End user License Agreement

This End User LICENSE AGREEMENT (this “Agreement”) sets forth the terms pursuant to which Ennetix, Inc. (“Ennetix”) is making the software and services set forth in the Order to which this Agreement is attached and/or incorporated by reference (the “Service”) available to you (“Customer”).
BY Accessing OR USING THE SErvice, Customer AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF Customer does NOT AGREE TO THE TERMS OF THIS AGREEMENT, customer should not access or USE THE Service.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND the Applicable ENTITY TO the terms of this Agreement. IF YOU DO NOT HAVE the Applicable AUTHORITY, OR IF YOU DO NOT AGREE WITH the Terms of this Agreement, YOU MUST NOT use the SErvice.
1.	Definitions. Capitalized terms used and not otherwise defined in this Agreement shall have the following meanings:

1.1	“Affiliate” means any entity that is controlled by a party, where “control” means the ownership of, or the power to vote, more than fifty percent (50%) of the voting stock, shares, or interests in an entity.
1.2	“Customer Data” means any and all electronic data and information submitted by or for Customer through the Service.
1.3	“Documentation” means the then-current, commercially available user manuals, training materials, and technical manuals relating to the Service that are made available to Customer by Ennetix.
1.4	“Order” means a purchase order or other ordering instrument executed by authorized representatives of each of Customer and Ennetix that sets forth the Ennetix products and/or services to be purchased or licensed by Customer. 
2.	License Grant. Subject to the terms of this Agreement, Ennetix hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, and revocable license to use the Service during the Term (as defined in Section 3 below). The Service is licensed to the Customer and not sold. Customer acknowledges that the Service is protected by copyrights and other intellectual property and proprietary rights. Ennetix reserves all of these rights with respect to the Service. Customer acknowledges and agrees that, except for the express license granted pursuant to this Section 2, no right, title, interest, or license in or to the Service, whether by implication, estoppel, or otherwise, is granted, assigned, or transferred to Customer.

3.	Term and Termination. 	
3.1	Term. Ennetix will make the Service available to Customer for the term set forth in the Order (the “Term”) unless earlier terminated in accordance with the terms set forth herein. 

3.2 	Termination. Either party shall have the right to terminate this Agreement upon thirty (30) days prior written notice to the other party if the other party materially breaches the terms of this Agreement and fails to cure such breach within the applicable thirty (30) day notice period. Ennetix may also terminate this Agreement at any time upon sixty (60) days’ notice to Customer. Upon termination, Customer must immediately cease all use of the Service and destroy all copies of the Documentation within Customer’s possession or control.

4.	Permitted Use of the Service.
4.1	Authorized Users. Only Customer’s employees and contractors who are authorized by Customer to use the Service (“Authorized Users”) may access and use the Service.  All Authorized Users must be registered to use the Service and receive passwords. The customer is responsible for maintaining the confidentiality of its passwords. Customer is fully liable for all use of the Service under its passwords, including any use by a user not authorized by Customer who accesses the Service using Customer’s passwords.  Ennetix may terminate a password and require a new password if it believes that the password is being used without authorization. The customer agrees to promptly notify Ennetix of any unauthorized use of its passwords or other breach of security.  Authorized Users shall be limited to employees and contractors of Customer who have been informed of the confidential nature of the Service and the restrictions set forth in this Agreement.
4.2	Usage Limits. The Service is subject to the usage limits specified in the Order and/or the applicable Documentation. 
4.3	 Restrictions. The customer agrees that it will not:
(a)	cause or permit de-compilation or reverse engineering or disassembly of all or any portion of the Service or create derivative works based on the Service or Documentation, or any portions thereof; 
(b)	transfer the Service to a different software database platform, operating system, or environment or use all or any portion of the Service or Documentation with any other computer software programs;
(c)	export or use the Service or Documentation in violation of U.S. or other applicable laws or regulations, including the U.S. Department of Commerce export administration regulations;
(d)	use, or authorize or permit any third party to use or access, the Service or Documentation, except as expressly permitted herein;
(e)	translate, modify, or transmit the Service or Documentation, except as expressly permitted herein;
(f)	reproduce or copy the Service or Documentation, or any portion thereof, except as expressly permitted herein, or delete, fail to reproduce or modify any patent, copyright, trademark or other proprietary rights notices which appear on or in the Service or Documentation; or
(g)	directly or indirectly market, sell, sublicense, relicense, distribute, disclose, transfer, use, rent, or lease the Service or Documentation, or any portion thereof, for third-party use, third-party training, facilities management, or time-sharing, use as an application service provider, or for service bureau use.
4.1	Authorized Users. Only Customer’s employees and contractors who are authorized by Customer to use the Service (“Authorized Users”) may access and use the Service.  All Authorized Users must be registered to use the Service and receive passwords.  The customer is responsible for maintaining the confidentiality of its passwords. Customer is fully liable for all use of the Service under its passwords, including any use by a user not authorized by Customer who accesses the Service using Customer’s passwords.  Ennetix may terminate a password and require a new password if it believes that the password is being used without authorization. The customer agrees to promptly notify Ennetix of any unauthorized use of its passwords or other breach of security.  Authorized Users shall be limited to employees and contractors of Customer who have been informed of the confidential nature of the Service and the restrictions set forth in this Agreement.

5.	Payment and Taxes. In consideration for the rights granted to Customer hereunder, Customer shall pay to Ennetix the fees set forth in the Order to which this Agreement is attached and/or incorporated by reference. Customer shall be responsible for and pay all applicable sales, use, personal property, value-added or similar taxes, tariffs, or charges imposed by any government authority in connection with Customer’s access to and use of the Service. All amounts paid pursuant to this Agreement are non-returnable and nonrefundable.

6.	DISCLAIMERS. The service is provided “as Is” and “As Available.” Ennetix MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT TO THE Service PROVIDED PURSUANT TO THIS AGREEMENT. Ennetix EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL WARRANTIES ARISING FROM CONDUCT, COURSE OF DEALING OR CUSTOM OF TRADE, AND ALL WARRANTIES OF TITLE AND NON-INFRINGEMENT. Ennetix DOES NOT WARRANT THAT THE Service is OR WILL BE ERROR-FREE OR THAT THE USE OR OPERATION OF THE Service WILL BE UNINTERRUPTED OR THAT SOFTWARE ERRORS CAN OR WILL BE CORRECTED.

7.	Confidentiality.
7.1	 Confidentiality. Each party (the “Receiving Party”) acknowledges that it will have access to the Confidential Information of the other party (the “Disclosing Party”).  For purposes of this Agreement, “Confidential Information” means information, that is of value to the Disclosing Party and is treated as confidential and which is either marked as confidential or proprietary, or which, given the nature of the information or circumstances of disclosure, should be reasonably deemed by the Receiving Party to constitute Confidential Information.  Ennetix’s Confidential Information includes, without limitation, the Service, object, and source code for the Service, and any associated Documentation.  The Receiving Party agrees to use the Confidential Information of the Disclosing Party solely for purposes of performing its obligations or exercising its rights under this Agreement.  The Receiving Party agrees to discuss the Confidential Information of the Disclosing Party only with and to transmit the Confidential Information only to, those officers, employees, and consultants of the Receiving Party who have a need to know the Confidential Information for the purposes set forth herein and who have agreed in writing to be bound by confidentiality obligations at least as restrictive as those set forth herein.  
7.2	 Exceptions. The Receiving Party’s obligations with respect to Confidential Information of the Disclosing Party shall not apply to the extent such Confidential Information: (a) is previously known to the Receiving Party without restriction on disclosure; (b) ceases to be secret or confidential except by reason of a breach of this Agreement by the Receiving Party; (c) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; or (d) was received from a third party without obligations of confidence and without breach of this Agreement.  In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent such disclosure is required by applicable law or by any governmental authority, provided the Receiving Party notifies the Disclosing Party, if permitted by law, of the applicable legal requirements before such disclosure occurs to enable the Disclosing Party to obtain such protection as may be available to preserve the confidentiality of such information.

8.	Intellectual Property Rights.
8.1	 Ennetix’s Intellectual Property. Ennetix (or its licensors) retains all rights, title, and interest in and to the Service, and all copyright and other intellectual property and proprietary rights to all portions of the Service, and all modifications, alterations, derivative works, and enhancements thereto, and all copies thereof.  Except as specified herein, Customer does not acquire any rights, express or implied, in the Service.  No license, right, or interest in any Ennetix trademark, trade name, or service mark is granted pursuant to this Agreement.  
8.2	 Customer Data. Customer shall own any Customer Data that it provides in connection with the Service.  Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, timeliness, appropriateness, and intellectual property ownership or right to use all Customer Data, and Ennetix shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store Customer Data for any reason.  Ennetix reserves the right to purge and delete Customer Data, if any, stored on the Service on or following the expiration of the Term or otherwise upon termination of this Agreement.
8.3	License to Customer Data. Customer hereby grants to Ennetix the non-exclusive right and license to (a) receive, retrieve, process, use, and transmit any Customer Data necessary or reasonably desirable to perform its obligations and duties under the Agreement and provide the Service to Customer and Authorized Users; and (b) use, copy, manipulate and store any Customer Data that will be archived, stored or otherwise transmitted in connection with the Service. 

9.	Limitation on Liability.
9.1	EXCLUSION OF DAMAGES. IN NO EVENT SHALL Ennetix OR ANY OF ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES BE LIABLE TO Customer OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, OR COMPUTER FAILURE, DELAY OR MALFUNCTION), EVEN IF ENNeTIX HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.  
9.2 	LIMITATION OF LIABILITY. Ennetix’s TOTAL AGGREGATE LIABILITY TO Customer OR ANY OTHER PERSON OR ENTITY FOR ANY AND ALL CLAIMS AND DAMAGES ARISING FROM OR OUT OF THIS AGREEMENT (WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) SHALL IN NO EVENT EXCEED the amount of the fees paid bo Ennetix by Customer in connection with the Service.
9.3	 EXCEPTIONS. THE FOREGOING LIMITATIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.

10.	Miscellaneous.
10.1	Governing Law. The laws of the State of California shall govern this Agreement, without reference to conflicts of law rules or principles. 
10.2	 Independent Contractors. Nothing in this Agreement shall be construed to create an agency, joint venture, partnership, or other form of business association between the parties.  Neither party has the right or authority to make any contract, representation, or binding promise of any nature on behalf of the other party, and neither party shall hold itself out as having such right or authority. 
10.3	 No Waiver. The failure on the part of either party to exercise any right or remedy hereunder will not operate as further waiver of such right or remedy in the future or any other right or remedy.
10.4 	Severability. In the event that any provision of this Agreement is held invalid or unenforceable in any circumstances by a court of competent jurisdiction, the remainder of this Agreement, and the application of such provision in any other circumstances, will not be affected thereby.
10.5	 Non-Exclusivity. Ennetix shall not be limited or precluded in any way from providing the Service or services of any kind to any entity as it, in its sole discretion, deems appropriate.
10.6 	Entire Agreement. This Agreement constitutes the final and entire agreement between the parties and supersedes all prior written and oral agreements, understandings, or communications with respect to the subject matter of this Agreement.