CODE 42 END USER LICENSE AGREEMENT FOR CONSUMER CRASHPLAN PRO SERVER ==================================================================== IMPORTANT: PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. YOU WILL HAVE ACCEPTED THIS END USER LICENSE AGREEMENT IF YOU: 1) DOWNLOAD, INSTALL, ACTIVATE, OR USE CODE 42 CRASHPLAN SOFTWARE OR DATA HOSTING SERVICES; OR 2) CLICK THE "I ACCEPT" BUTTON ASSOCIATED WITH THIS END USER LICENSE AGREEMENT. This End User License Agreement ("Agreement") is a legal agreement between you, the customer, and Code 42 Software, a Minnesota company ("Code 42") regarding the purchase, use, and installation of Code 42's CrashPlan Software and/or Data Hosting Services (hereinafter collectively the "Code 42 Products"). In this Agreement, "you" and "your" refer to you, the customer, and his or her agents, and "we", "us" and "our" refer collectively to Code 42. CODE 42 IS WILLING TO ALLOW THE SALE AND USE OF THE CODE 42 PRODUCTS TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT. BY ACCEPTING THIS AGREEMENT YOU ARE BINDING YOURSELF TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN CODE 42 IS UNWILLING TO ALLOW THE SALE AND USE OF THE CODE 42 PRODUCTS TO YOU AND YOU MUST (A) NOT DOWNLOAD, INSTALL, ACTIVATE, OR USE THE CRASHPLAN SOFTWARE OR DATA HOSTING SERVICES, AND (B) YOU MAY RETURN THE CRASHPLAN SOFTWARE FOR A FULL REFUND OF ITS PURCHASE PRICE. YOUR RIGHT TO RETURN AND A REFUND FOR THE CRASHPLAN SOFTWARE EXPIRES 30 DAYS AFTER ITS PURCHASE, AND APPLIES ONLY IF YOU ARE THE ORIGINAL END USER PURCHASER. IF YOU ARE UNDER 14 YEARS OF AGE, YOU MAY NOT PURCHASE OR USE THE CODE 42 PRODUCTS. IF YOU ARE BETWEEN THE AGES OF 14 AND 17 YEARS OF AGE YOU MAY ONLY PURCHASE AND USE THE CODE 42 PRODUCTS AFTER RECIVING PRIOR CONSENT FROM YOUR PARENTS OR LEGAL GUARDIANS. ANY PURCHASE OR USE OF ANY CODE 42 PRODUCTS WITHOUT AGREEING TO THE TERMS OF THIS AGREEMENT IS STRICTLY PROHIBITED. Code 42 makes no representations that the Code 42 Products are appropriate for use in other locations outside of the United States. If you use the Code 42 Products in or from other locations you are responsible for compliance with applicable laws. 1. DESCRIPTION OF CODE 42 PRODUCTS. Throughout this Agreement, the following descriptions shall apply. More detailed information regarding these Code 42 Products can be found at http://www.crashplan.com. a. "CrashPlan" is the CrashPlan software program that allows you to backup your data once a day to Code 42 using Code 42's Data Hosting Services and/or other storage devices that: 1) are running any form of the CrashPlan Software; 2) have given you permission to backup to that device; and 3) are in a functional state and condition appropriate for receiving and storing your data (e.g., powered on, connected to the Internet, containing appropriate storage space, etc.). CrashPlan does not allow for real-time backups (i.e. backups that occur multiple times a day) nor the retrieval of multiple previous versions of data. b. "CrashPlan Pro" is the CrashPlan software program that allows you to backup your data in real-time (i.e. backups that occur multiple times a day) to Code 42 using Code 42's Data Hosting Services and/or other storage devices that: i) are running any form of the CrashPlan Software; 2) have given you permission to backup to that device; and 3) are in a functional state and condition appropriate for receiving and storing your data (e.g., powered on, connected to the Internet, containing appropriate storage space, etc.). CrashPlan Pro also allows for the storage of multiple versions of data without overwriting previous backups of that data. c. "Free CrashPlan" is the CrashPlan software program that allows others to backup to a storage device running that program but does not include the additional functionality of CrashPlan or CrashPlan Pro (i.e., a device running Free CrashPlan cannot backup its data to another device using the CrashPlan Software.) Devices running Free CrashPlan must also: 1) have given permission to those attempting to backup data to that device; and 2) be in a functional state and condition appropriate for receiving and storing data (e.g., powered on, connected to the Internet, containing appropriate storage space, etc.) to be used for data backup. d. "CrashPlan Software" refers collectively to CrashPlan, CrashPlan Pro, and CrashPlan PROServer. e. "Data Hosting Services" is the data hosting service for NON-COMMERCIAL USE ONLY provided by Code 42. You may choose use these Data Hosting Services to backup your data to Code 42 provided it is for PERSONAL USE ONLY. If you choose to use these Data Hosting Services, Code 42 will use commercially reasonable efforts to provide the Data Hosting Services to you under the terms and conditions of this Agreement. Should you need to a data hosting service for COMMERCIAL USE, please refer to CrashPlan for Business information located at http://www.crashplan.com/business/index.vtl 2. GRANT OF LICENSE. Unless otherwise noted in this Agreement, and to the full extent allowed under any applicable laws, all terms and conditions of this Agreement apply to purchases and use of any and all Code 42 Products, whether CrashPlan Software or Data Hosting Services. a. CODE 42 PRODUCTS LIMITED EVALUATION LICENSE. Subject to the terms of this Agreement, you are hereby licensed by Code 42 to use for evaluation purposes only 1) one (1) copy of CrashPlan Pro per computer or workstation; and 2) the use of Code 42's Data Hosting Services, without charge, for a period of thirty (30) days after you first activate the software. If you want to continue to use CrashPlan Software, or the Data Hosting Services after the 30-day evaluation period, you must acquire from Code 42, for a fee, a license for CrashPlan Software and agree to pay the associated fee for Data Hosting Services. Use of CrashPlan Software after the expiration of the 30-day evaluation period without acquiring such a license is outside the scope of this Agreement and a violation of U.S. and international copyright laws. If you do not purchase CrashPlan Software after the evaluation period, your ability to use your evaluation, including your ability to backup or retrieve backup data, will automatically cease to function 31 days after activation of the software; however, your evaluation version of CrashPlan Software may continue to operate as Free CrashPlan allowing backups to the device running that software. b. NON-EVALUATION GRANT OF LICENSE. Conditioned upon compliance with the terms and conditions of this Agreement including the purchase of CrashPlan Software, Code 42 grants to you a nonexclusive and nontransferable license to use those Code 42 Products that you have purchased and their related Documentation. You may only use each single copy of CrashPlan Software you purchase on one computer or workstation at a time; however, you are allowed to transfer each purchased CrashPlan Software copy from one computer to another, single computer so long as you do not abuse this privilege (e.g., repeated transfers of the CrashPlan Software for the purpose of backing up multiple computers without the purchase of multiple licenses). What actions constitute an abuse is the the sole discretion of Code 42. "Documentation" as used in this Agreement means written information (whether contained in user or technical manuals, training materials, specifications or otherwise) specifically pertaining to the Code 42 Products and made available by Code 42 with the Code 42 Products in any manner (including on CD-ROM or on-line). c. TITLE AND LIMITATIONS. This is a license, not a transfer of title, to the CrashPlan Software and Documentation. Code 42 retains ownership of all copies of the CrashPlan Software and Documentation. You are granted no implied licenses to any other intellectual property rights other than as specifically granted herein. You acknowledge that the CrashPlan Software and Documentation contain trade secrets of Code 42, its suppliers, or licensors, including but not limited to, the specific internal design and structure of individual programs and associated interface information. Accordingly, except as otherwise expressly provided under this Agreement, you shall have no right, and you specifically agree not to: i. transfer, assign or sublicense its license rights to another person or entity and you acknowledge that any attempted transfer, assignment, sublicense or use shall be void; ii. make error corrections to, or otherwise modify or adapt, the CrashPlan Software or to create derivative works based upon the CrashPlan Software, or permit third parties to do the same; iii. reverse engineer or decompile, decrypt, disassemble or otherwise reduce the CrashPlan Software to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction; iv. use or permit the CrashPlan Software to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of Code 42; v. disclose, provide, or otherwise make available trade secrets contained within the CrashPlan Software and Documentation in any form, to any third party without the prior written consent of Code 42. You shall implement reasonable security measures to protect such trade secrets; or vi. use the CrashPlan Software to develop any software application intended for resale which employs the CrashPlan Software. d. SOFTWARE, UPGRADES, AND ADDITIONAL COPIES. For purposes of this Agreement, "Software" shall include (and the terms and conditions of this Agreement shall apply to) the CrashPlan Software and any upgrades, updates, bug fixes or modified versions thereto (collectively, "Upgrades") or backup copies of the CrashPlan Software licensed or provided to you by Code 42. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT: (1) YOU HAVE NO LICENSE OR RIGHT TO USE ANY ADDITIONAL COPIES OR UPGRADES UNLESS YOU, AT THE TIME OF ACQUIRING SUCH COPY OR UPGRADE, ALREADY HOLD A VALID LICENSE TO THE ORIGINAL SOFTWARE AND HAVE PAID THE APPLICABLE FEE FOR THE UPGRADE OR ADDITIONAL COPIES; AND (2) THE MAKING AND USE OF ADDITIONAL COPIES IS LIMITED TO NECESSARY BACKUP PURPOSES ONLY. 3. ACCESS TO CODE 42 PRODUCTS. In order to use Code 42 Products, you must provide all equipment and software necessary to use Code 42 Products that are not a part of the Code 42 Products, including, but not limited to, a computer that is in working order running an operating system compatible with the Code 42 Products and that is suitable for use in connection with the Code 42 Products. You are responsible for ensuring that your equipment and/or software do not disturb or interfere with Code 42's operations or the operations of other users of Code 42 Products. If any upgrade or modification to Code 42 Products requires changes in your equipment or software, you must effect these changes at your own expense. Unless explicitly stated otherwise, any new or additional features that augment or enhance Code 42 Products, including the release of new products and services, shall be subject to the terms and conditions of this Agreement. 4. INVOICING AND PAYMENT. a. PRICING INFORMATION. Pricing information for Code 42 Products is provided at http://www.crashplan.com. b. INVOICING AND PAYMENT TERMS FOR DATA HOSTING SERVICES. After your free 30 day evaluation of the Data Hosting Services, Code 42 will offer you the opportunity to subscribe to the monthly service. If you do not sign up, Code 42 will remove all backup data from their servers. If you sign up, Code 42 will evaluate your usage of that service and generate an invoice for pre-payment for the next 30 days based upon that usage. You will continue to be billed and be required to pre-pay on a 30 day schedule with payment amounts based upon your usage of the Data Hosting Service during the previous 30 days. You will not be charged extra for a 30 day period of usage where your pre-paid amount is insufficient to cover your actual usage during that period of time, but you will be invoiced and required to pre-pay for the following 30 days based upon your actual usage during those previous 30 days. Pre-paid amounts are not refundable except where explicitly stated in this Agreement. Code 42 will deliver invoices for your use of the Data Hosting Services by e-mail to the e-mail account you register with Code 42. Payment of all invoices issued by Code 42 to you are due thirty (30) days from the date of the invoice. BY ACCEPTING THIS AGREEMENT AND USING DATA HOSTING SERVICES, YOU EXPRESSLY AUTHORIZE CODE 42 TO BILL AND COLLECT PAYMENT FROM YOU BY ANY PAYMENT METHOD YOU REGISTER WITH CODE 42 INCLUDING, BUT NOT LIMITED TO, YOUR CREDIT CARD, BANK ACCOUNT, OR ONLINE PAYMENT SYSTEM SUCH AS PAYPAL_. Any amount not paid when due will accrue a finance charge at the rate of 1 and one-half percent (1-1/2%) per month or the highest rate permitted by law, whichever is less, until fully paid. c. FAILURE TO PAY ON TIME. In addition to the finance charge in Section 4.b. of this agreement, in the event that you fail to pay any Code 42 invoice when due, Code 42 may immediately and without notice terminate this Agreement including all rights to continue using the Data Hosting Services. If your payment becomes more than 30 days overdue, Code 42 reserves the right to delete any and all data you have stored with Code 42 through the Data Hosting Service. d. BILLING DISPUTES. You may dispute any amount invoiced under Section 3.b. within thirty (30) days of the invoice date by submitting in writing to Code 42 the following information: 1) the Code 42 Products purchased that are in dispute; 2) the amount in dispute; and 3) the reason for the disputed billing. Failure to submit such information in writing within thirty (30) days of the invoice date will result in a waiver of your ability dispute the invoiced charges. Code 42 may require additional information as it sees fit from you in order to resolve the billing dispute. Any resolution of the billing dispute will be in the sole discretion of Code 42 subject to the rights and obligations set forth in this Agreement. Regardless of any billing dispute, Code 42 retains the right to terminate this Agreement under Sections 3.c. and 10 of this Agreement. 5. DATA STORAGE AND CUSTOMER INFORMATION COLLECTED. a. DATA STORAGE. You decide where your data is backed up. Data is only stored by Code 42 if you choose to purchase the Data Hosting Services. All other uses of CrashPlan Software will require you to gain authorization from another CrashPlan Software user to backup data to their device and/or for you to supply all hardware, software, infrastructure, and other equipment required for data storage. REGARDLESS OF WHETHER YOU OR CODE 42 STORES YOUR DATA, ONLY THOSE FILES YOU SELECT FOR BACKUP WILL BE STORED. b. DATA SECURITY. CrashPlan Software uses encryption to secure access to your data. Your password is required for decrypting stored data. Code 42 stores your password unless you elect to not have the password stored with Code 42. IF YOU ELECT NOT TO HAVE CODE 42 STORE YOUR PASSWORD AND YOU LOOSE YOUR PASSWORD, YOUR ENCRYPTED DATA WILL NOT BE RECOVERABLE. c. STORAGE AND USE OF E-MAIL AND PASSWORD. In addition to the storage and use of your password as outlined in Section 5.b. of this Agreement, your e-mail address and method of payment may be stored by Code 42. YOU ARE SOLELY RESPONSIBLE FOR SUPPLYING AND MAINTAINING ANY INTERNET CONNECTIONS FOR YOUR EQUIPMENT AND SUPPLYING AND MAINTAINING A CORRECT E-MAIL ADDRESS WITH CODE 42. i. METHOD OF PAYMENT INFORMATION. If you purchased Code 42 Products from Code 42, we will collect and store your method of payment for the Code 42 Products you have purchased. ii. E-MAIL ADDRESS INFORMATION. Your e-mail address in combination with your password, allows Code 42 to verify your identity. Code 42 may offer services such as allowing you to use your e-mail address in combination with your password to remotely delete your data from a computer on which CrashPlan Software is installed, or Code 42 may allow you to put up a "lost/stolen" sign that will appear on that computer when it is booted. All such new functionality will be announced to you by sending messages to your registered e-mail. AS STATED IN SECTION 14 OF THIS AGREEMENT, CODE 42 EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY LOST, STOLEN, OR DELETED DATA, INCLUDING ANY DATA DELETED REMOTELY AS DESCRIBED IN THIS SECTION. iii. INFORMATION COLLECTED VIA THE INTERNET. CrashPlan Software may automatically use the Internet to search for updates, such as, but not limited to, bug fixes and security updates, for CrashPlan Software. Such updates may install automatically. Code 42 Products may also contact Code 42 to verify the status of any license and right to use the Code 42 Products. Computers with installed CrashPlan Software may also be tracked by Code 42 (such as via Internet Protocol address) to locate where on the Internet that computer is located so that you and others you invite to backup data can locate your computer. Where applicable, Code 42 Products may use the Internet to transfer your data to your designated data storage facilities. iv. CODE 42 PRODUCTS' LICENSE KEY. Code 42 Products may require activation via a license key. Code 42 Products requiring activation by a license key will require an Internet connect to complete activation. Activation via a license key will result in the computer installed with Code 42 Products to transmit the license key to Code 42 via the Internet for activation of the Code 42 Products. 6. MODIFICATIONS. You agree that Code 42 may, at its sole discretion, access our software on your computer, and/or cause CrashPlan Software to contact Code 42, in order to provide additional or modified functionality, updates, enhancements, security updates and patches, and upgrades to CrashPlan Software or to remove or terminate the functionality of any CrashPlan Software in accordance with the termination provisions of this Agreement (collectively "Modifications"). All Modifications will be related to the Code 42 Products and will not include additional software from third parties. 7. UNINSTALLING CRASHPLAN SOFTWARE. You may uninstall CrashPlan Software by using any uninstall utility that accompanies the installed CrashPlan Software or through the uninstall mechanism provided by your compatible operating system. UNINSTALLING THE CRASHPLAN SOFTWARE WILL CAUSE THEM TO CEASE TO FUNCTIONING. UNINSTALLING CRASHPLAN SOFTWARE WILL RESULT IN YOU NOT BEING ABLE TO ACCESS ANY ENCRYPTED DATA THAT WAS STORED USING THE CRASHPLAN SOFTWARE. UNINSTALLING FREE CRASHPLAN WILL RESULT IN THE INABILITY OF OTHERS BACKING UP TO THAT DEVICE TO RETREIVE THEIR BACKED UP DATA FROM THAT DEVICE. Code 42 does not warrant that any and all portions of the CrashPlan Software will be removed by any uninstall utility or the uninstall mechanism of your operating system. Code 42 does not warrant that all of your computer's software content, including but not limited to the operating system, will regress to a state of operation, including but not limited to settings and options, that are identical to those that existed prior to the installation of CrashPlan Software. You remain bound by the terms of this Agreement, including but not limited to its disclaimer of warranties, limitation of liability, exclusive remedy, intellectual property, and ownership clauses even after you uninstall the CrashPlan Software. 8. PROPRIETARY NOTICES. You agree to maintain and reproduce all copyright, trademarks and other proprietary notices on all copies, in any form, of the CrashPlan Software in the same form and manner that such copyright and other proprietary notices are included on the CrashPlan Software. Except as expressly authorized in this Agreement, you shall not make any copies or duplicates of any CrashPlan Software without the prior written permission of Code 42. 9. OPEN SOURCE CONTENT. You acknowledge that some of the CrashPlan Software contain open source or publicly available content under separate license and copyright requirements which are located either in this license, the CrashPlan Software README file, or the Documentation. You agree to comply with such separate license and copyright requirements. Certain portions of the CrashPlan Software are licensed under, and your use of such portions are subject to, the GNU General Public License version 2. A copy of the license is available at www.fsf.org or by writing to licensing@fsf.org or the Free Software Foundation, 59 Temple Place, Suite 330, Boston, MA 02111-1307. Source code governed by the GNU General Public License version 2 is available upon written request to Code 42 at 12 South 6th Street #1242, Minneapolis, Minnesota 55402, without charge except for the cost of media, shipping, and handling. The GNU General Public License version 2 software is distributed WITHOUT ANY WARRANTY, without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. 10. TERMINATION. This Agreement shall be effective as of your acceptance of this Agreement and shall continue in effect until terminated by either party. Either party may, at its election and in its sole discretion, terminate this Agreement at will, except as otherwise set forth in this Agreement. Code 42 specifically reserves the right to terminate this Agreement and your use of Code 42 products immediately, without notice from Code 42, if you fail to comply with any provision of this Agreement, you use any Code 42 Product in a way not intended by Code 42, or you abuse your use of Code 42 Products. Code 42 is further entitled to obtain injunctive relief if your use of the Code 42 Products is in violation of any license restrictions. Upon termination, you shall destroy all copies of the CrashPlan Software and Documentation in your possession or control. ACCORDING TO THIS SECTION OR OTHER SECTIONS OF THIS AGREEMENT, CODE 42 MAY TERMINATE YOUR ABILITY TO CONTINUE TO USE CODE 42 PRODUCTS. THE TERMINATION OF YOUR ABILITY TO CONTINUE TO USE CODE 42 PRODUCTS WILL CAUSE THOSE CODE 42 PRODUCTS TO CEASE FUNCTIONING AND RESULT IN YOU NOT BEING ABLE TO ACCESS ANY ENCRYPTED DATA THAT WAS STORED USING THE CRASHPLAN SOFTWARE. TERMINATING FREE CRASHPLAN WILL RESULT IN THE INABILITY OF OTHERS BACKING UP TO THAT DEVICE TO RETRIEVE THEIR BACKED UP DATA FROM THAT DEVICE. The termination of this Agreement for any reason shall not affect: a) the obligations of the parties to account for and pay to one another any amounts for which they are obligated by virtue of transactions or events which occurred prior to the effective date of termination; or b) any other obligation or liability which either party has to the other under this Agreement and which, by its nature, would reasonably be expected to survive termination such as, but not limited to, Sections 8, 2.c., 2.d, 12, 13, 15, 16, 17, 18, and 19.e. 11. ALLOCATION OF RISK. You acknowledge and agree that Code 42 has set its prices and entered into this Agreement and sales of Code 42 Products in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties. 12. LIMITED WARRANTY. Code 42 warrants that, for a period of ninety (90) days from the date of the first purchase of CrashPlan Software that such version, in the form delivered by Code 42, will substantially conform to and perform substantially in accordance with Code 42's published documentation, to the extent such exists, with respect thereto when installed and operated in accordance with Code 42 specifications, and Code 42 will endeavor to correct any failure of the Code 42 Products to so conform or perform of which Code 42 receives written notice from you within said ninety (90) day period. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CODE 42 PRODUCTS FURNISHED BY CODE 42 AND ACCEPTED BY YOU ARE PROVIDED "AS IS" AND WITHOUT ANY WARRANTY WHATSOEVER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY CODE 42. CODE 42 DOES NOT WARRANT THAT THE CODE 42 PRODUCTS OR ASSOCIATED DOCUMENTATION WILL MEET THE YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE CODE 42 PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF CODE 42 PRODUCTS IS WITH YOU. 13. LIMITATION OF REMEDIES. YOUR SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE FOREGOING LIMITED WARRANTY WILL BE THAT (A) CODE 42 WILL ENDEAVOR TO CORRECT WITHIN A REASONABLE TIME ANY REPORTED FAILURE OF CODE 42 PRODUCTS TO SUBSTANTIALLY CONFORM TO OR PERFORM SUBSTANTIALLY IN ACCORDANCE WITH CODE 42'S SPECIFICATIONS, TO THE EXTENT SUCH SPECIFICATIONS EXIST, DURING THE WARRANTY PERIOD SET FORTH IN SECTION 12 OF THIS AGREEMENT OR (B) IN THE EVENT THAT CODE 42 SHALL FAIL OR BE UNABLE FOR ANY REASON TO CORRECT ANY SUCH FAILURE OR NON-CONFORMITY OF THE CODE 42 PRODUCTS YOU MAY TERMINATE THE END USER LICENSE AGREEMENT AS TO THE AFFECTED CODE 42 PRODUCTS. 14. LIMITATION OF CODE 42 LIABILITY. IN NO EVENT WILL CODE 42 BE LIABLE TO YOU FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, LOST REVENUE, BUSINESS INTERRUPTION, LOSS OF CAPITAL OR OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY CODE 42 PRODUCT FURNISHED OR TO BE FURNISHED BY CODE 42 UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF CODE 42 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND THE AGGREGATE LIABILITY OF CODE 42 UPON ANY AND ALL CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY CODE 42 PRODUCTS FURNISHED OR TO BE FURNISHED BY CODE 42 UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE AMOUNT PAID BY YOU TO CODE 42 FOR YOUR PURCHASES OF CODE 42 PRODUCTS UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT NOTHING IN THIS AGREEMENT SHALL OPERATE TO RELIEVE CODE 42 FROM LIABILITY FOR ITS OWN WILLFUL OR WANTON RECKLESSNESS OR INTENTIONAL TORTS. 15. COPYRIGHT, PATENT, TRADE SECRET, AND TRADEMARK INDEMNITY. Subject to the limitations of Section 14, Code 42 will defend you and hold you harmless against liability upon any claim by any third party that the Code 42 Products as furnished by Code 42 infringe or violate any copyright, trademark or trade secret rights of such third party or any patent rights of such third party under a United States patent issued as of the effective date of this Agreement, provided that: a) you notify Code 42 promptly in writing of any notice of any such claim; b) you cooperate with Code 42 in all reasonable respects in connection with the investigation and defense of any such claim; c) Code 42 shall have sole control of the defense of any action on any such claim and all negotiations for its settlement or compromise; and d) should the Code 42 Products become, or in Code 42's opinion be likely to become, the subject of a claim of copyright, patent or trademark infringement or trade secret misappropriation, you will permit Code 42, at Code 42's option and expense, either to: i) procure for you the right to continue using the affected Code 42 Products; ii) replace or modify the same so that it becomes non-infringing; or iii) terminate this Agreement with respect to such Code 42 Products and refund to you the amount of the license fees paid to Code 42 for charges for the thirty (30) day billing cycle during which you notified Code 42 in writing of any such claims. Notwithstanding anything herein to the contrary, however, Code 42 shall have no obligation or liability under any provision of this Section if any copyright, patent or trademark infringement or trade secret misappropriation claim is based upon use of an Code 42 Products in a manner other than that for which it was furnished by Code 42, upon any Code 42 Products which has been modified by or for you in such a way as to cause it to become infringing, or upon any trademark or service mark which is not used by Code 42. 16. INDEMNITY BY YOU. You will, to the fullest extent permitted by law, indemnify Code 42 against and hold Code 42 harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys' fees in connection with investigating, defending, or settling any claim relating to or arising out of any acts or omissions on the part of you which gives rise to claims against Code 42 by third parties. 17. U.S. GOVERNMENTAL END USER PURCHASES. The purchase and use of Code 42 Products by the U.S. Government is considered a commercial use by Code 42 18. YOUR OBLIGATIONS. You represent and warrant that (a) you are the owner or an authorized user of the computer and data on which the Code 42 Products are installed or are used in conjunction with; and (b) you shall use the Code 42 Products only for lawful purposes, and will comply at all times with all applicable federal, state, and local laws and regulations applicable to the use of the same. You agree not to use any automated or manual process to interfere with, modify, or attempt to interfere with or modify the Code 42 Products except to uninstall the same as provided herein. 19. GENERAL PROVISIONS. a. ENFORCEMENT/CHOICE OF LAW/CHOICE OF FORUM. Every provision of this Agreement will be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision will be deemed severed from this Agreement, and all other provisions will remain in full force and effect. b. ENTIRE AGREEMENT/NO WAIVER. This Agreement sets forth the entire agreement and understanding between Code 42 and you regarding the subject matter hereof and supersedes any prior representations, advertisements, statements, proposals, negotiations, discussions, understandings, or agreements regarding the same subject matter. You acknowledge that it has not been induced to enter into this Agreement by any representations or statements, oral or written, not expressly contained in this Agreement. This Agreement may not be modified or amended except as described herein or by a separate writing referencing this Agreement and signed by both you and an authorized representative of Code 42. The failure by Code 42 at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, will not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. The waiver of any default by Code 42 will not be deemed a continuing waiver, but will apply solely to the instance to which such waiver is directed. This Agreement will in all respects be governed by and interpreted, construed and enforced in accordance with the laws of the United States of America and the state of Minnesota without respect to its choice of law provisions. Any action between the parties will be venued in a state or federal court situated within the state of Minnesota, and you irrevocably submit yourself to the personal jurisdiction of such courts for such purpose. c. CORRECTION OF ERRORS AND INACCURACIES. This Agreement may contain typographical errors or other errors or inaccuracies and may not be correct or current. Code 42 reserves the right to correct any errors, inaccuracies or omissions and to change or update this Agreement at any time without prior notice. Code 42 does not, however, guarantee that any errors, inaccuracies or omissions will be corrected. d. HEADINGS. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section. This Agreement shall not be construed as creating or constituting any partnership, joint venture or agency relationship between the parties. e. ASSIGNMENT AND RESALE. Your rights under this Agreement are not assignable or transferable. You agree not to resell Code 42 Products or any portion thereof. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. No third-party beneficiaries are intended or shall be construed as created by virtue of this Agreement. 20. QUESTIONS OR ADDITIONAL INFORMATION. If you have any questions regarding this Agreement or wish to obtain additional information, please send a letter via U.S. Mail to Code 42 at 12 South 6th Street #1242, Minneapolis, Minnesota 55402. Last Modified: August 7, 2007. Copyright 2006-2008, Code 42 Software, Inc. All Rights Reserved.