This End User License Agreement (the “Agreement”) is between OS Group, LLC dba Covalent Technologies (“Covalent”) and any purchaser or user of the Covalent products that accepts the terms of this Agreement (“Customer” or “You”).

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING OR USING COVALENT PRODUCTS.  BY USING OR PURCHASING COVALENT PRODUCTS, YOU SIGNIFY YOUR ASSENT TO THIS AGREEMENT.  IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY.  IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU MUST NOT USE OR PURCHASE COVALENT PRODUCTS.

The Effective Date of this Agreement is the earlier of the date that Customer accepts this Agreement or the date that Customer uses the Covalent products.

Whereas Covalent and Customer desire to establish certain terms and conditions under which Customer will, from time to time, license software from Covalent;

Now, therefore, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Customer and Covalent agree as follows:

1. License Grant.

1.1 License. Subject to the terms and conditions of this Agreement (including Customer’s obligation to pay the License Fees as specified on the Sales Quote provided by Covalent), Covalent grants to Customer a limited, non-exclusive, non-transferable, royalty-bearing, worldwide license to download, install, execute and use Covalent’s software bundle that Customer has licensed from Covalent (the “Software”) (in machine-readable object code form only) on the Designtated CPU(s) or Servers (as specified on the Sales Quote) and its associated end-user documentation (the “Documentation”) solely for Customer’s internal business purposes and in accordance with the Documentation and any other limitations set forth in this Agreement. Customer is entitled to make copies of the Software for archival, backup, or disaster recovery purposes only, provided that Customer reproduces all copyright and proprietary rights notices included in the original copy of the Software.

1.2 Transfers; Audit Rights. Customer may transfer the Software from one Designated CPU or Server to another after initial installation of the Software if (a) at the time of such transfer, Customer removes all copies of the Software from the initial Designated CPU or Server; and (b) Customer provides written notification of the transfer to Covalent, in either hard copy or electronic form. Covalent will have the right to audit Customer to ensure Customer’s installation and use of the Software is in compliance with this Agreement.

1.3 Ownership. As between the parties, Customer acknowledges and agrees the Software, including its sequence, structure, organization, and source code constitute certain valuable intellectual property rights of Covalent and its suppliers. The Software is licensed and not sold to Customer. No title or ownership passes as a result of this Agreement or any act under this Agreement. Covalent owns all copies of the Software however made. All rights in and to the Software not expressly granted to Customer in this Agreement are reserved by Covalent and its suppliers. Nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license under any of Covalent’s existing or future patents (or the existing or future patents of its suppliers).

2. Restrictions on Use; Confidentiality. The Software and the structure, organization, and code thereof are the confidential and proprietary information of Covalent. Customer agrees to take adequate steps to protect the Software and all information disclosed pursuant to this Agreement from unauthorized disclosure or use. The source code for the Software remains a confidential trade secret of Covalent and/or its suppliers. Customer acknowledges and agrees that the Software and its sequence, structure, organization, and source code constitute valuable trade secrets of Covalent and its suppliers. Accordingly, Customer agrees not to: (a) use the Software except as expressly allowed under Section 1, as applicable; (b) separate the component programs of the Software for use on different computers; (c) modify, adapt, alter, publicly perform, publicly display, translate, or create derivative works from the Software; (d) merge the Software with other software; (e) sublicense, lease, rent, loan, distribute or otherwise transfer the Software to any third party; or (f) reverse engineer, de-compile, disassemble, or otherwise attempt to derive the source code for the Software.

3. Delivery, Installation, and Acceptance. Covalent will provide Customer with the access necessary to download the Software after Customer accepts the terms and conditions of this Agreement and pays all fees for the Software (“Delivery”). Customer will be responsible for installing the Software on its computers as permitted under this Agreement. Delivery will be by electronic means. Risk of loss passes to Customer upon Delivery. The Software will be deemed accepted by Customer upon Delivery by Covalent.

4. License Fees and Payment. Customer will pay all fees for the Software (the “License Fees”) as specified on the Sales Quote provided to Customer by Covalent. Customer acknowledges that by paying the License Fees or downloading the Software that Customer agrees to such terms and conditions. All payments must be made in U.S. dollars. The License Fees exclude all applicable sales, use, and other taxes and all applicable export and import fees, customs duties and similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Covalent’s net income), fees, duties, and charges, and any related penalties and interest, arising from the payment of the License Fees or the Delivery or license of the Software to Customer.

5. Software Maintenance and Support Services. Covalent will provide maintenance and support services for the Software pursuant to a separate agreement.

6. Warranties.

6.1 Warranty. For a period of thirty (30) days after Delivery (“Warranty Period”), Covalent warrants that the Software, and any media on which the Software is contained, when used as permitted under this Agreement and in accordance with the instructions in the Documentation, will operate substantially as described in the Documentation. Covalent does not warrant that Customer’s use of the Software will be error-free, virus-free or uninterrupted. Covalent will use commercially reasonable efforts to correct any reproducible error in the Software reported to Covalent by Customer during the Warranty Period. If Covalent determines that it is unable to correct the error, Covalent will refund to Customer all License Fees actually paid, in which case this Agreement and Customer’s right to use the Software will be terminated. Any Error Correction provided to Customer will not extend the original Warranty Period.

6.2 Disclaimer. COVALENT PROVIDES THE SOFTWARE TO CUSTOMER ON AN “AS IS” BASIS. THE EXPRESS WARRANTY IN SECTION 6.1 IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, RESULT, TITLE, AND NON-INFRINGEMENT. THERE IS NO WARRANTY THAT ANY SOFTWARE WILL BE ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION OR WILL FULFILL ANY OF CUSTOMER’S PARTICULAR PURPOSES OR NEEDS. THERE ARE NO WARRANTIES THAT THE INFORMATION PROVIDED HEREUNDER OR COVALENT’S EFFORTS WILL FULFILL ANY OF CUSTOMER’S PARTICULAR PURPOSES OR NEEDS. THE SOFTWARE IS PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, EFFORT AND RESULTS OBTAINED IS WITH CUSTOMER. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT AND THAT NO WARRANTIES ARE MADE BY ANY OF COVALENT’S SUPPLIERS OR DISTRIBUTORS. IF COVALENT CANNOT DISCLAIM SUCH WARRANTIES UNDER THE APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTIES WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

7. Limitation of Liability. IN NO EVENT WILL COVALENT BE LIABLE FOR (I) ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT UNDER ANY LEGAL THEORY, EVEN IF COVALENT HAS BEEN ADVISED OF, KNOWS OF, OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN OR DESTRUCTIVE PROPERTIES OF THE SOFTWARE. COVALENT’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SOFTWARE PROVIDED HEREUNDER, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF LICENSE FEES PAID BY CUSTOMER TO COVALENT ACCORDING TO THIS AGREEMENT. THE PARTIES AGREE AND ACKNOWLEDGE THAT THIS SECTION 7 REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT. THIS LIMITATION OF LIABILITY WILL APPLY NOTHWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY SET FORTH HEREIN.

8. Term and Termination. The term of this Agreement will begin on the Delivery date and will continue indefinitely unless terminated pursuant to this Section 8. Customer may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Covalent. This Agreement will terminate without notice if Customer breaches any provision in Sections 1.1 or 2 or if Customer fails to pay any portion of the License Fees when due. Upon termination of this Agreement for any reason, all licensed rights granted in this Agreement will immediately cease to exist, and Customer must promptly stop all use of the Software and erase all copies of the Software from Customer’s computers.

9. General. Notices. All notices, consents demands and approvals under this Agreement must be delivered in writing by courier, by fax, or by certified or registered mail (postage prepaid and return receipt requested) to the other party at the address set forth on the Sales Quote and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner.  Relationship of the Parties.  The parties hereto are independent contractors.  Neither party (nor any agent or employee of that party) is the representative of the other party for any purpose neither party has the power or authority as agent, employee or in any other capacity, and to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever.  Export Control.  Customer will comply with all applicable export and import control laws and regulations of the United States and the foreign jurisdiction in which the Software is used and, in particular, Customer will not export or re-export the Software without all required United States and foreign government licenses.  Customer acknowledges and understands that the Software contains encryption technology that may require an export license from the U.S. State Department and that export or re-export of Software to certain entities and certain countries is prohibited.  Customer will defend, indemnify, and hold harmless Covalent from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees.  Assignment.  Customer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including its licenses with respect to the Software) to any third party without Covalent’s prior written consent.  Any attempted assignment or transfer in violation of the foregoing will be void.  No Waivers.  All waivers must be in writing.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.  U.S. Government End Users.  The Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212.  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth therein.  Choice of Law.  This Agreement will be governed by the laws of the State of California in the United States of America, as such laws apply to contracts between California residents negotiated, executed and performed entirely within California.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.  Any action or proceeding arising from or relating to this Agreement must be brought exclusively in a federal court in the Northern District of California or in state court in Contra Costa County, California, and each party irrevocably submits to the exclusive personal jurisdiction and venue of any such court in any such action or proceeding.  This Agreement will be written and construed in the English language.  Survival.  Sections 1.3 (Ownership), 2 (Restrictions on Use; Confidentiality), 6.2 (Disclaimer), 7 (Limitation of Liability), 8 (Term and Termination) and 9 (General) will survive the expiration or termination of this Agreement.  Customer acknowledges and agrees that Section 8 will remain in full force and effect notwithstanding the failure of any essential purpose in Section 6.  Entire Agreement.  This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral.  This Agreement may be amended only by a written document signed by both parties.  The terms on any purchase order or similar document submitted by Customer to Covalent will have no effect.

© 2006 OS Group, LLC dba Covalent Technologies, All Rights Reserved.