TX360™ End User License Agreement THIS END USER LICENSE AGREEMENT IS A CONTRACT BETWEEN YOU (“PARTICIPANT”) AND SWAN ISLAND NETWORKS, INC. (“SWAN”) FOR THE USE OF TX360-AND RELATED SOFTWARE, CONTENT, ALERTS, ASSOCIATED MEDIA, PRINTED MATERIALS AND ONLINE OR ELECTRONIC DOCUMENTATION (“PRODUCT”). PARTICIPANT AGREES TO ALL OF THE TERMS OF THIS AGREEMENT BY USING ANY COMPONENT OF TX360, OR ITS SOFTWARE, INCLUDING WITHOUT LIMITATION, INSTALLING OR OTHERWISE USING TX360, ASSOCIATED MEDIA OR DATA FEEDS, PRINTED MATERIALS OR ANY ONLINE OR ELECTRONIC DOCUMENTATION. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MAY NOT USE, COPY OR INSTALL THE SOFTWARE AND YOU MUST IMMEDIATELY DELETE THE SOFTWARE FROM YOUR COMPUTER. In addition, by installing, copying, or otherwise using subscription updates that you receive as part of the Product (“UPDATES”), you agree to be bound by the additional license terms that accompany such UPDATES. If you do not agree to the additional license terms that accompany such UPDATES, you may not install, copy, or use such UPDATES. 1. Grant of License For each license you have acquired for the Product, one individual is authorized to use the Product according to the terms of this EULA. Unless expressly stated otherwise, the Product may not be separated for use by more than the one individual authorized to use the Product. A single subscription may have multiple licenses to use the Product associated with that subscription; nonetheless, each license must be dedicated to use of the Product by one individual. Specifically: a. If you are an entity, SWAN grants to you the right to designate one individual within your organization to have the sole right to make and use copies of the Product in accordance with the terms of this EULA. b. If you are an entity and have acquired this EULA as part of a multiple subscription license, SWAN grants to you the right to designate one individual per license (i.e., on a one-for-one basis) within your organization to have the sole right under each such license to make and use copies of TX360 Product for which a subscription has been obtained in accordance with the terms of this EULA. 1.1 Scope Subject to Participant’s compliance with the terms and conditions of this Agreement, SWAN hereby grants Participant a limited, nonexclusive, nontransferable right and license during the term of this Agreement to perform the following: use the Product solely for the purpose of accessing the Product data (Alert Information) for the sole purpose of using the Product according to the terms and conditions of this Agreement and subject to the subscription agreement for the Product. 1.2 Restrictions a. The license to use the Product is limited solely to the one (1) individual representative of the Participant (Participant Representative). Participant Representative shall be an employee of Participant. No one other than the Participant Representative shall have any right to use in any manner the Product or Software. Participant shall be responsible for Participant Representatives compliance with the terms and conditions of this Agreement. All rights not expressly granted to Participant are reserved by SWAN. Participant shall not replicate, repackage, modify, create derivative works of, reverse engineer, sell, transfer, sublicense or distribute the Product or the Software. Participant agrees to not copy, forward, edit, or print the Product Alert Information or other materials distributed as part of the Product, except as expressly permitted by SWAN. Participant understands and agrees that it may not sell, transfer, distribute, or license the Alert Information or other materials distributed as part of the Product to other parties. In no event will Participant have the right to request payment from other parties for access to Alert Information or other materials distributed as part of the product, unless as part of a separate Reseller agreement with SWAN. b. Export Restrictions. The Product is of U.S. origin. Participant agrees to comply with all applicable international and national laws that apply to the Product, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. c. All Updates shall be considered part of the Product and subject to the terms and conditions of this EULA. Additional license terms may accompany Updates (as defined in the first paragraph of this EULA). By using any Updated version of the Product, you agree to be bound by the terms accompanying each such Update. If you do not agree to the additional license terms accompanying such Updates, do not use such Updates. d. No Transfer. You may not transfer any of your rights under this EULA or any Update or Product and/or Software upgrade. 1.3 Proprietary Rights The Product is protected by copyright and other intellectual property laws and treaties. SWAN or its suppliers own the title, copyright, and other intellectual property rights in the Product. Participant acknowledges and agrees that no title to the intellectual property in the Product or Software is transferred to Participant under the terms of this Agreement and that SWAN retains full title and ownership of the Product and rights to the Software, including all proprietary and intellectual property rights therein. The Product is licensed, not sold. 2. Installation and Support Participant shall be responsible for providing its own computer equipment and Internet access to use the Service. SWAN may provide reasonable technical support to Participant to assist in its use of the System, at SWAN’s discretion. 3. Confidentiality 3.1 Confidential Information Participant acknowledges that, in the course of performing this Agreement, Participant may receive confidential information relating to TX360, SWAN, or other parties which is not generally made available to the public. Such confidential information may include, but is not limited to, Alert Information, data feeds, and information relating to TX360 or a Product content providers business, employees, technology, methods, processes, and intellectual property related to the Product or the Software (Confidential Information). Information expressly identified by SWAN as Confidential Information is property of SWAN, its licensors, and Product content providers. Participant agrees that, except as set forth in this Agreement, Participant will not disclose Confidential Information to any other party without the prior written consent of SWAN. Participant agrees that it will not use the Confidential Information except as required to perform the terms of this Agreement. Regular service Alert Information that is not part of a premium service or designated as Confidential Information (“Unrestricted Alert Information”), has been deemed by Product content providers to be non-confidential and, thus, Participant will be able to print, save into local drives, and copy as permitted by Product functions. The restrictions set forth in Section 1.2 shall not apply to Unrestricted Alert Information, except that Participant is prohibited from selling, transferring, licensing, or otherwise distributing Unrestricted Alert Information in any way. 3.2 Vendors and Partners and Information Providers Participant agrees that in no event will it contact any TX360 vendor, partner or other content provider regarding the Product, Software, or Alert Information, including for the purpose of asking technical or related questions. 4. Term and Termination 4.1 Termination Either party may terminate this Agreement for any or no reason, effective immediately upon the other party’s receipt of written notice. Without prejudice to any other rights, SWAN may cancel this EULA if Participant does not abide by the terms and conditions of this EULA, in which case Participant must destroy all copies of the Product and all of its component parts. 4.2 Effect of Termination Upon termination of this Agreement for any reason, (i) Participant shall immediately cease all use of the Product; (ii) Participant shall promptly uninstall and destroy the Software; and (iii) Participant shall return to SWAN all related Confidential Information in its possession. 4.3 Consent To Use Of Data. Participant agrees that SWAN and its affiliates may collect and use technical information you provide as a part of support services related to the Product. SWAN agrees not to use this information in a form that personally identifies you unless you have submitted comments or other information intended to be communicated to other users. 4.4 Reference. Participant agrees that SWAN and its affiliates may collect make reference of Participant’s use of TX360 and other Swan Island Networks products, as appropriate, in marketing and sales materials, including web pages, collateral and other materials. 5. Warranty Disclaimer PARTICIPANT HEREBY ACKNOWLEDGES AND AGREES THAT THE PRODUCT, INCLUDING THE SOFTWARE, IS PROVIDED AS IS AND WITH ALL FAULTS. PARTICIPANT USES THE SYSTEM, SOFTWARE, ALERT INFORMATION, AND ANY OTHER INFORMATION PROVIDED ON THE PRODUCT, AT PARTICIPANTS OWN RISK. THE INFORMATION ON THE PRODUCT, INCLUDING THE ALERT INFORMATION, HAS NOT BEEN APPROVED OR RECOMMENDED BY AN EMERGENCY RESPONSE ORGANIZATION. ALL INFORMATION, INCLUDING THE ALERT INFORMATION, IS PROVIDED FOR REFERENCE AND INFORMATIONAL PURPOSES ONLY. NEITHER SWAN, PRODUCT CONTENT PROVIDER, NOR ANY EMERGENCY RESPONSE ORGANIZATION MAKE ANY RECOMMENDATION (EXPRESS OR IMPLIED) AS TO A COURSE OF ACTION IN RELATION TO ANY INFORMATION PROVIDED ON THE PRODUCT. SWAN AND PRODUCT CONTENT PROVIDERS SHALL NOT BE RESPONSIBLE FOR USE OF PRODUCT INFORMATION BY PARTICIPANT OR ANY OTHER PARTY. SWAN DOES NOT WARRANT THAT THE USE OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE ALERT INFORMATION OR ANY OTHER INFORMATION PROVIDED VIA THE PRODUCT WILL BE ACCURATE, COMPREHENSIVE, OR COMPLETE. SWAN HEREBY DISCLAIMS ANY AND ALL LIABILITY FOR ANY ACT OR OMISSION OF PARTICIPANT OR THIRD PARTIES AS A RESULT OF OR IN RESPONSE TO (I) ALERT INFORMATION OR OTHER INFORMATION RECEIVED BY PARTICIPANT OR THIRD PARTIES VIA THE SYSTEM; AND (II) ALERT INFORMATION OR OTHER INFORMATION PARTICIPANT OR THIRD PARTIES DO NOT RECEIVE VIA THE PRODUCT, FOR WHATEVER REASON. PARTICIPANT FURTHER ACKNOWLEDGES THAT SWAN’S PROVISION OF THE PRODUCT TO PARTICIPANT MAY REQUIRE THE PARTICIPATION AND/OR CONSENT OF THIRD PARTIES NOT CONTROLLED BY SWAN. SWAN EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL, AND CERTAIN OTHER DAMAGES: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SWAN OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE PRODUCT, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY OF SWAN OR ANY SUPPLIER, AND EVEN IF SWAN OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 6. LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any damages that Participant might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of SWAN and any of its suppliers under any provision of this EULA and your exclusive remedy for all of the foregoing (except for any remedy of repair or replacement elected by SWAN with respect to any breach of the Warranty Disclaimer) shall be limited to the greater of the amount actually paid by you for the Product or U.S.$5.00. The foregoing limitations, exclusions, and disclaimers (including as stated in the Warranty Disclaimer) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose. 7. Indemnification Participant agrees to indemnify and hold harmless SWAN and its participant against all claims, damages, losses, expenses, suits and actions brought by a third party, including reasonable attorneys fees, based on: (i) Participants use of the Product or Software in violation of this Agreement; or (ii) Participants use, disclosure or failure to disclose any Alert Information or other information received via the Product, and any act or omission by Participant or a third party as a result of such use, disclosure or failure to disclose. SWAN agrees to notify Participant promptly in writing of any such claim. 8. Limitation of Liability IN NO EVENT SHALL SWAN OR ITS LICENSORS, VENDORS, OR OTHER INFORMATION PROVIDERS BE LIABLE TO PARTICIPANT OR THIRD PARTIES FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS AND/OR LOSS OF BUSINESS, ARISING OUT OF OR IN ANY WAY RELATED TO (I) THIS AGREEMENT; (II) THE PERFORMANCE OF THIS AGREEMENT; (III) THE USE OF THE SYSTEM, SOFTWARE, INFORMATION OR ALERT INFORMATION PROVIDED UNDER THIS AGREEMENT; AND/OR (IV) AN ALLEGED BREACH OF THIS AGREEMENT, WHETHER OR NOT SWAN OR THIRD PARTIES KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. 9. Survival The following provisions shall survive termination of this Agreement for any reason: Section 1.3 (Proprietary Rights); Section 3 (Confidentiality); Section 4.2 (Effect of Termination); Section 5 (Warranty Disclaimer); Section 7 (Indemnification); Section 8 (Limitation of Liability); Section 9 (Survival); and Section 10 (General). 10. General 10.1 Waiver The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. 10.2 Severability In the event of invalidity of any provision of this Agreement, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement. 10.3 Governing Law This Agreement will be governed by the laws of the State of Oregon without application of Oregon conflicts of law principles and the United Nations Convention on Contracts for the International Sale of Goods. Participant irrevocably consents to the exclusive jurisdiction of the state and federal courts in Multnomah County, Oregon, for any action, suit or proceeding in connection with the System, the Software or this Agreement. The prevailing party in a suit shall be entitled to reimbursement for its costs and expenses, including any costs incurred in collecting overdue payments and attorneys fees at trial and on appeal. 10.4 No Agency Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. 10.5 Assignment This Agreement and any rights and responsibilities hereunder may not be assigned or delegated by Participant, including by action of law, without the express written consent of SWAN. Any assignment or delegation in violation of this Section will be void and of no effect. 10.6 Entire Agreement This is the entire agreement between the parties which supersedes any prior agreement, whether written or oral, relating to the subject matter of this Agreement. This Agreement may only be modified by mutual agreement of the parties in writing. 10.7 Notices All notices to SWAN related to this Agreement shall be addressed to license@swanisland.net. All notices to Participant related to this Agreement shall be addressed to the Participant Representative at the mailing address or e-mail address provided by Participant in the System subscription form.