THIS SOFTWARE LICENSE AGREEMENT (THE "AGREEMENT") IS A BINDING LEGAL AGREEMENT BETWEEN MIDNIGHT CODERS, INC. (THE LICENSOR) AND THE CUSTOMER OF THE SOFTWARE (END USER).BY CLICKING THE ACCEPT BOX OR BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU REPRESENT (I) THAT YOU HAVE BEEN AUTHORIZED TO ACCEPT THESE TERMS ON BEHALF OF THE CUSTOMER (INDIVIDUAL OR ENTITY ON WHOSE BEHALF YOU REPRESENT YOU ARE AUTHORIZED TO ACT, IN WHICH EVENT YOU AND YOUR SHALL REFER TO YOU AND SUCH ENTITY, AS THE CASE MAY BE), OR (II) THAT YOU INTEND TO BE PERSONALLY BOUND TO THE TERMS OF THIS AGREEMENT AS THE CUSTOMER. IF YOU ARE NOT SO AUTHORIZED OR DO NOT INTEND TO BE PERSONALLY BOUND, THEN LICENSOR IS UNWILLING TO LICENSE THE SOFTWARE AND THE DOWNLOADING, INSTALLATION OR USE OF THE SOFTWARE IS A VIOLATION OF U.S. AND INTERNATIONAL COPYRIGHT LAWS AND CONVENTIONS. IF YOU ACCEPT THESE TERMS FOR AN ENTITY ON WHOSE BEHALF YOU ARE AUTHORIZED TO ACT, YOU MAY USE THE SOFTWARE ONLY ON BEHALF OF SUCH ENTITY. IF YOU INTEND TO BE PERSONALLY BOUND, USE OF THE SOFTWARE IS LIMITED TO YOUR PERSONAL USE.

DEFINITIONS:

1. "Customer" shall mean the end-user licensed to use the Software pursuant to the terms of this Agreement.

2. "Development Use" means use of the Software by YOU to design, develop and/or test new applications for
Production Use.

3. "Documentation" means LICENSOR’s user manuals, operating instructions and installation guides generally
provided with the Software to its end-user licensees.

4. "Evaluation Use" means use of the Software solely for YOUR internal evaluation and trial for new applications
intended for possible Production Use or Third Party Use by YOU.

5. "Production Use" means using the Software in YOUR application for internal business purposes only which may
include third party customers’ access to or use of such applications. Production Use does NOT include the right
to reproduce the Software for sublicensing, resale, or distribution, including without limitation, operation on a time
sharing or service bureau basis, distributing or using the Software as part of any ASP, VAR, OEM, distributor or
reseller arrangement unless (1) there is a special arrangement between YOU and the LICENSOR or (2) YOU
have a support plan in an active state that allows such use.

6. "Software" means the object code versions, extracts and/or derivative works of the software electronically
downloaded from LICENSOR’s website upon acceptance of this License, and the related Documentation.

7. “Software as a Service (SaaS)” is a software application delivery model where a software vendor develops a
software application for the purposes of hosting and use by users over the computer network.

8. “Application Service Provider (ASP)” is the business entity that operates the SaaS application for a fee.

LICENSOR hereby agrees to grant and CUSTOMER agrees to accept a non-exclusive license to use the Software subject to the following terms and conditions:

1. RIGHT TO USE / RESTRICTIONS ON USE: The Software is provided in and is licensed for use in object code form only. CUSTOMER may make copies of the Software for archival or backup purposes, but any and all copies must include LICENSOR’s copyright notice, and are fully subject to the terms of this Agreement. CUSTOMER may also distribute, integrate, bundle, sublicense and/or host Software in SaaS applications hosted by ASPs as long as a valid Software support plan agreement is in effect. (Absence of a valid support plan agreement constitutes violation of the license agreement.) CUSTOMER may not reverse engineer, disassemble, decompile, translate or otherwise attempt to create the source code from the Software or create derivative works of the Software or any portion thereof, including for reasons of error correction or interoperability. At CUSTOMER’s request and at LICENSOR’s election or as may be required by applicable law, LICENSOR will make commercially reasonable efforts to make available to CUSTOMER certain interface specifications so that CUSTOMER may develop software interfaces to provide interoperability with the Software. CUSTOMER may not publish or provide any results of benchmark tests run on the Software to a third party without LICENSOR’s prior written consent. CUSTOMER may not rent, lease, sublicense, assign (except as provided herein), (i) grant a security interest in or otherwise encumber, or otherwise transfer rights to the Software. . CUSTOMER may not bundle Software or a derivative of it as part of a software development environment such as, but not limited to, Remoting gateways, SOA servers and platforms, Business Intelligence software products, Rich Internet Application frameworks. Note that this restriction does not prevent developers from loading Software into an IDE and using it for evaluation or development purposes. CUSTOMER may not integrate Software or a derivative of it into a software infrastructure platform or products such as, but not limited to: Business Intelligence Servers, Business Activity Monitoring Servers, EJB Application Servers, Enterprise Application Integration products, Business to Business Integration products, Web Services Platforms, Web Services Management products, Process Control products, Business Process Automation products, Process Orchestration products, Distributed Computing Infrastructure products or platforms, Messaging Middleware products or Web Server products. Note that this restriction is targeted at software infrastructure vendors, and does not prevent developers from using and bundling Software with higher level applications that run on these platforms. CUSTOMER may not use Software or a derivative of it on a device which is not a standard PC or server. Examples of such devices include, but are not limited to, cell phones, PDAs, vehicles, factory controllers, routers and printers. The CUSTOMER agrees that CUSTOMER must contact LICENSOR in advance to determine whether any specific use is prohibited by this Agreement if the right to use the Software in such manner is unclear, vague or ambiguous.

2. DURATION: This license provided to CUSTOMER pursuant to this Agreement shall continue so long as CUSTOMER is not in breach of this Agreement and uses the Software in compliance with the Agreement. Should the CUSTOMER breach any term of this Agreement, this license shall terminate (without prejudice to LICENSOR’s right to seek any remedy available pursuant to this Agreement or otherwise provided by law) and CUSTOMER agrees to destroy or return all copies of the Software and all materials provided for or with the Software upon notification and demand by LICENSOR and cease using Software in integrated, bundled, distributed, and hosted SaaS applications.

3. TITLE: LICENSOR retains all proprietary rights and title to the Software and any modifications, and no ownership of any part of the Software is hereby transferred to CUSTOMER.

4. SECURITY/TRADE SECRETS: CUSTOMER understands and agrees that the Software contains trade secrets belonging to the LICENSOR, and CUSTOMER is required to take all reasonable steps to protect its confidentiality and prevent its piracy. CUSTOMER acknowledges that the Software is the property of LICENSOR and contains confidential information. CUSTOMER agrees that, other than to its employees, it shall not provide a copy of the Software nor divulge any details of it to any person without the prior written consent of the LICENSOR.

5. DISCLAIMER OF WARRANTIES AND LIABILITY: NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, LICENSOR SHALL HAVE NO LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR THE SOFTWARE, INCLUDING ANY LIABILITY FOR NEGLIGENCE. LICENSOR MAKES AND CUSTOMER RECEIVES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE SOFTWARE, AND THAT NO PROVISION OF THIS AGREEMENT OR ANY OTHER COMMUNICATION OF LICENSOR CREATES ANY SUCH WARRANTIES. LICENSOR SPECIFICALLY DISCLAIMS AND/OR WAIVES ANY WARRANTY OF MERCHANTABILITY OR SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. CUSTOMER MAY HAVE CERTAIN STATUTORY RIGHTS TO WHICH THESE EXCLUSIONS DO NOT APPLY. IN NO EVENT WILL WARRANTIES PROVIDED BY LAW, IF ANY, APPLY UNLESS THEY ARE REQUIRED TO APPLY BY STATUTE NOTWITHSTANDING THEIR EXCLUSION BY AGREEMENT. NO DEALER, AGENT, OR EMPLOYEE OF LICENSOR IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS LIMITED WARRANTY.
CUSTOMER is responsible for the selection of the Software to achieve its intended results, and for the installation, use and results obtained from the Software. LICENSOR does not warrant that use of the Software will be uninterrupted or error free, nor that program errors will be corrected. CUSTOMER agrees to assume all risk of loss and damage as a result of its use of the Software, regardless of any negligence or representations by LICENSOR.

The Software is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage (High Risk Activities). Accordingly, LICENSOR and its agents, distributors, partners and/or suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities.

6. LIMITATION ON LIABILITY: The cumulative liability of LICENSOR to the CUSTOMER for any and all claims or damages relating to the Software or this Agreement (regardless of whether such claims sound in contract, tort, or otherwise) shall not exceed the total amount of all license fees (excluding support and maintenance fees) paid to LICENSOR by the CUSTOMER for the Software.

IN NO EVENT SHALL LICENSOR BE LIABLE TO THE CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, MULTIPLE OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION AND LOST DATA, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.

7. TAXES: CUSTOMER agrees to pay (and reimburse and/or indemnify and protect LICENSOR on request if LICENSOR is required to pay) any sales, use, value added (VAT), consumption or other tax (excluding any tax on LICENSOR’s net income) or other fee or charge of any kind or nature that is levied or imposed by any governmental authority on CUSTOMER’s use or license of the Software.

8. INDEMNIFICATION:

1. GENERAL INDEMNITY: CUSTOMER shall indemnify, protect, defend (at LICENSOR’s exclusive option and direction) and hold LICENSOR, its officers, employees, servants, agents, distributors, resellers, partners, successors and assigns, harmless from and against all claims, liabilities, losses, judgments, actions, administrative proceedings, costs, penalties, fines, damages and expenses (including, but not limited to, attorneys’ fees, consultants’ fees, court costs and any other expenses) (collectively the "Claims"), including, without limitation, claims for any type of monetary or economic damages (of any kind or nature), bodily injury, harm, sickness, disease and death, claims based on strict liability and claims for property loss or any other damage, to the extent arising from: (i) the negligence, acts or omissions of CUSTOMER, its employees, contractors, subcontractors, servants or agents related to, or arising from, this Agreement or the Software; (ii) the misuse of the Software by CUSTOMER, its employees, contractors, subcontractors, servants or agents; (iii) the failure of CUSTOMER its employees, contractors, subcontractors, servants or agents, to comply with the applicable laws and regulations regarding or relating to the use of the Software; or (iv) breach by CUSTOMER, its employees, contractors, subcontractors, servants or agents of the terms and conditions of this Agreement. If any Claims are attributable (or alleged to be attributable) to both CUSTOMER and LICENSOR, CUSTOMER agrees, without regard to any concurrent alleged negligence by, or responsibility of, LICENSOR (if any) to provide LICENSOR with the indemnification above, with LICENSOR to comparatively reimburse CUSTOMER for that portion of the loss or damage which is attributable to LICENSOR following a final determination of such comparative responsibility.
    
2. INTELLECTUAL PROPERTY INDEMNITY: Notwithstanding any other provision of this Agreement, CUSTOMER shall indemnify, protect, defend (at LICENSOR’s exclusive option and direction) and hold LICENSOR, its officers, employees, servants, agents, distributors, resellers, partners, successors and assigns, harmless from and against any and all Claims and damages, to the extent arising from any actual or alleged infringement or misappropriation of any patent, copyright, trade secret, trademark, service mark, or other proprietary or intellectual property rights of any third party arising from CUSTOMER’s use of the Software ("Intellectual Property Claims"). The foregoing indemnification for Intellectual Property Claims shall not apply to the extent such infringement or alleged infringement arises solely and exclusively from LICENSOR’s actions or omissions. In such case, LICENSOR shall defend, indemnify, protect and hold CUSTOMER and its officers, employees, servants, and agents, harmless from and against such Intellectual Property Claims.
    
3. INDEMNIFICATION PROCEDURES: A party seeking indemnity hereunder (the "Indemnified Party") shall promptly notify the other party (the "Indemnifying Party") in writing of any claim and provide the Indemnifying Party the facts and related documents constituting the basis for such claim. The failure by an Indemnified Party to timely furnish to the Indemnifying Party any notice or copy required to be furnished under this Section shall not relieve the Indemnifying Party from any responsibility for the matters relating to such notice or copy, except to the extent such failure materially and adversely prejudices the ability of the Indemnifying Party to defend such matter. The Indemnified Party will give the Indemnifying Party authority, information and reasonable assistance requested, at the Indemnifying Party’s expense, necessary to defend or settle such claim.

9. U.S. GOVERNMENT RESTRICTED RIGHTS: The Software and any Documentation are commercial items as that term is defined in 48 C.F.R. 2.101, as amended, consisting of commercial computer software and commercial computer software documentation as such terms are used in 48 C.F.R. 227.7202-1, 227.7202-3 and 227.7202-4, as amended. If the CUSTOMER hereunder is the U.S. Government or any agency or department thereof, the Software and Documentation are licensed hereunder (i) only as a commercial item, and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement. Licensor is Midnight Coders, LLC, 6315 Campbell Rd, Ste 203, Dallas, Texas 75248.

10. EXPORT CONTROL: None of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, Sudan, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Departments list of Specially Designated Nationals or the U.S. Commerce Departments Table of Denial Orders. By downloading or using the Software, CUSTOMER agrees to the foregoing and represents and warrants that it is not located in, under the control of, or a national or resident of any such country or on any such list. In addition, CUSTOMER agrees to comply with all relevant export laws and regulations of the United States and any local laws in its jurisdiction that may impact its right to import, export or use the Software, and represents that it has complied with any regulations or registration procedures required by applicable law to make this license enforceable.

11. MISCELLANEOUS:

1. ASSIGNMENT: LICENSOR may assign this Agreement including any rights hereunder. However, CUSTOMER may not assign this Agreement or any rights herein without the prior, written consent of LICENSOR. Notwithstanding the foregoing, LICENSOR agrees not to unreasonably withhold such consent should CUSTOMER seek to assign its rights under this Agreement in the event of a merger, consolidation, or sale of substantially all of its assets. In such event, CUSTOMER must agree not to retain any copies of the Software or other materials obtained as a result of this Agreement (which must all be transferred to the recipient or destroyed) and the recipient must agree to accept all of the terms and conditions of this Agreement.
    
2. SURVIVAL: Notwithstanding anything to the contrary, Sections 6, 7, 8, and 9 shall survive the termination or expiration of this Agreement.
    
3. PARTIAL INVALIDITY: If any portion of this Agreement is held invalid, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement, and the parties further agree to substitute for the invalid provision a valid provision that most closely approximates the economic effect and intent of the invalid provision.
    
4. WAIVER: Failure or delay on the part of either party to exercise any right, power or privilege or remedy hereunder shall not constitute a waiver thereof. A waiver of default shall not operate as a waiver of any other default or of the same type of default on future occasions. A waiver by either party of its rights hereunder shall not be binding unless contained in a written agreement signed by an authorized representative of the party waiving its rights. The non-enforcement or waiver of any provision on one occasion shall not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing.
    
5. ENTIRE AGREEMENT: This Agreement represents the entire understanding between and among the parties hereto and that it supersedes and displaces any and all prior understandings, communications, statements, representations, promises, agreements or otherwise (regardless of whether in writing or oral) between the parties with respect to the Software. CUSTOMER acknowledges and agrees that no oral, written, express, or implied representations, statements, promises, warranties, agreements or other inducement of any nature or sort have been made by LICENSOR to induce CUSTOMER to execute this Agreement other than as is expressly set forth herein. CUSTOMER acknowledges and agrees that any representations or communications inconsistent with or in addition to, the terms and conditions of this Agreement, shall not be binding upon LICENSOR and shall have no applicability hereunder and that agents, employees, or representatives of LICENSOR do NOT have the authority to make any representations or promises regarding the Software. CUSTOMER also acknowledges and understands that this Agreement may not be modified except in writing signed by an officer of LICENSOR.
    
6. ATTORNEYS’ FEES: In the event of litigation arising from or related to this Agreement, the prevailing party shall be entitled to recover all reasonable attorney’s fees, expert’s fees, and costs.
    
7. GOVERNING LAW AND VENUE: The validity of this Agreement and the rights, obligations and relations of the parties hereunder shall be determined under the substantive laws of the State of Texas and United States of America without giving effect to the principles of conflict or choice of law of the state. The parties hereby acknowledge and agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The venue for any dispute relating to or arising from this Agreement shall solely and exclusively lie in Dallas County, Texas. CUSTOMER specifically waives any personal jurisdiction challenge or venue challenge to any action brought in Dallas County, Texas and agrees to be subject to the jurisdiction of Texas courts.
    
8. WAIVER OF JURY TRIAL: CUSTOMER acknowledges and agrees to waive any and all rights to a jury trial and that any legal dispute filed by the parties relating to the Software or this Agreement shall be submitted to the Judge of any court of competition jurisdiction in Dallas County, Texas. CUSTOMER also acknowledges and agrees that, in the event of any breach by CUSTOMER of its obligations hereunder, LICENSOR may seek injunctive or other equitable relief in any court of competent jurisdiction.
    
9. BINDING EFFECT: This Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, legal representatives, executors, administrators, successors, and permitted assigns.
    
10. CONSTRUCTION / ENGLISH LANGUAGE: The parties acknowledge and agree that the construction and terms of this Agreement shall not be construed in favor of or against either Party. CUSTOMER acknowledges that this Agreement is written in English and that the parties hereto waive any statute, law, or regulation that might provide an alternative law or forum or to have this Agreement written in any language other than English. The parties agree to exclude the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act from this Agreement.

Last updated March 13, 2008