END-USER LICENSE AGREEMENT FOR
LICENSED PRODUCTS.

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IMPORTANT-READ CAREFULLY: This End-User License Agreement ("EULA") together with the Proposal and Sales Agreement issued to you (collectively, the "Agreement") is a legal agreement between you (either an individual or a single entity) and B2W Software, Incorporated ("B2W") for the B2W software product(s) identified on the Proposal & Sales Agreement which may include associated software components, media, printed materials, and "online" or electronic documentation ("LICENSED PRODUCT"). By installing, copying, or otherwise using the LICENSED PRODUCT, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, do not install or use the LICENSED PRODUCT.
The LICENSED PRODUCT is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The LICENSED PRODUCT is licensed, not sold.

1. GRANT OF LICENSE.
1.1 License Grant. The LICENSED PRODUCT is licensed as follows:

  • Installation and Use

    . B2W grants you a non-exclusive, perpetual right to install and use copies of the LICENSED PRODUCT on your computers as described on the applicable Proposal and Sales Agreement.

  • No Sublicensing

    . The license granted under this Agreement is personal to you and may not be leased, assigned, or sublicensed including, but not limited to, any attempted transfer of the LICENSED PRODUCTS to a successor in interest of your business. The license granted hereunder is solely for the benefit of the customer as named on the Proposal and Sales Agreement.

  • Backup Copies

    . You may not make any copies of the LICENSED PRODUCT except as may be reasonably necessary solely for backup and archival purposes.

2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.

  • Maintenance of Copyright Notices

    . You must not remove or alter any copyright notices on all copies of the LICENSED PRODUCT.

  • Distribution

    . You may not distribute copies of the LICENSED PRODUCT to third parties or otherwise rent, lease, or lend the LICENSED PRODUCT to any third-party or use the LICENSED PRODUCT as a service bureau.

  • Prohibition on Reverse Engineering, Decompilation, and Disassembly

    . You may not reverse engineer, decompile, or disassemble the LICENSED PRODUCT, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

  • Tampering With Database

    . You may not bypass the user interface to create or edit data directly within the SQL database. Doing so immediately voids your B2W Software Maintenance Agreement. B2W Software is not responsible for repairing damage caused by tampering with production data in this fashion.

  • Support Services

    . B2W will provide you with Training and Support Services as set forth in the Training and Support Schedule to the Proposal and Sales Agreement ("SUPPORT SERVICES"),

    provided

    ,

    however

    , that B2W shall have no obligation to provide Support Services if you fail to pay the applicable support fees or you are otherwise in breach of this Agreement. B2W shall have no obligation to provide Support Services for any LICENSED PRODUCT in the event that: (i) you modify the LICENSED PRODUCT (or any component thereof) without B2W’s prior written consent; (ii) any error is caused in whole or in part by persons other than B2W, including without limitation, your failure to properly enter data; or (iii) any error is caused in whole or in part by your installation or use of the LICENSED PRODUCT in association with operating environments and platforms other than those specified by B2W. You agree to provide B2W with access to such facilities and equipment as are reasonably necessary for B2W to perform its obligations hereunder, including remote access to the LICENSED PRODUCT.

  • Compliance with Applicable Laws

    . You must comply with all applicable laws regarding use of the LICENSED PRODUCT.

  • New Features

    . If you suggest any new features, functionality or performance for the LICENSED PRODUCT that B2W subsequently incorporates into the LICENSED PRODUCT, you hereby acknowledge that (i) B2W shall own, and has all rights to use and incorporate, such suggestions and the LICENSED PRODUCT incorporating such new features, functionality, or performance shall be the sole and exclusive property of B2W; and (ii) all such suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon B2W.

3. INFRINGEMENT AND INDEMNIFICATION
3.1 Infringement Indemnity. B2W will defend and indemnify Customer against a third-party claim that the LICENSED PRODUCT used by Customer in accordance with this Agreement infringes or misappropriates any third-party intellectual property rights in the United States, provided that: (a) Customer agrees to notify B2W promptly in writing of Customer’s knowledge of a claim; (b) B2W has sole control of the defense and all related settlement negotiations; and (c) Customer shall provide B2W with the assistance, information, and authority reasonably necessary to perform such defense. B2W shall have no liability for any claim of infringement resulting from: (i) Customer’s alteration or modifications of the LICENSED PRODUCT without B2W’s prior written approval; (ii) Customer Information; or (iii) the combination or use of the LICENSED PRODUCT with software, data, or material not furnished by B2W.

3.2 Mitigation/Termination. In the event that some or all of the LICENSED PRODUCT is held or is reasonably believed by B2W to infringe the rights of a third party, B2W shall have the option, at its expense, to: (i) modify the LICENSED PRODUCT to make it non-infringing; or (ii) obtain a license that permits Customer to continue using the LICENSED PRODUCT. If neither of such options can be exercised by B2W on a commercially reasonable basis and the infringing materials materially affect the LICENSED PRODUCT or the ability of B2W to meet its obligations under this Agreement, then B2W may terminate this Agreement and Customer shall be entitled to recover from B2W a portion of the license fee paid to B2W prorated over a straight-line term of three (3) years.

3.3 Exclusive Remedy. This Section 3 states B2W’s entire liability and exclusive remedy for infringement of third-party intellectual property rights.

4. TERMINATION. Without prejudice to any other rights, B2W may terminate the Agreement if you fail to comply with the terms and conditions contained in the Agreement. In such event, you shall cease to have any rights in the LICENSED PRODUCTS or use thereof. You shall destroy any and all copies of the LICENSED PRODUCTS.

5. PROPRIETARY RIGHTS. All ownership, title and rights, including, but not limited to, copyrights, in and to the LICENSED PRODUCT and any copies thereof are owned by B2W or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the LICENSED PRODUCT is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. The Agreement grants you no rights to use such content. All rights not expressly granted are reserved by B2W. If you suggest any new features, functionality or performance for the LICENSED PRODUCT that B2W subsequently incorporates into the LICENSED PRODUCT (or any other software or service), you hereby acknowledge that (i) B2W shall own, and has all rights to use, such suggestions and the LICENSED PRODUCT incorporating such new features, functionality, or performance shall be the sole and exclusive property of B2W; and (ii) all such suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon B2W.

6. U.S. GOVERNMENT RESTRICTED RIGHTS. The LICENSED PRODUCT is provided with RESTRICTED RIGHTS. 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 or subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is B2W Software, Incorporated/Martingale Wharf/99 Bow Street/Suite 500/Portsmouth, NH 03801.

7. EXPORT RESTRICTIONS. You agree that you will not export or re-export the LICENSED PRODUCT to any country, person, entity or end user subject to U.S.A. export restrictions. You warrant and represent that neither the U.S.A. Bureau of Export Administration nor any other federal agency has suspended, revoked or denied your export privileges and you covenant to promptly notify B2W in writing in the event of any change in the status of your export privileges.

8. LIMITED WARRANTY. For a period of thirty (30) days after delivery of the LICENSED PRODUCTS, B2W warrants and represents that the LICENSED PRODUCTS will operate and perform substantially in conformance with the requirements and specifications set forth in the Product Specifications and Pricing Schedule to the Proposal and Sales Agreement. During the term of this Limited Warranty, B2W will investigate issues reported by you in writing in the then current version of the LICENSED PRODUCTS. Your exclusive remedy with respect to any material nonconformity or defect in the LICENSED PRODUCT discovered during the warranty period will be limited to, at B2W’s repair or correction of any defective or nonconforming component of the LICENSED PRODUCT. B2W shall have no obligation to provide corrections or replacements in the event (x) you modify the LICENSED PRODUCT (or any component thereof) without B2W’s prior written consent; (y) the error is caused in whole or in part by persons other than B2W, including without limitation, your failure to properly enter data; or (z) the error is caused in whole or in part by your installation or use of the LICENSED PRODUCT in association with operating environments and platforms other than those specified by B2W. In the event that B2W determines that your report of an error is incorrect, B2W may charge you for B2W’s time at B2W’s published rates then in effect.

9. DISCLAIMER OF WARRANTIES. ASIDE FROM THE EXPRESS WARRANTIES SET FORTH IN SECTION 8 ABOVE, THERE IS NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. B2W DOES NOT WARRANT THAT THE LICENSED PRODUCT WILL OPERATED UNINTERRUPTED OR ERROR FREE OR THAT THE RESULTS OF ANY PROGRAMS OR SERVICES, OR THAT THE LICENSED PRODUCTS WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS.

10. LIMITATION OF LIABILITY. To the maximum extent permitted by applicable law, in no event shall B2W or its suppliers be liable for any special, incidental, indirect, or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use the LICENSED PRODUCT or the provision of or failure to provide Support Services, even if B2W has been advised of the possibility of such damages. In any case, B2W's entire liability under any provision of the Agreement shall be limited to the amount actually paid by you for the LICENSED PRODUCT. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to you.

11. GOVERNING LAW. This agreement is made under, and shall be governed by, the laws of the State of New Hampshire, U.S.A. Any claim, dispute, action, or proceeding arising under this agreement shall be maintained only in a state or federal court located in the State of New Hampshire, and you agree to such governing law and venue for all purposes.

12. SEVERABILITY. If any provision of the Agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions shall not be impaired thereby.

13. ENTIRE AGREEMENT. This Agreement shall constitute the complete agreement between the parties and supersedes all previous agreements or representations, written or oral, with respect to the subject matter hereof. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party. It is expressly agreed that any terms and conditions of any purchase order or similar instrument of customer shall be superseded by the terms and conditions of this Agreement to the extent that such terms may be in conflict.

Should you have any questions concerning the Agreement, or if you desire to contact B2W for any reason, write: B2W Software, Incorporated/Martingale Wharf/99 Bow Street/Suite 500/Portsmouth, NH 03801.

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