oral, with respect to the Software, the services specified herein, and the licensing and providing of service under this Agreement. This Agreement may not be amended to or any provision waived except in a writing signed by a duly authorized representative of each party. In the event any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in effect. Any waiver (express or implied) by either party of any breach of this Agreement shall not constitute a waiver of any other or subsequent breach.