END USER LICENSE AGREEMENT FOR EXPRESS SOFTWARE MANAGER®
IMPORTANT - READ CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE

This End User License Agreement (the “Agreement”) is between you (either an individual or a single entity) and Cherwell Software, LLC, on its own behalf and on behalf of its parent, subsidiaries and affiliates, including, without limitation, Express Software, LLC (collectively “Cherwell”) for Cherwell computer software (the “Software”). The Software includes, but is not limited to: (a) the Cherwell proprietary application database (“Express Software Identification Database®” or “ESID”®) and the data accessed by and/or contained therein, (b) the Logi Analytics, Inc. proprietary software product known as “Logi Info Server”,(c) the reports generated by use of the Software, and (d) the product documentation. BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE, OR ANY COMPONENT THEREOF, YOU AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT INSTALL, COPY OR OTHERWISE USE THE SOFTWARE OR ANY COMPONENT THEREOF. IF PURCHASED, PROMPTLY RETURN THE SOFTWARE AND ALL ACCOMPANYING MATERIALS TO YOUR PLACE OF PURCHASE FOR A REFUND.

The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties and the terms of this Agreement. The Software is licensed, not sold, to you. 

1.	GRANT OF LICENSE.

	(a)	Evaluation License.  If you have downloaded an evaluation version of the Software, which includes Cherwell’s Free Inventory Edition (“Evaluation Software”), then subject to the terms and conditions of this Agreement, Cherwell hereby grants to you a limited, personal, non-transferable and non-exclusive right to install and use the Evaluation Software (“Evaluation License”), in accordance with all United States domestic and import laws, only on the specific number of computer workstations for which you have acquired licenses for the Evaluation Software, only for your internal, non-commercial use. Unless otherwise authorized by Cherwell, certain features of the Evaluation Software will be limited in scope and/or will only operate for a limited period of time (the “Evaluation Period”), as further described by Cherwell at the time it distributes the Evaluation Software to you or as set forth in Cherwell’s product documentation and/or marketing materials.

	(b)	Perpetual Production License.  Subject to the terms and conditions of this Agreement, and to the payment of the fee specified in the applicable purchase order (“Perpetual License Fee”), Cherwell hereby grants to you a perpetual, limited, personal, non-transferable and non-exclusive right to install and use the Software, in accordance with all United States domestic and import laws, only on the specific number of computer workstations for which you have acquired licenses for the Software, as specified in the applicable purchase order, and only for your internal, non-commercial use.

	(c)	Subscription Production License.  Subject to the terms and conditions of this Agreement, and to the payment of the fee specified in the applicable purchase order (“Subscription Fee”), and for the term specified in such purchase order (“Subscription Period”), Cherwell hereby grants to you a limited, personal, non-transferable and non-exclusive right to install and use the Software, in accordance with all United States domestic and import laws, only on the specific number of computer workstations for which you have acquired licenses for the Software and paid the applicable license fee, as specified in the applicable purchase order, and only for your internal, non-commercial use. 

	(d)	Applicable to all license types.

		(i)	You may install a copy of the Software on a network server(s), provided that you acquire and dedicate a license for each computer workstation on the network(s) on which the Software will be used. The Software is “used” when it is loaded in temporary or permanent memory of a computer. In addition, Cherwell grants to you a limited, personal, non–transferable and non-exclusive right to use the Software in connection with a server, application server or desktop application virtualization technology. This includes but is not limited to Citrix®, Microsoft Terminal Server® or VMware® technologies that are capable of creating multiple virtual machines or sessions on which the Evaluation Software can be run. You must acquire and dedicate a license for each such machine, virtual machine or session running a separate instance of the Software.  Any other use of the Software inconsistent with the terms and conditions of this Agreement shall automatically terminate this license. 

		(ii)	The ESID may be installed on servers solely for use in conjunction with your licensed copies of the Software, in accordance with the product documentation.   

		(iii)	Cherwell retains all rights not expressly granted under this Agreement.  There are no implied rights or licenses under this Agreement.  


2.	LIMITS ON USE.

	(a)	You may not, nor permit any other person or organization to, (i) modify, translate, reverse engineer, de–compile, disassemble, create derivative works of or otherwise seek access to the source code of the Software; (ii) copy the Software or Documentation other than for back–up and archival purposes; (iii) permit access to the Software through an application service provider; (iv) use more than the authorized number of copies of the Software; or (v) transfer, move or otherwise relocate the Software from a computer workstation without Cherwell’s prior written consent (except and only to the extent the foregoing prohibitions are not permitted by applicable law).

	(b)	You may not rent, lease, sell, sublicense, or lend the Software. You may not distribute, re-transmit, publish, broadcast or in any way transfer the Software, except as expressly authorized by this Agreement.

	(c)	You may not remove from any copies of the Software any product identification, patent, copyright or other notices.

	(d)	You may not assign your rights or obligations under this Agreement to any person or entity without the prior written consent of Cherwell and its suppliers and licensors, as applicable.

	(e)	During the term of this Agreement, you may make and keep in your possession copies of the Software solely for backup, archival, or disaster recovery purposes. All copies must include all applicable copyright notices and other proprietary rights legends that come with the original Software.  You shall not disclose the Software to any third party in whole or in part.

	(f)	You shall:  return the Software together with any copies thereof, to Cherwell and/or its suppliers and licensors, as applicable, or certify its having been destroyed when you no longer use the Software in accordance with this Agreement, or when your right to use the Software is terminated; not remove the Software from a country in which use is licensed or from any computer workstation or server on which it is licensed without Cherwell’s express written permission.  

3.	THIRD PARTY SOFTWARE.  Certain third party components provided in or with the Software (“Third Party Components”) are subject to various other terms and conditions imposed by the licensors of such Third Party Components. Your use of the Third Party Components is subject to and governed by these Third Party Component licenses.  You agree to comply with the terms and conditions contained in all such Third Party Component licenses. Cherwell makes no grants, implied rights or licenses for Third Party Components under this agreement.

4.	TERMINATION.

	(a)	Evaluation License.  This Agreement will terminate upon expiration of the Evaluation Period.  If you violate any term of this Agreement, Cherwell may terminate this agreement immediately without waiving any other rights. If this Agreement is terminated, you must return all copies of the Software immediately to Cherwell, or certify their destruction.

	(b)	Production Licenses.

		(i)	Perpetual Production License.  This Agreement is effective until terminated.  If you violate any term of this Agreement, Cherwell may terminate this agreement immediately without waiving any other rights. If this Agreement is terminated, you must return all copies of the Software immediately to Cherwell, or certify their destruction.

		(ii)	Subscription Production License.  This Agreement is effective for the duration of the Subscription Period, and may be renewed pursuant to the terms and conditions specified in the applicable purchase order.  If you violate any term of this Agreement, Cherwell may terminate this agreement immediately without waiving any other rights. If this Agreement is terminated, you must return all copies of the Software immediately to Cherwell, or certify their destruction.

5.	SAFEGUARDS/AUDIT RIGHTS.  You agree to: (i) implement internal safeguards to prevent any unauthorized copying, distribution, or use of the Software; (ii) provide Cherwell, on request, with written certification of the number of computer workstations on which copies of the Software have been installed and/or used; and (iii) allow Cherwell to audit your premises and systems for compliance with this Agreement during your regular business hours. Cherwell will pay for the cost of the audit unless the audit shows a discrepancy of five percent (5%) or more between the actual number of computer workstations on which you are using the Software and the number of licenses that you have purchased from Cherwell, in which event, you shall immediately pay Cherwell the applicable fees for the required additional licenses and any costs incurred by Cherwell associated with conducting the audit.

6.	Maintenance and Support.  Maintenance and Support is offered on no less than an annual basis and will commence and be invoiced in accordance with Cherwell’s order form. Cherwell will invoice Customer for Maintenance and Support renewal fees at least sixty (60) days prior to the end of each term. Maintenance and Support fees increase as Customer adds additional licenses. Failure to pay any amount due under this Agreement may result in suspension of Maintenance and Support. 

	(a)	Maintenance.  “Maintenance” entitles Customer to receive updates, upgrades, patches, bug fixes and new releases or versions of the Software, including updated documentation, as Cherwell may provide from time to time without requirement of a separate license agreement, and without additional charge other than payment of the annual Maintenance and Support fee. 

	(b)	Support.  “Support” entitles Customer to technical assistance (via telephone and email) with Customer’s ongoing use of the Licensed Software, Monday through Friday, 7:00 a.m. to 4:00 p.m. (Pacific Standard Time).  Cherwell will provide support for the most current version of the Software, and for a minimum period of six (6) months following the release of a new version. Cherwell will use its best efforts to answer Customer’s specific questions and provide support in accordance with Cherwell’s maintenance and support guidelines. Support does not include any third party products that are not part of the Software. 

For customers who purchase Support from Cherwell resellers outside the US and Canada, Support may be delivered by the support provider servicing the territory, during the support provider’s regular business hours.  Depending on the territory, the support provider will be a regional Cherwell office or an authorized Cherwell-trained international distributor or reseller with access to Cherwell technical staff.   


7.	COPYRIGHT.  Cherwell and its suppliers and licensors retain all right, title and interest in and to the Software, including all intellectual property rights therein. 

8.	EXPORT.  You agree that the Software will not be shipped, transferred or exported into any country or used by any person or entity or in any manner prohibited by the United States Export Administration Act, the International Traffic in Arms Regulations of the U.S. State Department, or any other export laws, restrictions, or regulations of any jurisdiction. You warrant and represent that neither the U.S. Bureau of Export Administration nor any other U.S. agency has suspended, revoked, or denied your export privileges.

9.	U.S. GOVERNMENT RESTRICTED RIGHTS.  The Software is provided with U.S. Government RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in FAR 52.227-14(g) (Jun. 1987) or DFAR 252.227-7013 (c)(1)(ii)(Oct. 1988). All Software and documentation delivered to: (i) civilian agencies of the U.S. Government pursuant to solicitations issued after December 1, 1995, or (ii) the Department of the Defense of the U.S. Government on solicitations issued after September 29, 1995, are delivered with only the commercial licensing rights set forth in this Agreement. Manufacturer is Cherwell Software, LLC, 12295 Oracle Blvd., Suite 200, Colorado Springs, CO  80921 USA.

10.	GOVERNING LAW AND ATTORNEYS’ FEES.  This Agreement is governed by the laws of the State of Washington, USA, excluding its conflict of laws rules. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party will be entitled to recover its costs, including reasonable attorneys’ fees.

11.	LIMITED SOFTWARE WARRANTY AND WARRANTY DISCLAIMER

	(a)	Evaluation License.

		(i)	NO WARRANTY.  You understand that neither Cherwell Software nor any of its suppliers or third-party licensors nor their agents or representatives shall be responsible for loss, destruction, or alteration of programs, data and other information resulting from your use of the Evaluation Software.  YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF THE EVALUATION SOFTWARE IS AT YOUR OWN RISK.  CHERWELL SOFTWARE AND ITS SUPPLIERS AND LICENSORS PROVIDE THE EVALUATION SOFTWARE (AND ALL DATA THEREIN) “AS IS” AND WITH ALL FAULTS, AND EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CHERWELL SOFTWARE AND ITS SUPPLIERS MAKE NO WARRANTIES WITH RESPECT TO DATA ACCURACY AND COMPLETENESS OR THAT THE EVALUATION SOFTWARE AND/OR DATA PROVIDED UNDER THIS AGREEMENT WILL BE VIRUS-FREE OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY BY JURISDICTION.

	(b)	Production Licenses.

		(i)	LIMITED WARRANTY.  For a period of ninety (90) days from the date you receive the Software under either a Perpetual Production License or a Subscription Production License, Cherwell warrants that, when used in accordance with the product documentation the unmodified Software will perform substantially in accordance with the product documentation. Notwithstanding the foregoing, the foregoing limited warranty shall not apply to any defects in the Software that result from modification made to the Software by a party other than Cherwell, accident, abuse, or misapplication.  If the Software fails to comply with such warranty, Cherwell shall, at its option, either (a) develop a fix for the defect (b) upgrade the Software to a newer version or (c) refund the price paid for the Software. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Outside the United States, neither these remedies nor any product support services offered by Cherwell are available without proof of your purchase from an authorized international source. THIS SECTION IS CHERWELL SOFTWARE’S ENTIRE LIABILITY, AND YOUR SOLE AND EXCLUSIVE REMEDY, FOR ANY BREACH OF THE LIMITED SOFTWARE WARRANTY SET FORTH ABOVE.

		(ii) WARRANTY DISCLAIMER.  EXCEPT FOR THE LIMITED SOFTWARE WARRANTY SET FORTH ABOVE IN SECTION 10 (B)(I) AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, CHERWELL AND ITS SUPPLIERS AND LICENSORS PROVIDE THE SOFTWARE (AND ALL DATA THEREIN) “AS IS” AND WITH ALL FAULTS, AND EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CHERWELL SOFTWARE AND ITS SUPPLIERS AND LICENSORS MAKE NO WARRANTIES WITH RESPECT TO DATA ACCURACY AND COMPLETENESS OR THAT THE SOFTWARE AND/OR DATA PROVIDED UNDER THIS AGREEMENT WILL BE VIRUS-FREE OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY BY JURISDICTION.

12.	EXCLUSIONS AND LIMITATION OF LIABILITY.  EXCEPT AS STRICTLY REQUIRED BY APPLICABLE LAW, CHERWELL SOFTWARE AND ITS SUPPLIERS AND LICENSORS SHALL IN NO EVENT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR CONFIDENTIAL INFORMATION, LOSS OF PRIVACY, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SOFTWARE AND/OR DATA PROVIDED UNDER THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH DAMAGES MAY BE BASED, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND EVEN IF CHERWELL SOFTWARE OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CHERWELL SOFTWARE’S OR ITS SUPPLIERS’ OR LICENSORS’ TOTAL, AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE GREATER OF (I) THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE THAT GAVE RISE TO THE DAMAGES, OR (II) FIVE DOLLARS (US$5). THESE DAMAGE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

13.	MISCELLANEOUS.  You agree to comply with all applicable laws, rules and regulations regarding use of the Software. This Agreement constitutes the entire agreement between you and Cherwell with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, representations and/or communications, written or oral. This Agreement may only be modified or changed in writing by authorized representatives of each party. No other terms and conditions shall apply, including any terms or conditions contained in any purchase order, request for quote (RFQ), bid proposal, response hereto, or other operational form submitted by you or your agent which are in addition to or different than the terms and conditions of this Agreement contained herein.  Any terms and conditions which are different from or in addition to those contained herein are hereby objected to and shall be of no effect unless specifically agreed to in writing by an authorized representative of Cherwell. Delivery of the Software or other performance by Cherwell with respect to the Software shall not constitute Cherwell’s acceptance of any additional or different terms and conditions. If any part of this Agreement is held to be unenforceable as written, it will be replaced to the extent possible with a provision that comes closest to the meaning of the original provision, and will not affect the enforceability of any other provision of this Agreement.

Should you have any questions concerning this Agreement, or if you desire to contact Cherwell for any reason, please contact the Cherwell Express Metrix representative serving your company, or write: Cherwell Software, LLC, 12295 Oracle Blvd., Suite 200, Colorado Springs, CO 80921 USA.