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End User License Agreement for the Evolve Software™

PLEASE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE.
BY OPENING OR ACCESSING THE EVOLVE SOFTWARE, OR USING ANY EQUIPMENT THAT CONTAINS THIS SOFTWARE PRODUCT, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT. 

LICENSE GRANT: Trusted Data Solutions LLC, including its subsidiaries and affiliates (“TDS”)  grant to the End User End User Customer a nonexclusive and nontransferable license to use  Evolve™ software (“Software”) in object code form: (i) installed in a single location on a hard disk  or other storage device of up to the number of computers owned or leased by End User  Customer for which End User Customer has paid a license fee (“Permitted Number of  Computers” and/or “Data License Limit” and/or “Number of Items”, and/or “Number of Accounts”);  or (ii) provided the Software is configured for network use, installed on a single file server for use  on a single local area network for either (but not both) of the following purposes: (a) permanent  installation onto a hard disk or other storage device of up to the Permitted Number of Computers;  or (b) use of the Software over such network, provided the number of computers connected to the  server does not exceed the Permitted Number of Computers. End User Customer may only use  the programs contained in the Software (i) for which End User Customer has paid a license fee  and (ii) for which End User Customer has received a product license key (“PLK”). End User  Customer grants to TDS or its independent accountants the right to examine its books, records  and accounts during End User Customer’s normal business hours to verify compliance with the  above provisions. In the event such audit discloses that the any or all of the following has been  exceeded: Permitted Number of Computers, the Data License Limit, the Number of Items,  Number of Accounts, the End User Customer shall promptly pay to TDS the appropriate licensee  fee for the additional computers or users. At TDS ‘s option, TDS may terminate this license for  failure to pay the required license fee.  

End User Customer may make one (1) archival copy of the Software provided End User  Customer affixes to such copy all copyright, confidentiality, and proprietary notices that appear on  the original.  

EXCEPT AS EXPRESSLY AUTHORIZED ABOVE, END USER CUSTOMER SHALL NOT:  COPY, IN WHOLE OR IN PART, SOFTWARE OR DOCUMENTATION; MODIFY THE  SOFTWARE; REVERSE COMPILE OR REVERSE ASSEMBLE ALL OR ANY PORTION OF  THE SOFTWARE; OR RENT, LEASE, DISTRIBUTE, SELL, OR CREATE DERIVATIVE WORKS  OF THE SOFTWARE.  

End User Customer agrees that aspects of the licensed materials, including the specific design  and structure of individual programs, constitute trade secrets and/or copyrighted material of TDS.  End User Customer agrees not to disclose, provide, or otherwise make available such trade  secrets or copyrighted material in any form to any third party without the prior written consent of  TDS. End User Customer agrees to implement reasonable security measures to protect such  trade secrets and copyrighted material. Title to Software and documentation shall remain solely  with TDS.  

LIMITED WARRANTY: TDS warrants that for a period of ninety (90) days from the date of  shipment from TDS: (i) the media on which the Software is furnished will be free of defects in  materials and workmanship under normal use; and (ii) the Software substantially conforms to its  published specifications. Except for the foregoing, the Software is provided AS IS. This limited  warranty extends only to End User Customer as the original licensee. End User Customer’s  exclusive remedy and the entire liability of TDS and its suppliers under this limited warranty will  be, at TDS or its service center’s option, repair, replacement, or refund of the Software if reported  (or, upon request, returned) to the party supplying the Software to End User Customer. 

In no event does TDS warrant that the Software is error free or that End User Customer will be  able to operate the Software without problems or interruptions.  

This warranty does not apply if the software (a) has been altered, except by TDS, (b) has not  been installed, operated, repaired, or maintained in accordance with instructions supplied by  TDS, (c) has been subjected to abnormal physical or electrical stress, misuse, negligence, or  accident, or (d) is used in ultra-hazardous activities.  

DISCLAIMER. EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR IMPLIED  CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT  LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A  PARTICULAR PURPOSE, NONINFRINGEMENT OR ARISING FROM A COURSE OF  DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT  ALLOWED BY APPLICABLE LAW.  

IN NO EVENT WILL TDS OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE,  PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR  PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF  LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE EVEN IF  TDS OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  

In no event shall TDS or its suppliers’ liability to End User Customer, whether in contract, tort  (including negligence), or otherwise, exceed the price paid by End User Customer. The foregoing  limitations shall apply even if the above-stated warranty fails of its essential purpose.  

SOME STATES DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR  CONSEQUENTIAL OR INCIDENTAL DAMAGES.  

The above warranty DOES NOT apply to any beta software, any software made available for  testing or demonstration purposes, any temporary software modules or any software for which  TDS does not receive a license fee. All such software products are provided AS IS without any  warranty whatsoever.  

This License is effective until terminated. End User Customer may terminate this License at any  time by destroying all copies of Software including any documentation. This License will terminate  immediately without notice from TDS if End User Customer fails to comply with any provision of  this License. Upon termination, End User Customer must destroy all copies of Software.  

Software, including technical data, is subject to U.S. export control laws, including the U.S. Export  Administration Act and its associated regulations, and may be subject to export or import  regulations in other countries. End User Customer agrees to comply strictly with all such  regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export,  or import Software.  

This License shall be governed by and construed in accordance with the laws of the State of  California, United States of America, as if performed wholly within the state and without giving  effect to the principles of conflict of law. If any portion hereof is found to be void or unenforceable,  the remaining provisions of this License shall remain in full force and effect. This License  constitutes the entire License between the parties with respect to the use of the Software.  Restricted Rights – TDS ‘s software is provided to non-DOD agencies with RESTRICTED  RIGHTS and its supporting documentation is provided with LIMITED RIGHTS. Use, duplication,  or disclosure by the Government is subject to the restrictions as set forth in subparagraph “C” of  the Commercial Computer Software – Restricted Rights clause at FAR 52.227-19. In the event the  sale is to a DOD agency, the government’s rights in software, supporting documentation, and  technical data are governed by the restrictions in the Technical Data Commercial Items clause at  DFARS 252.227-7015 and DFARS 227.7202. Manufacturer is TDS, Inc., 15 W 26TH ST, FL 6, NEW YORK, NY, 10010-1027 (212) 279-7600.

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