End User License Agreement

This is an End User License Agreement (the "Agreement") between Bandura, LLC ("BANDURA"), You (or "User" or "your") and the insurance company affiliate of American International Group, Inc. that issued the insurance policy providing the TechGuard SHIELD eLearning platform and/or the IP Blocking Solution to you (with its affiliates, “AIG”) (each, a "Party" and collectively, the "Parties").

Subject to the terms and conditions of this Agreement, Bandura is providing the User, as a qualified policyholder of a cyber insurance policy issued by AIG, (i) a license to use the TechGuard SHIELD eLearning software ("TechGuard SHIELD") and the content delivered by BANDURA through such software (“Bandura Content”); and/or (ii) one Bandura network security appliance (the “Network Appliance”), with the necessary IP Blocking software ("Security Software"), to deliver the blacklist IP blocking service (“IP Blocking Service”). Any reference in this Agreement to "Licensed Software" shall mean the TechGuard SHILED and/or the Security Software, as applicable. Any references in this Agreement to the IP Blocking Service shall only apply if User is entitled to receive and elects to receive the IP Blocking Service. This Agreement is valid without BANDURA's or AIG's electronic acceptance of its terms and becomes effective upon the earlier of User's electronic acceptance of its terms or User's use of the Licensed Software or the IP Blocking Service. BY ACCESSING THE LICENSED SOFTWARE OR IP BLOCKING SERVICE OR BY CLICKING THE "I ACCEPT" BUTTON YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.

1. Grant of License.

User acknowledges and agrees that: (i) AIG has contracted with BANDURA to make the Licensed Software, IP Blocking Service and associated services available to you at no cost to you; (ii) the Licensed Software, IP Blocking Service and all associated services are being licensed and provided by BANDURA, and not by AIG; (iii) AIG shall not be liable for any damages to User caused by the Licensed Software, IP Blocking Service or any associated services; (iv) BANDURA will have access to certain of your information and has developed a policy, which can be viewed at bandurasystems.com/privacy-policy.html, to address your privacy concerns; and (v) AIG will have access to certain of your information and has developed a policy, which can be viewed at www.aig.com, to address your privacy concerns.

Subject to this Agreement, BANDURA grants User a non-exclusive, non-assignable, non-transferable, revocable, limited right and license to use the Licensed Software and IP Blocking Service. User shall not (i) license, sublicense, lease, sublease, sell, resell, transfer, assign, distribute or otherwise make available to any third party the Licensed Software, IP Blocking Service or the BANDURA content, (ii) modify or make derivative works based upon the Licensed Software, IP Blocking Service or the BANDURA content; (iii) commercially exploit the Licensed Software, IP Blocking Service or the BANDURA content in any way, or (iv) create Internet "links" to the Licensed Software or "frame" or "mirror" any BANDURA content contained in, or accessible from, the Licensed Software on any other server, wireless or Internet-based device; (v) impersonate another user of the Licensed Software or IP Blocking Service; or (vi) use the Licensed Software or IP Blocking Service to violate the rights of or cause injury to any person or entity.

You are solely responsible for maintaining the confidentiality of the access information provided to you for access to the Licensed Software ("Credentials"), and you agree to keep this information confidential. You are solely responsible for all activity that occurs through use of the Credentials. You will not: (1) use another user's Credentials to obtain copies of or access to the Licensed Software; (2) use your Credentials to download unauthorized copies of or grant others access to the Licensed Software; (3) use the Licensed Software in a way that violates any third party's rights or any applicable law; (4) upload any files or software that may damage or provide unauthorized access to the data, software or hardware of another; or (5) interfere or allow interference with the proper functioning of the Licensed Software.

If the User is entitled to and elects to receive the IP Blocking Service, BANDURA will provide the Network Appliance necessary to implement the IP Blocking Service to the User. Title to and ownership of any Network Appliance provided to the User in connection with the IP Blocking Service will transfer to the User. BANDURA will determine the appropriate IP Blocking Service to deliver to each User, but under no circumstance shall the User be entitled to receive more than one (1) Network Appliance.

2. Proprietary Rights.

User acknowledges that ownership of and title in and to all intellectual property rights, including patent, trademark, service mark, copyright, and trade secret rights, in the Licensed Software and IP Blocking Service are and shall remain in BANDURA. User acquires only the right to use the Licensed Software and IP Blocking Service and does not acquire any ownership rights or title in or to the Licensed Software or IP Blocking Service. All modifications, updates, revisions and extensions to the Licensed Software, IP Blocking Service and documentation shall be considered part of the Licensed Software, IP Blocking Service and documentation for purposes of this Section 2. All data, information, content, graphics, text and other materials or applications prepared by User through the use of the Licensed Software, added by User or integrated by User with the Licensed Software, shall be the sole property of User. You understand that neither BANDURA nor AIG has any obligation to monitor the areas of the Licensed Software through which the User can supply information or material. However, BANDURA and AIG reserve the right at all times, in their sole discretion, to screen content submitted by Users and to edit, move, delete, and/or refuse to accept any content that in our judgment violates this Agreement or is otherwise unacceptable or inappropriate, whether for legal or any other reason.

3. Warranty and Indemnification.

BANDURA represents, warrants and covenants that it owns the Licensed Software, including all intellectual property rights therein, and that BANDURA has all rights necessary to license, in accordance with the terms of this Agreement, the Licensed Software, IP Blocking Service and appropriate Network Appliance, if any, to User.

3.1 Indemnification of AIG:

BANDURA shall indemnify and hold AIG harmless against claims, liabilities, and costs, including reasonable attorneys' fees, incurred in the defense of any claim brought against AIG by User in connection with the Licensed Software and/or IP Blocking Service, including, but not limited to, malfunction of a Network Appliance, User's inability to use the IP Blocking Service or Network Appliance, and/or any damage to User's network.

3.2 Indemnification of User:

BANDURA shall indemnify User against claims, liabilities, and costs, including reasonable attorneys' fees, reasonably incurred in the defense of any claim brought against User by third parties alleging that User's use of the Licensed Software, IP Blocking Service or Network Appliance infringes or misappropriates: (i) any patent; (ii) a copyright; or (iii) trade secret rights, provided that, User promptly notifies BANDURA in writing of any such claim and BANDURA is permitted to control fully the defense and any settlement of such claim as long as such settlement shall not include a financial obligation on User. User shall cooperate fully in the defense of such claim and may appear, at its own expense, through counsel reasonably acceptable to BANDURA.

3.3 Indemnification of BANDURA and AIG:

To the extent permissible by law, User shall indemnify BANDURA, AIG, and their licensors, against all third party claims, liabilities, and costs, including reasonable legal fees, reasonably incurred in the defense of any claim (other than for the infringement of intellectual property rights specified in Section 3.2 above), arising out of User's breach of its representations and warranties under this Agreement or User's unauthorized use of the Licensed Software, IP Blocking Service or Network Appliance, and other proprietary information licensed under this Agreement, provided that, BANDURA or AIG promptly notifies User in writing of such claim and that User is permitted to control fully the defense and any settlement of the claim.

4. Term and Termination.

This Agreement will become effective on the date User accept its terms and conditions or accesses the Licensed Software or IP Blocking Service and will remain in force until User or AIG terminates this Agreement. AIG will be deemed to have terminated this Agreement and the User's use of the Licensed Software and the IP Blocking Service immediately without notice if User fails to comply with the terms and conditions of this Agreement or User no longer has an in force cyber liability policy with AIG or its affiliates. Notwithstanding, AIG reserves the right to terminate User's use of the Licensed Software and IP Blocking Service, for any reason whatsoever, with ten (10) days written notice to User. Email notice to User is deemed to be sufficient notice under this Agreement.

UPON ANY TERMINATION OF THIS AGREEMENT, USER AGREES TO RETURN TO BANDURA ANY BANDURA CONTENT WITHIN FIFTEEN (15) DAYS OF THE EFFECTIVE DATE OF TERMINATION. User is not required to return any Network Appliance intentionally provided by BANDURA as part of the IP Blocking Service.

5. Waiver.

No waiver of any right under this Agreement shall be effective unless in writing, signed by a duly authorized representative of the Party to be bound. No waiver of any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right.

6. Severability.

If any provision in this Agreement is invalid or unenforceable, that provision shall be construed, limited, modified or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this License shall remain unaffected.

7. Governing Law.

Except as otherwise restricted by law, this License shall be governed by the internal laws of the State of New York (as permitted by Section 5-1401 of the New York General Obligations Law or any similar successor provision), without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of New York to the rights and duties of the Parties. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods Act shall not apply to this Agreement.

8. Export Control Notice.

Regardless of any disclosure made by User to BANDURA or AIG of an ultimate destination of the Licensed Software or IP Blocking Service (including any Network Appliance provided in connection therewith), User acknowledges that if the Licensed Software, IP Blocking Service or Network Appliance is being released or transferred to User in the United States that it is subject to the U.S. and European Union export control laws. User acknowledges its exclusive obligation to ensure that its exports from the United States are in compliance with the U.S. export control laws. User shall also be responsible for complying with all applicable governmental regulations of any foreign countries with respect to the use of the Licensed Software, IP Blocking Service or Network Appliance outside of the United States. User agrees that it will not submit the Licensed Software, IP Blocking Service or Network Appliance or any related content to any government agency for licensing consideration or other regulatory approval without the prior written consent of BANDURA and AIG. Customer shall defend, indemnify, and hold BANDURA and AIG harmless from and against any and all claims, judgments, awards, and costs (including reasonable legal fees) arising out of User's noncompliance with applicable U.S. or foreign law with respect to the use or transfer of the Licensed Software, IP Blocking Service or Network Appliance outside the United States by User and its affiliates.

The Licensed Software, IP Blocking Service and Network Appliance provide services and use software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. The User acknowledges and agrees that the Licensed Software, IP Blocking Service and Network Appliance shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to Afghanistan, Burma, Cuba, Iraq, Iran, Libya, Sudan, or any other countries to which the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using this Licensed Software and IP Blocking Service, User represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. User agrees to comply strictly with all U.S. export laws.

9. Warranty Disclaimer.

EXCEPT AS OTHERWISE RESTRICTED BY LAW, BANDURA AND AIG MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE LICENSED SOFTWARE, IP BLOCKING SERVICE OR ANY AND ALL CONTENT. BANDURA AND AIG DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE LICENSED SOFTWARE OR IP BLOCKING SERVICE WILL BE COMPLETELY SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE LICENSED SOFTWARE OR IP BLOCKING SERVICE WILL MEET USER'S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY USER THROUGH THE LICENSED SOFTWARE OR IP BLOCKING SERVICE WILL MEET USER'S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, (F) THE LICENSED SOFTWARE OR IP BLOCKING SERVICE OR THE SERVER(S) THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (G) THE SECURITY SERVICES ARE SUITABLE FOR ALL NETWORKS.

THE LICENSED SOFTWARE, IP BLOCKING SERVICE AND ALL CONTENT IS PROVIDED TO USER STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY BANDURA AND AIG.

10. Internet Delays.

User acknowledges that access to the Licensed Software and IP Blocking Service may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. BANDURA and AIG are not responsible for any delays, delivery failures, or other damage resulting from such problems.

11. Limitation of Liability.

EXCEPT AS OTHERWISE RESTRICTED BY LAW OR AS STATED HEREIN, BANDURA AND AIG SHALL NOT BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES (IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE), INCLUDING BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS LICENSED SOFTWARE OR IP BLOCKING SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE LICENSED SOFTWARE OR IP BLOCKING SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE LICENSED SOFTWARE OR IP BLOCKING SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT AND/OR FITNESS FOR A PARTICULAR PURPOSE) EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.

IN FURTHERACNCE, AND NOT IN LIMITATION OF THE FOREGOING, BANDURA AND AIG ASSUME NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY AS A RESULT OF YOUR ACCESS TO, USE OF, OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO, OR AUDIO ARISING OUT OF OR RELATING TO THE LICENSED SOFTWARE OR IP BLOCKING SERVICE.

12. Entire Agreement.

This Agreement sets forth the entire understanding and license between User, BANDURA and AIG and may be amended only in writing signed by all Parties. No other person is authorized to modify this Agreement or to make any warranty, representation or promise, which is different than, or in addition to, the warranty, representations or promises herein.

13. Bandura PoliWall NETWORK APPLIANCE PURCHASE AND END USER LICENSE AGREEMENT

IMPORTANT: PLEASE READ THIS NETWORK APPLIANCE PURCHASE AND END USER LICENSE AGREEMENT (THE “AGREEMENT”) CAREFULLY. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND THE BUSINESS ENTITY THAT YOU REPRESENT (COLLECTIVELY, “CUSTOMER”) AND BANDURA, LLC, A LIMITED LIABILITY COMPANY HAVING OFFICES AT 28 HAWK RIDGE CIRCLE, #107, LAKE ST. LOUIS, MO 63367 (“BANDURA”).

BY CLICKING ON THE “AGREE” BUTTON BELOW AND PRESSING THE ENTER KEY, OR OTHERWISE USING THE EQUIPMENT AND THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE LEGALLY BOUND BY THEM

THIS AGREEMENT GOVERNS ALL USE BY THE CUSTOMER OF THE NETWORK APPLIANCE (DEFINED BELOW) AND THE PURCHASE OF THE BANDURA SECURITY EQUIPMENT (THE “EQUIPMENT”) INCLUDING THE LICENSING OF ALL SOFTWARE EMBEDDED IN THE EQUIPMENT AND ALL SOFTWARE PROVIDED BY BANDURA.

USE OF THE EQUIPMENT AND/OR SOFTWARE CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN BANDURA IS UNWILLING TO LICENSE THE SOFTWARE TO IT AND (A) CUSTOMER MAY NOT USE THE SOFTWARE OR THE EQUIPMENT, AND (B) CUSTOMER MAY RETURN THE EQUIPMENT FOR A FULL REFUND. CUSTOMER’S RIGHT TO RETURN AND REFUND EXPIRES 30 DAYS AFTER PURCHASE FROM BANDURA OR AN AUTHORIZED BANDURA RESELLER, AND APPLIES ONLY IF CUSTOMER IS THE ORIGINAL END USER PURCHASER.

As used in this Agreement, “Network Appliance” means the combination of Bandura’s network security products, the Bandura Software and any Open Source Program. “Bandura Software” means any Bandura proprietary network security software products provided by Bandura, any third party proprietary software, and any patches, updates, improvements, additions and other modifications or revised versions that may be provided by Bandura or its licensors from time to time, excluding any and all Open Source Programs. “Open Source Program” means the open source code software programs that are provided to Customer for use with the Bandura Software. “Software” means collectively the Bandura Software and the Open Source Program. “Documentation” means Bandura’s release notes or other similar instructions in hard copy or machine readable form supplied by Bandura to Customer that describes the functionality of the Network Appliance and/or the Software purchased or licensed hereunder.

  1. Title. Subject to the terms and conditions of this Agreement, title, except to the extent the Equipment contains or consists of intellectual property rights of Bandura or other third parties, and risk of loss to the Equipment purchased is transferred to Customer when the Equipment is delivered to Bandura’s designated carrier for shipment. Unless otherwise expressly stated herein, this Agreement does not transfer to Customer any title or any ownership right or interest in any Network Appliance or any Software or in any other intellectual property rights of Bandura or in any Bandura Software. Customer acknowledges that the Software is owned by Bandura and its licensors, and that the Software and the Network Appliance contains, embodies and is based upon patented or patentable inventions, trade secrets, copyrights and other intellectual property rights owned by Bandura and its licensors.
  2. License. Conditioned upon compliance with the terms and conditions of this Agreement Bandura grants to Customer a nonexclusive, nontransferable, limited license to use the Software that is installed on the accompanying Network Security Appliance during the license term paid for by the Customer and solely for Customer’s internal operations and internal security purposes, and to use Bandura’s accompanying Documentation in connection therewith. “Documentation” means written information (whether contained in user or technical manuals, training materials, specifications or otherwise) specifically pertaining to the Software and made available by Bandura for use with the Software or the Equipment in any manner (including on CD-ROM, or on-line).
  3. Scope of Use. The Software pre-installed on the Equipment may only be used by Customer with such Equipment for which the Software is provided and registered for use. To the extent any Software is separately made available to Customer, Customer’s use of the Software may not exceed the applicable use restrictions associated with the license fees paid or payable by Customer under this Agreement. If any Software is provided on separate media (e.g., a CD-ROM), Customer may make a reasonable number of copies solely for internal backup purposes. The scope of use of any Open Source License shall be governed by the applicable open source license agreement
  4. Open Source Terms. Customer acknowledges that each Open Source Program is distributed under the Open Source Program license applicable to such Open Source Program, and only such license, and this Agreement in no ways supplements or detracts from any term or conditions of such open source license agreement (the “Open Source License”). Notwithstanding anything to the contrary in this Agreement, Customer agree and acknowledge that the rights attached to any Open Source Programs provided hereunder are separate from and do not depend on the Open Source Programs being part of, or used in connection with, the Software or the Network Appliance.
  5. General Limitations. This is a license, not a transfer of title, to the Software and Documentation. BANDURA retains ownership of all copies of the Software and Documentation. Customer acknowledges that the Software and Documentation contain trade secrets of BANDURA, its suppliers or licensors, including but not limited to the specific internal design and structure of individual programs and associated interface information. Accordingly, except as otherwise expressly provided in this Agreement, Customer shall have no right, and Customer specifically agrees. Except to the extent allowed under the applicable Open Source License, Customer shall not directly or indirectly: (i) sell, lease, redistribute or transfer any of the Software; (ii) modify, translate, reverse engineer (except to the limited extent permitted by law), decompile, disassemble, create derivative works based on, sublicense, or distribute any of the Software; (iii) rent or lease any rights in any of the Software in any form to any person; (iv) use any Software for the benefit of any third parties (e.g., in an hosted, ASP, outsourcing or service bureau relationship) or in any way other than in its intended manner; (v) remove, alter or obscure any proprietary or copyright notice, labels, or marks on the hardware components of the Network Appliance or within the Software; or (vi) disable or circumvent any access control or related security measure, process or procedure established with respect to the Network Appliance or any Software or any other part thereof. Customer is responsible for all use of the Network Appliance and any downloading, installing and using the Software and for compliance with this Agreement; any breach by Customer or any user shall be deemed to have been made by Customer.
  6. Confidentiality. As used herein, “Confidential Information” means any non-public technical or business information of Bandura (or its licensors), including without limitation, any information, relating to Bandura’s techniques, algorithms, software, know-how, current and future products and services, research, engineering, designs, financial information, procurement requirements, manufacturing, customer lists, business forecasts, marketing plans and information, the terms and conditions of this Agreement, and any other information of Bandura (or its licensors) that is disclosed to Customer. Customer will take all reasonable measures to maintain the confidentiality of Bandura’s Confidential Information, but in no event less than the measures Customer uses to protect its own confidential information. Customer will limit the disclosure of Bandura’s Confidential Information to its employees with a bona fide need to access such Confidential Information in order to exercise its rights and obligations under this Agreement; provided that all such employees are bound by a written non-disclosure agreement that contains restrictions at least as protective as those set forth herein. Customer agrees that Bandura will suffer irreparable harm in the event that Customer breach any obligations under this Section 7 and that monetary damages will be inadequate to compensate Bandura for such breach. In the event of a breach or threatened breach of any of the provisions of this Section 7, Bandura, in addition to and not in limitation of any other rights, remedies or damages available to it at law or in equity, shall be entitled to a temporary restraining order, preliminary injunction and/or permanent injunction in order to prevent or to restrain any such breach.
  7. Software, Upgrades and Additional Copies.For purposes of this Agreement, “Software” shall include any upgrades, updates, bug fixes or modified versions thereto (collectively, “Upgrades”) or backup copies of the Software licensed or provided to Customer by Bandura or an authorized Bandura reseller.


    7.1 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT: (A) CUSTOMER HAS NO LICENSE OR RIGHT TO USE ANY ADDITIONAL COPIES OR UPGRADES UNLESS CUSTOMER, AT THE TIME OF ACQUIRING SUCH COPY OR UPGRADE, ALREADY HOLDS A VALID LICENSE TO THE ORIGINAL SOFTWARE AND HAS PAID ANY AND ALL APPLICABLE FEE FOR THE UPGRADE OR ADDITIONAL COPIES; (B) USE OF UPGRADES IS LIMITED TO THE EQUIPMENT FOR WHICH CUSTOMER IS THE ORIGINAL END USER PURCHASER OR WHO OTHERWISE HOLDS A VALID LICENSE TO USE THE SOFTWARE WHICH IS BEING UPGRADED; AND (C) THE MAKING AND USE OF ADDITIONAL COPIES IS LIMITED TO NECESSARY BACKUP PURPOSES ONLY.
  8. Proprietary Notices. Customer agrees to maintain and reproduce all copyright and other proprietary notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software. Except as expressly authorized in this Agreement, Customer shall not make any copies or duplicates of any Software without the prior written permission of Bandura.
  9. Term and Termination. This Agreement and the license granted herein shall remain effective until terminated. Customer may terminate this Agreement and the license at any time by ceasing to use the equipment, and destroying any and all copies of the Software, Upgrades and Documentation. Customer’s rights under this Agreement will terminate immediately without notice from Bandura if Customer fails to comply with any provision of this Agreement. Upon termination, Customer shall cease use of the Network Appliance, and destroy any and all copies of the Software, Upgrades and Documentation in its possession or control.


    9.1 Survival. All confidentiality and indemnity obligations of Customer, all limitations of liability, all disclaimers and all restrictions of warranty contained in this Agreement shall survive termination of this Agreement.
  10. Export Restrictions. The Equipment, Software and/or Documentation are subject to the export control laws and regulations of the United States, including, but not limited to, the U.S. Export Administration Act of 1979, as amended, and any successor U.S. legislation, and the Export Administration Regulations (“EAR”) administered by the U.S. Bureau of Industry and Security (“BIS”), in particular because the Equipment, Software and/or Documentation incorporate cryptographic functionality. Accordingly, Customer shall not export, reexport, transfer, or otherwise distribute or disseminate the Equipment, Software and/or Documentation without first obtaining any and all necessary licenses or approvals from BIS, including the issuance either to Bandura or Customer of a Commodity Classification and Automated Tracking System (CCATS) determination from BIS in accordance Section 740.17 or Section 742.15 of the EAR, and any other responsible U.S. Government agency. In particular, except as specifically authorized, Customer shall not export, reexport, transfer, or otherwise distribute or disseminate the Product (i) in or to any country then under U.S. embargo, currently Cuba, Iran, Sudan, Syria, and North Korea; (ii) to any entity or individual on the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons, or on the Entity List, Denied Persons List, or Unverified List, each if which is maintained by BIS; or (iii) for any end use prohibited pursuant to Part 744 of the EAR. Furthermore, Customer agrees not to export, reexport, transfer, or otherwise distribute or disseminate the product to any end user in a country other than the countries listed in Supplement No. 3 to Part 740. Customer will defend, indemnify, and hold BANDURA harmless from and against all fines, penalties, liabilities, damages, costs, and expenses incurred by BANDURA as a result of any violation of the U.S. export control laws and regulations.
  11. U.S. Government End User Purchasers. The Software and the Documentation qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Software License Agreement may be incorporated, Customer may provide to Government end user or, if this Agreement is direct, Government end user will acquire, the Software and Documentation with only those rights set forth in this Software License Agreement. Use of either the Software or Documentation or both constitutes agreement by the Government that the Software and Documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein.
  12. Limited Warranty and Disclaimer.


    12.1 Equipment. Bandura warrants that for a period of twenty-four (24) months from shipment (the “Equipment Warranty Period”) the unmodified hardware portions of the Equipment will, under normal use, be free of substantial defects in materials and workmanshipwenty-four (24, provided, however, that this warranty does not cover any Equipment component failures caused by: (i) accident; unusual physical, electrical or electromagnetic stress; neglect; misuse; fluctuations in electrical power beyond the applicable specifications; failure of air conditioning or humidity control; or (ii) installation, alteration or repair of the products by anyone other than Bandura or other persons expressly authorized by Bandura.


    (a) Bandura provides an advance replacement service which provides for shipping replacement products directly to the Customer, using returned material authorization (“RMA”) procedures, during the Equipment Warranty Period. Customer shall contact Bandura for specifics on the advance replacement service and RMA procedures. Advance replacement units shipped to non-US locations are assessed a per-transaction fee. For any product returned to Bandura for repair as a result of defects arising during the Equipment Warranty Period, Bandura, at its option, will repair or replace the product within ten (10) business days of the receipt of the defective product. An RMA Number must be obtained from Bandura before any product can be returned.


    (b) Repaired units are warranted to be free of defects for ninety (90) calendar days from the date of the equipment’s return to Customer, or the remainder of the product’s original Equipment Warranty Period, whichever is longer.


    12.2 Bandura Software. Bandura warrants that, for a period of ninety (90) days from the date of initial shipment of the Network Appliance or, in the case of Bandura Software separately provided to Customer, the date the Bandura Software is made available to Customer for download or delivered on a fixed media (the “Software Warranty Period”), the unmodified Bandura Software will, under normal use, substantially perform the functions described in its Documentation.


    (a) Customer may obtain additional technical support by separately enrolling in Bandura’s maintenance and support plan (the “Support Plan) see http://www.bandurasystems.com/support) by paying Bandura (or its authorized reseller) the then-applicable annual maintenance and support fee. Once enrolled, the Bandura Software will be eligible for hot fixes and upgrades in accordance with that agreement. As with hardware failures, any software repairs that require the product to be returned to BANDURA will be undertaken using RMA procedures and a replacement unit will be shipped from the BANDURA advance replacement pool


    12.3 EXCEPT AS EXPRESSLY WARRANTED IN THIS SECTION 13 OF THIS AGREEMENT, THE NETWORK APPLIANCE, ANY SOFTWARE, AND ANY OTHER, DOCUMENTATION, MATERIALS AND/OR DATA PROVIDED BY BANDURA ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND BANDURA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, OR QUALITY, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. NO WARRANTY IS MADE BY BANDURA ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. BANDURA DOES NOT WARRANT THAT THE NETWORK APPLIANCE, THE SOFTWARE OR ANY OTHER INFORMATION, MATERIALS, DOCUMENTATION OR TECHNOLOGY PROVIDED UNDER THIS AGREEMENT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. CUSTOMER ACKNOWLEDGES THAT BANDURA’S OBLIGATIONS UNDER THIS AGREEMENT ARE FOR ITS BENEFIT ONLY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ALL OPEN SOURCE PROGRAMS ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. THE WARRANTY MADE BY BANDURA MAY BE VOIDED BY ABUSE OR MISUSE.
  13. EXCLUSIVE REMEDY. Bandura’s sole obligation and liability, and Customer’s sole and exclusive remedy under the warranties set forth in Section 13 shall be for Bandura to use commercially reasonable efforts to remedy the problem, or to replace the defective product, provided that Bandura is notified in writing of all warranty problems during the applicable warranty period.
  14. LIMITATION OF LIABILITY. IN NO EVENT WILL BANDURA’S AGGREGATE LIABILITY (INCLUDING, BUT NOT LIMITED TO, LIABILITY FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION AND OTHER CONTRACT OR TORT CLAIMS) ARISING FROM OR RELATED TO THIS AGREEMENT, OR THE USE OF THE NETWORK APPLIANCE OR THE SOFTWARE, EXCEED THE AMOUNT OF FEES CUSTOMER PAID TO BANDURA OR ITS RESELLER FOR THE NETWORK APPLIANCE OR SOFTWARE THAT GIVES RISE TO SUCH LIABILITY. UNLESS OTHERWISE EXPRESSLY STATED HEREUNDER, UNDER NO CIRCUMSTANCES SHALL BANDURA OR ANY OF ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY OF THE FOLLOWING: (I) THIRD PARTY CLAIMS; (II) LOSS OR DAMAGE TO ANY SYSTEMS, RECORDS OR DATA OR (III) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR COVER DAMAGES (INCLUDING LOST PROFITS, BUSINESS INTERRUPTION, OR LOST SAVINGS), IN EACH CASE EVEN IF BANDURA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR VERIFYING THE SECURITY, ACCURACY AND ADEQUACY OF ANY OUTPUT FROM THE NETWORK APPLIANCE OR THE SOFTWARE, AND FOR ANY RELIANCE THEREON. THE LIMITATIONS OF LIABILITY IN THE ABOVE PARAGRAPHS OF THIS SECTION 15 ARE EACH INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.


    ESSENTIAL BASIS. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different. Customer agrees that the limitations of liability and disclaimers set forth herein will apply regardless of whether Customer has accepted the Equipment, the Software or any other product or service delivered by BANDURA. Customer acknowledges and agrees that BANDURA has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.
  15. Installation and Configuration. Customer represent, warrant and covenant that Customer is solely responsible for the proper configuration and management of the Network Appliance on which the Software will be installed, as well as the installation of any separately provided Software. Customer further understands and hereby acknowledges that the failure to properly configure and manage a Network Appliance, and the failure to properly install any separately provided Software, may adversely affect the performance of the Network Appliance and the Software. Customer represents and warrants to adhere strictly to the recommended minimum requirements specified from time to time by Bandura in the Documentation. Bandura shall have no obligations under this Agreement to the extent the Network Appliance or any separately provided Software fails to substantially perform the functions described in the Documentation, in whole or in part, because (i) Customer fails to meet Bandura’s minimum requirements, (ii) Customer’s separate hardware fails to perform, (iii) Customer mis-configured a Network Appliance or (iv) the Software had been improperly installed. Customer further agrees to indemnify and hold harmless Bandura, its officers, directors, employees or agent against any claims, losses, damages, liabilities or expenses arising from the failure of the Network Appliance or any Software to perform as warranted where such failure to perform is attributable, in whole or in part, to (i) Customer’s failure to meets Bandura’s minimum requirements, (ii) the failure of Customer’s hardware to perform, (iii) the mis-configuration of the Network Appliance or (iv) the improper installation of the Software.
  16. Compliance with Laws. Customer shall be responsible for, and agree to comply with, all applicable laws, statutes, ordinances, regulations and other types of government authority (including without limitation the laws and regulations governing unfair competition, anti-discrimination, false advertising, privacy and data protection, and publicity) (“Laws”). Customer agrees that Bandura or its designee shall have the right to periodically conduct on-site audits of its use of the Network Appliance or any Software. These audits will be conducted during regular business hours, and Bandura will make reasonable efforts to minimize interference with Customer’s regular business activities. Alternatively, Bandura may request that Customer complete a self-audit questionnaire in a form provided by Bandura. If an audit or such questionnaire reveals unlicensed use of the Bandura, Customer agrees to promptly order and pay for sufficient licenses to permit all usage disclosed.
  17. 17 Miscellaneous.


    17.1 Governing Law; Venue. The Agreement shall be governed by and construed in accordance with the laws of the State of Missouri, without reference to or application of choice of law rules or principles. Any controversy or claim arising under or related to this Agreement shall be settled by arbitration in St. Louis, Missouri, United States of America in accordance with the arbitration rules of the American Arbitration Association before a single arbitrator and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Bandura and Customer shall each select an arbitrator, and those two selected arbitrators will select the single arbitrator to hear the controversy or claim.


    17.2 Severability. If any provision of this Agreement is held to be illegal or unenforceable for any reason, then such provision shall be deemed to be restated so as to be enforceable to the maximum extent permissible under law, and the remainder of this Agreement shall remain in full force and effect.


    17.3 Complete Agreement. Except as expressly provided herein, this Agreement constitutes the entire agreement between the parties with respect to the license of the Software and the Documentation and supersedes any conflicting or additional terms contained in any purchase order or elsewhere, all of which terms are excluded.


    17.4 Force Majeure. Neither Party shall be liable for any delay or failure due to a force majeure event and other causes beyond its reasonable control. This provision shall not apply to Customer’s payment obligations.


    17.5 Notices. Any notices under this Agreement to Bandura will be personally delivered or sent by certified or registered mail, return receipt requested, or by nationally recognized overnight express courier, to the address specified herein or such other address as Bandura may specify in writing. Such notices will be effective upon receipt, which may be shown by confirmation of delivery. All notices to Bandura shall be sent to the attention of General Counsel (unless otherwise specified by Bandura).


    Assignment. Customer may not assign or otherwise transfer this Agreement without Bandura’s prior written consent. Notwithstanding the foregoing, either party may assign this Agreement without the consent of the other party if a majority of its outstanding voting capital stock is sold to a third party, or if it sells all or substantially all of its assets or if there is otherwise a change of control. This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and permitted assigns.


    17.7 Further Assurances. Customer agrees, at Bandura’s request and reasonable expense, to provide reasonable assistance and cooperation to Bandura and its designees, and to give testimony and execute documents and to take such further acts reasonably requested by Bandura to acquire, transfer, maintain, perfect, and enforce Bandura’s intellectual property rights as described in this Agreement.


    17.8 Third Party Claims. This Agreement is for the benefit of Bandura and Customer, and is not intended to confer upon any other person or entity, including without limitation, any current or future reseller, any rights or remedies hereunder. Customer agrees that Customer shall not make any claim, demand, or take any action, or threaten to do the same, against any third party, including without limitation, any of Bandura’s resellers or distributors, for any actual or alleged breach of this Agreement, and Customer agree to defend, indemnify and hold harmless Bandura and its officers, directors, employees, agents, resellers, distributors and subcontractors from any losses, damages, costs, liabilities or expenses attributable to Customer’s breach of this Section 24, including reasonable attorneys’ fees and costs.

EXHIBIT A: OPEN SOURCE SOFTWARE

The Software includes or may include some software programs that are licensed (or sublicensed) to the user under an open source license or other similar software licenses (“Free Software Licenses”) which, among other rights, permit the user to copy, modify and redistribute certain programs, or portions thereof, and have access to the source code. The GPL requires that for any software covered under the GPL, which is distributed to someone in an executable binary format that the source code also be made available to those users. For any such software, the source code shall be made available to Customer upon request. If any Free Software Licenses require that Bandura, LLC provide rights to use, copy or modify a software program that are broader than the rights granted in this Agreement, then such rights shall take precedence over the rights and restrictions herein.

Any open source software included as part of the Software or the Equipment is provided on an “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied.

FREE SOFTWARE ATTRIBUTIONS

  1. OpenSSL Project. This product includes software produced by The OpenSSL project. Copyright (c) 1998-2008 The OpenSSL Project. All rights reserved
  2. Apache. This product includes software Licensed under the Apache License, Version 2.0 (the “License”); Customer may not use this file except in compliance with the License. You may obtain a copy of the License at http: //www.apache.org/licenses/LICENSE-2.0


    Unless required by applicable law or agreed to in writing, software distributed under the License is distributed on an “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. See the License for the specific language governing permissions and limitations under the License.
  3. PHP. This product includes software that falls under the PHP license. The PHP License, version 3.01 Copyright (c) 1999 - 2010 The PHP Group. All rights reserved.
  4. Carnegie Mellon University/The Regents of the University of California. This product contains software Copyright 1989, 1991, 1992 by Carnegie Mellon University. This product contains software Derivative Work - 1996, 1998-2000
    Copyright 1996, 1998-2000.
    The Regents of the University of California.

    All Rights Reserved

    Permission to use, copy, modify and distribute this software and its documentation for any purpose and without fee is hereby granted, provided that the above copyright notice appears in all copies and that both that copyright notice and this permission notice appear in supporting documentation, and that the name of CMU and The Regents of the University of California not be used in advertising or publicity pertaining to distribution of the software without specific written permission.


    CMU AND THE REGENTS OF THE UNIVERSITY OF CALIFORNIA DISCLAIM ALL WARRANTIES WITH REGARD TO THIS SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS. IN NO EVENT SHALL CMU OR THE REGENTS OF THE UNIVERSITY OF CALIFORNIA BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM THE LOSS OF USE, DATA OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THIS SOFTWARE.
  5. Networks Associates Technology. This product contains software Copyright (c) 2001-2003, Networks Associates Technology, Inc All rights reserved.Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS ``AS IS’’ AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDERS OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
  6. Cambridge Broadband. This product contains software. Portions of this code are copyright (c) 2001-2003, Cambridge Broadband Ltd. All rights reserved. Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDER ``AS IS’’ AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDER BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
  7. Sun Microsystems. This product contains software Copyright © 2003 Sun Microsystems, Inc., 4150 Network Circle, Santa Clara, California 95054, U.S.A. All rights reserved. Use is subject to license terms below. This distribution may include materials developed by third parties. Sun, Sun Microsystems, the Sun logo, and Solaris are trademarks or registered trademarks of Sun Microsystems, Inc. in the U.S. and other countries. Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS ``AS IS’’ AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDERS OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
  8. Sparta. This product contains software Copyright (c) 2003-2009, Sparta, Inc. All rights reserved. Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS ``AS IS’’ AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDERS OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
  9. Cisco, Inc and Information Network Center of Beijing University of Posts and Telecommunications. This product contains software Copyright (c) 2004, Cisco, Inc and Information Network Center of Beijing University of Posts and Telecommunications. All rights reserved. Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS ``AS IS’’ AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDERS OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
  10. Fabasoft. This product contains software Copyright (c) Fabasoft R&D Software GmbH & Co KG, 2003 oss@fabasoft.com Author: Bernhard Penz Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDER ``AS IS’’ AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDER BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
  11. Apple. This product contains software Copyright (c) 2007 Apple Inc. All rights reserved. Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: THIS SOFTWARE IS PROVIDED BY APPLE AND ITS CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL APPLE OR ITS CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
  12. ScienceLogic. This product contains software Copyright (c) 2009, ScienceLogic, LLC. All rights reserved. Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS ``AS IS’’ AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDERS OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
  13. TechGuard SHIELD EULA, EXHIBIT B, User Agreement.

    Please read these Terms and Conditions ("Terms", "Terms and Conditions") carefully before using the IeL Courseware (the "Service") developed and supplied by Inspired eLearning LLC (“IeL” “us”, “we”, or “our’). Your access to and use of the Service is conditioned upon your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who wish to access or use the Service. By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms then you do not have permission to access the Service.

    By registering or using any of the Services you agree to be bound by these Terms. If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising to IeL that you have the authority to bind that organization to these Terms (in which event, "you" and "your" will refer to that organization) unless that organization has a separate paid contract in effect with us, in which event the terms of that contract will govern your use of the Service. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT USE THE SERVICES.

    CHANGES TO THESE TERMS

    We reserve the right to revise these Terms from time to time. We will date and post the most current version of these Terms on our website. Any changes will be effective upon posting the revised version of these Terms (or such later effective date as may be indicated at the top of the revised Terms). If in our sole discretion we deem a revision to these Terms to be material, we will notify you via the Service and/or by email to the email address associated with your account. Notice of other changes may be provided via the Partner Portal or Email. Therefore, we encourage you to check the date of these Terms whenever you visit the Site to see if these Terms have been updated.

    ACCESS TO THE SERVICE

    You may use the Service, on a non-exclusive basis, solely in strict compliance with these Terms and all applicable laws CONTENT STORED AND/OR PROCESSED IN THE UNITED STATES By using and accessing the Service, you understand and consent to the storage and/or processing of the Content and any other personal information in the United States. IeL reserves the right to store and process personal information outside of the United States, and will use commercially reasonable efforts to provide you with at least 30 days’ notice of any such changes in the processing location.

    SUSPENSION AND TERMINATION OF USE OF THE SERVICE

    We may suspend or terminate your access to or use of the Service for: (a) the actual or suspected violation of these Terms; (b) the use of the Services in a manner that may cause IeL to have legal liability or disrupt others' use of the Services; (c) the suspicion or detection of any malicious code, virus or other harmful code by you or in your account; (d) scheduled downtime and recurring downtime; or (g) unplanned technical problems and outages.

    You may request access to your Content, which we will make available for up to 30 days after the expiration or termination of your subscription fee. You must make such request with five (5) days following termination. Otherwise, any Content you have stored with the Service will not be retrievable, and we will have no obligation to maintain any data stored in your account.

    ACCEPTABLE USE

    You must not use the Service to harm others or the Service. For example, you must not use the Service to harm, threaten, or harass another person, organization, or IeL and/or to build a similar service or website. You must not: damage, disable, overburden, or impair the Service (or any network connected to the Service); resell or redistribute the Service or any part of it; use any unauthorized means to modify, reroute, or gain access to the Service or attempt to carry out these activities; or use any automated process or Service (such as a bot, a spider, or periodic caching of information stored by IeL) to access or use the Service. In addition, you promise that you will not and will not encourage or assist any third party to:

    1. modify, alter, tamper with, repair or otherwise create derivative works of any Service;
    2. reverse engineer, disassemble or decompile the software used to provide or access the Service, or attempt to discover or recreate the source code used to provide or access the Service;
    3. use the Service in any manner or for any purpose other than as expressly permitted by IeL in writing;
    4. sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted to you with respect to the Services to any third party;
    5. remove, obscure or alter any proprietary rights notice pertaining to the Service;
    6. access or use the Service in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas;
    7. use the Service to: (i) engage in any unlawful or fraudulent activity; (ii) store or transmit inappropriate Content, (iii) in a way that violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity or that may otherwise be unlawful or give rise to civil or criminal liability; (iv) store or transmit any Content that contains software viruses or other harmful or deleterious computer code, files or programs or otherwise violate the legal rights of a third party;
    8. access or attempt to access IeL's other accounts, computer systems or networks not covered by these Terms, through password mining or any other means; or
    9. share passwords or other access information or devices or otherwise authorize any third party to access or use the Service.

    UPDATES TO THE SERVICE

    IeL reserves the right, in its sole discretion, to make necessary unscheduled deployments of changes, updates or enhancements to the Service at any time. We may add or remove functionalities or features.

    IeL PROPRIETARY RIGHTS

    As between IeL and you, IeL or its licensors own and reserve all right, title and interest in and to the Service and all hardware, software and other items used to provide the Service, other than the rights explicitly granted to you to use the Service in accordance with this Terms. No title to or ownership of any proprietary rights related to the Service is transferred to you pursuant to these Terms. All rights not explicitly granted to you are reserved by IeL. In the event that you provide comments, suggestions and recommendations to IeL with respect to the Service (including, without limitation, with respect to modifications, enhancements, improvements and other changes to the Service) (collectively, "Feedback"), You hereby grant to IeL a world-wide, royalty free, irrevocable, perpetual license to use and otherwise incorporate any Feedback in connection with the Service.

    INDEMNIFICATION

    To the extent permitted by law, You will defend IeL against any cost, loss, damage, or other liability arising from any third party demand or claim that any Content provided by you, or your use of the Service, in breach of these Terms: (a) infringes a registered patent, registered trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of IeL's actions); or (b) violates applicable law or these Terms. IeL will reasonably notify you of any such claim or demand that is subject to your indemnification obligation.

    LIMITATION OF LIABILITY

    TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL IEL, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR (A): ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF IEL HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF IEL AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, RELATING TO THE SERVICES WILL BE LIMITED TO THE FEE PAID FOR THE SERVICE. THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY LAW.

    GOVERNING LAW; LOCATION FOR RESOLVING DISPUTES

    The laws of the State of Texas, U.S.A. govern the interpretation of these Terms and apply to claims for breach of these Terms, regardless of conflict of laws principles. The parties specifically exclude from application to these Terms the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. You and we irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts for Texas, USA, for all disputes arising out of or relating to these Terms. IeL may assign this contract to another entity at any time with or without notice to you.

    NOTICES

    We may send you, in electronic form, information about the Service, additional information, and information the law requires us to provide. We may provide required information to you by email at the address you specified when you signed up for the Service or by access to a website that we identify. Notices emailed to you will be deemed given and received when the email is sent. If you don't consent to receive notices electronically, you must stop using the Service. You may provide legal noticed to us via email to willem.boom@inspiredelearning.com, with a duplicate copy sent via registered mail, return receipt requested, to the following address: Inspired eLearning, LLC, Attn: Legal, 613 N.W. Loop 410 Suite 530 San Antonio TX 78216. Any such notice, in either case, must specifically reference that it is a notice given under these Terms.

    MISCELLANEOUS

    1. Severability; Entire Agreement. These Terms apply to the maximum extent permitted by relevant law. If a court holds that we cannot enforce a part of these Terms as written, you and we will replace those terms with similar terms to the extent enforceable under the relevant law, but the rest of these Terms will remain in effect. This is the entire contract between you and us regarding the Service. It supersedes any prior contract or oral or written statements regarding your use of the Service.
    2. Assignment and transfer. We may assign, transfer, or otherwise dispose our rights and obligations under this contract, in whole or in part, at any time without notice. You may not assign this contract or transfer any rights to use the Service.
    3. Independent Contractors; No third-party beneficiaries. IeL and you are not legal partners or agents; instead, our relationship is that of independent contractors. This contract is solely for your and our benefit. It is not for the benefit of any other person, except for permitted successors.
    4. Claims. Claims must be filed within one year. You must bring any claim related to these Terms or the Service within one year of the date you could first bring the claim, unless your local law requires a longer time to file claims. If it isn't filed in time, the claim is permanently barred.
    5. Waiver. The failure of either party to insist upon or enforce strict performance of any of the provisions of these Terms or to exercise any rights or remedies under these Terms will not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.

    INTELLECTUAL PROPERTY NOTICES

    All contents of the Services including but not limited to design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement are: Copyright © IeL, and/or the proprietary property of its suppliers, affiliates, or licensors. All Rights Reserved.

    IeL and the IeL logo are including without limitation, either trademarks, service marks or registered trademarks of IeL, Inc., and may not be copied, imitated, or used, in whole or in part, without IeL's prior written permission or that of our suppliers or licensors. Other product and company names may be trade or service marks of their respective owners. IeL may have patents, patent applications, trademarks, copyrights, or other intellectual property rights covering subject matter that is part of the Service. Any rights not expressly granted herein are reserved.

    This Agreement shall be governed by and construed under the laws of Delaware, without reference to conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the transactions contemplated by this Agreement. The Uniform Computer Information Transactions Act (“UCITA”) will not apply to this Agreement regardless of when and howsoever adopted, enacted and further amended under the governing state laws.