SOFTWARE DISTRIBUTION AGREEMENT

ADNAS-2011-001 DivineRune Software Distribution Agreement 2012-01-25 FINAL draft

 

 

ADNAS-2011-001 DivineRune Software Distribution Agreement 2012-01-25 FINAL draft

 

ADNAS-2011-001 DivineRune Software Distribution Agreement 2012-01-25 FINAL draft

 

ADNAS-2011-001 DivineRune Software Distribution Agreement 2012-01-25 FINAL draft

 

ADNAS-2011-001 DivineRune Software Distribution Agreement 2012-01-25 FINAL draft

 

ADNAS-2011-001 DivineRune Software Distribution Agreement 2012-01-25 FINAL draft

 

 

 

ADNAS-2011-001 DivineRune Software Distribution Agreement 2012-01-25 FINAL draft

 

 

 

(a)           DivineRune warrants to ADNAS that (i) DivineRune have full authority to execute and perform this Agreement; (ii) this Agreement has been duly executed and delivered by DivineRune and constitutes the legal, enforceable and binding obligation of DivineRune; and (iii) DivineRune’s execution and performance of this Agreement will not violate any law or breach any other agreement  and (iv) no approval, action or authorization by any governmental authority or agency is required for DivineRune’s execution and performance hereof or, if it is, such approval, action or authorization has been obtained and written evidence thereof has been provided to ADNAS.

 

(b)           DivineRune warrants to ADNAS that the Products will perform substantially in accordance with DivineRune’s Documentation.  ADNAS’s sole and exclusive remedy for any breach of the foregoing warranty shall be, at DivineRune’s option, repair or replacement of the non-conforming software or a refund of the license fees related to the defective software.  DivineRune further warrants that: (a) the Products shall comply with all U.S. laws, regulations, orders and decrees applicable to the healthcare industry; (b)  the Products does not contain or transmit any malicious code (except for any malicious code contained in user-uploaded attachments or otherwise originating from users); (c) DivineRune owns or otherwise has sufficient rights in the Products to grant to ADNAS the rights to use the Products granted herein; (d) the Products does not infringe the copyrights, trade secrets patents or trademark rights of any third party

 

(c)           OTHER THAN AS EXPRESSLY SET FORTH IN SECTION 12.1, DIVINERUNE DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS TO DISTRIBUTOR, END USERS, OR ANY OTHER PERSONS OR ENTITIES WITH RESPECT TO THE PRODUCTS, ANY COPIES THEREOF, ANY SERVICES PROVIDED HEREUNDER OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.

 

12.2.               Warranties of ADNAS.

 

(a)           ADNAS warrants to DivineRune that (i) ADNAS has full authority to execute and perform this Agreement; (ii) this Agreement has been duly executed and delivered by ADNAS and constitutes the legal, enforceable and binding obligation of ADNAS; (iii) ADNAS’s execution and performance of this Agreement will not violate any law or breach any other agreement; and (iv) no approval, action or authorization by any governmental authority or agency is required for ADNAS’s execution and performance hereof or, if it is, such approval, action or authorization has been obtained and written evidence thereof has been provided to DivineRune.

 

 

(b)           OTHER THAN AS EXPRESSLY SET FORTH IN SECTION 12.2, ADNAS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS TO DIVINERUNE DISTRIBUTOR, END USERS OR ANY OTHER PERSONS OR ENTITIES WITH RESPECT TO THE PRODUCTS, ANY COPIES THEREOF, ANY SERVICES PROVIDED HEREUNDER OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.

 

 

13.1.               DivineRune Indemnification. DivineRune shall, except as otherwise provided below, indemnify, defend and hold harmless ADNAS and its officers, directors and agents against any damages, costs, and fees resulting from any third party claims ADNAS that the Software or any of its elements or the use thereof in accordance with its related Documentation has, will or does violate or infringe any copyright, trade secret, or other valid proprietary right of any other person or entity. The right of indemnification as set forth herein will be subject to all of the following, all of which shall be DivineRune’s sole expense: (i) ADNAS providing DivineRune with prompt written notice of the initial claim and filing of the lawsuit relating thereto; (ii) ADNAS permitting DivineRune to select legal counsel and to defend, compromise, or settle the lawsuit in the sole discretion of DivineRune; (iii) ADNAS providing DivineRune with all available information, assistance, authority, and cooperation to enable DivineRune to defend, compromise, or settle the lawsuit as provided herein; and (iv) if the use of the Software becomes, or in DivineRune’s opinion is likely to become, the subject of a claim of infringement, ADNAS permitting DivineRune, at DivineRune’s option and expense, either to procure the right for ADNAS to continue to use the Software or to replace or modify the Software so that it becomes non-infringing. DivineRune will have no liability for any infringement or misappropriation of any copyright, trade secrets, or other proprietary rights resulting from modification of the Software performed other than by DivineRune, from use other than as specified under this Agreement, and approved End User Agreement, and the related Documentation, or from the use of the Software with products not specifically approved in writing or whose use is reasonably foreseeable by DivineRune for use with the Software.

 

13.2.               ADNAS Indemnification. In addition to any other ADNAS obligations of indemnity provided in this Agreement, ADNAS agrees to indemnify, defend and hold harmless DivineRune, its affiliates, and their directors, officers, shareholders, employees and agents from and against any liabilities, losses, damages, causes of action or injuries, together with costs and expenses, including reasonable attorneys’ fees, claim by unaffiliated third parties arising out of or resulting from:

 

(a)           Any failure on the part of ADNAS to pay any taxes, duties or assessments ADNAS is obligated to pay hereunder or other amounts ADNAS is obligated to pay as set forth in Section 5; or,

 

(b)           The infringement or claim thereof of any patent, copyright, trademark, service mark, trade name, trade secret, proprietary and confidential information right, or any other property right of a third party arising from the use by ADNAS of any symbol, insignia, name or identifying characteristic identifying the Products other than a Mark.

 

The right of indemnification as set forth herein will be subject to all of the following: (i) DivineRune providing ADNAS with prompt written notice of the initial claim and filing of the lawsuit relating thereto; (ii) DivineRune permitting ADNAS to select legal counsel and to defend, compromise, or settle the lawsuit in the sole discretion of ADNAS; and (iii) DivineRune providing ADNAS with all available information, assistance, authority, and cooperation to enable ADNAS to defend, compromise, or settle the lawsuit as provided herein.

 

 

13.3 Notice. DivineRune will give ADNAS prompt written notice of any threat, warning or notice of any such claim or action. DivineRune will have the right to conduct the defense of any such claim or action and, consistent with ADNAS’ rights hereunder, all negotiations for its settlement; provided, however, ADNAS may participate in such defense or negotiations to protect its interests, at its expense using counsel of its choice, and DivineRune will provide reasonable assistance to ADNAS and its counsel.

 

 

14.1.               Term. Unless earlier terminated as provided in this Section 15, this Agreement shall be effective as of the Effective Date and shall remain in effect until the third (3rd) anniversary of the Effective Date (the “Initial Term”). This Agreement shall be automatically renewed for successive one-year periods (each such renewal term is referred to as a “Renewal Term”), subject to earlier termination as set forth in this Section 14, unless either party notifies the other on or before six (6) months before the beginning of any Renewal Term.

 

14.2.               Early Termination. Without prejudice to any other remedies, either party shall have the right at any time by giving notice to the other to terminate the Agreement forthwith in any of the following events:

 

(a)           if the other party commits a material breach of any of the terms or conditions of this Agreement and fails to cure such breach within ninety (90) days after delivery of notice thereof; or

 

(b)           at a party’s option, if the other party becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits an appointment of a receiver for its business or assets, becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or is liquidated, voluntarily or otherwise; or

 

(c)           at a party’s option, if the other party is acquired or sells all or a substantial part of its assets  and minimum annual sales are not met this agreement will revert to a non-exclusive license; or

 

(d)           if any substantial change takes place in the management, ownership or control of the other party resulting in the management, ownership or control of the other party by a competitor of the first party or by a company or other entity with a division or subsidiary that is a competitor of the first party and minimum annual sales are not met this agreement will revert to a non-exclusive license

 

14.3.               Termination of Rights to Distribute in Certain Countries. In addition to any other rights and remedies available under this Agreement, at law or in equity, DivineRune may terminate ADNAS’s rights under this Agreement with respect to the right to market, license and distribute the Products in any country upon thirty  (30) days’ advance written notice in the event the government of such country (i) enacts currency control laws or regulations which make it impossible to export the Fees due to DivineRune under this Agreement; (ii) nationalizes ADNAS; or (iii) commits acts which DivineRune deems to be unreasonable and injurious to the Software or Documentation or this Agreement.

 

 

14.4.               Obligations upon Termination. Upon expiration or termination of this Agreement for any reason, ADNAS shall immediately return to DivineRune all DivineRune property, including, but not limited to, the Master Copy, the Demonstration Copies and the Proprietary Information of DivineRune. Upon return of such materials, ADNAS shall provide DivineRune with a signed written statement certifying that it has returned all DivineRune property to DivineRune. Upon termination of this Agreement for any reason, all rights and licenses granted by DivineRune hereunder to ADNAS shall immediately cease, provided such termination shall not result in termination of End User Agreements extended to End Users. Upon termination or expiration of this Agreement for any reason, all invoices and any other monies due to DivineRune by ADNAS shall remain due and payable in accordance with the terms hereof.

 

14.5.               Survival of Terms. Upon termination or expiration of this Agreement, and in addition to any provisions that expressly provide to survive any termination of this Agreement, the provisions of this Agreement providing for payment of Fees to DivineRune, protection of DivineRune’s proprietary rights, warranties, the limitation of liability, compliance with laws, indemnities, arbitration and other provisions of this Agreement concerning the ongoing interests of DivineRune, including, but not limited to, Sections 2.3, 5, 7, 9, 10, 11, 12, 13, 14, 15, 16, and 17 shall continue and survive in full force and effect.

 

 

(a)           The parties agree that any dispute, claim or controversy relating in any way to this Agreement shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), with judgment upon the award rendered by the arbitrator to be entered in any court of competent jurisdiction. Notwithstanding the foregoing or the then-current specified Commercial Arbitration Rules, the following shall apply with respect to the arbitration proceeding: (i) the arbitration proceeding shall be conducted by one arbitrator selected by the parties, provided if the parties fail to make such designation within five days after receipt by the AAA of any demand for arbitration, the AAA shall make the appointment in its sole discretion; (ii) the existence, subject, evidence, proceedings, and ruling resulting from the arbitration proceedings shall be deemed confidential information, and shall not be disclosed by either party, their representatives, or the arbitrator (except: (a) to the professional advisers of DivineRune or ADNAS; (b) in connection with a public offering of securities by DivineRune or ADNAS; (c) as ordered by any court of competent jurisdiction; or (d) as required to comply with any applicable governmental statute or regulation); (iii) the arbitrator shall be required to prepare written findings of fact; and (iv) the arbitrator may grant any relief or remedy which the arbitrator deems just and equitable.

 

(b)           Each party to the arbitration is to pay an equal part of the deposit fixed by the AAA. Notwithstanding the determination of the arbitrator (i) all costs associated with the arbitration and imposed by the AAA or the arbitrator shall be borne equally by each party to the arbitration, and (ii) each party to the arbitration shall be responsible for its own attorneys’ fees and other professional fees incurred in connection with the arbitration. Determinations of such arbitrator will be final and binding upon the parties to the arbitration, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction, or application may be made to such court for a judicial acceptance of the award and an order of enforcement, as the case may be. The arbitrator shall apply the law of the State of New York without giving effect to its conflict of law rules. All proceedings before the arbitrator shall be conducted in the English language.

 

(a)           EXCEPT FOR (A) EACH PARTY’S INDEMNIFICATION, INCLUDING INFRINGEMENT OBLIGATIONS HEREUNDER, OR (B) ANY INTENTIONAL REFUSAL BY ANY PARTY TO PERFORM ITS MATERIAL OBLIGATIONS UNDER THIS AGREEMENT, OR (C) A CLAIM ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE TOTAL FEES PAID OR OWED TO  UNDER THIS AGREEMENT FOR THE PREVIOUS TWELVE MONTH PERIOD. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.

 

(b)           EXCEPT FOR (A) EACH PARTY’S INDEMNIFICATION, INCLUDING INFRINGEMENT OBLIGATIONS HEREUNDER, OR (B) ANY INTENTIONAL REFUSAL BY ANY PARTY TO PERFORM ITS MATERIAL OBLIGATIONS UNDER THIS AGREEMENT, OR (C) A CLAIM ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTYBE LIABLE TO THE OTHER PARTY FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) OR LOSS OF GOODWILL OR PROFIT IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF OR INABILITY TO USE THE PRODUCTS, ANY SERVICES PROVIDED HEREUNDER, OR IN CONNECTION WITH ANY CLAIM ARISING FROM THIS AGREEMENT, EVEN IF A PARTYHAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.

 

(c)           No action arising out of this Agreement, regardless of form, may be brought by either party or any other third party more than two years after the date the cause of action has occurred.

 

 

17.1.               Amendments. This Agreement and the Appendixes hereto represent the entire understanding between the parties hereto and supersede all other written or oral agreements heretofore made by or on behalf of DivineRune or ADNAS and may be changed only by agreements in writing signed by the authorized representatives of the parties.

 

17.2                 Insurance. DivineRune and its agents at their sole cost and expense shall maintain insurance as requested on a case by case basis by the end user using the Client Engagement Schedule attached as Appendix B.

 

17.3.               Applicable Law. This Agreement has been made, executed and delivered in the State of New York, U.S.A. in which state the offices of DivineRune are located. Accordingly, the parties invoke the laws of the State of New York regarding the protection of their rights and enforcement of their obligations hereunder and they mutually stipulate and agree that this Agreement is in all respects (including, but not limited to, all matters of interpretation, validity, performance and the consequences of breach) to be exclusively construed, governed and enforced in accordance with the internal laws (excluding all conflict of laws rules) of the State of New York and any applicable federal laws of the United States of America, as from time to time amended and in effect. Except as provided in Section 15 (related to Arbitration of disputes), ADNAS consents and submits to the jurisdiction and venue over any action, suit or other legal proceeding that may arise out of or in connection with this Agreement, by the United States District Court for the Southern District of New York and the state courts of the state of New York. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply in any respect to this Agreement or the parties hereto.

 

 

17.4.               Relationship of Parties. Nothing in this Agreement shall constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute ADNAS as an affiliate of DivineRune, for any purpose whatever, and neither party shall have authority or power to bind the other party, or its affiliates, or to contract in the name of or create a liability against the other party or its affiliates, in any way or for any purpose.

 

17.5.               Assignment. Neither this Agreement, nor the obligations of either party, may be transferred or assigned by either party without the prior written consent of the other party.

 

17.6.               Waiver. A waiver by either of the parties hereto of any breach by the other party of any of the terms, provisions or conditions of this Agreement or the acquiescence of either party hereto in any act (whether commission or omission) which but for such acquiescence would be a breach as aforesaid, shall not constitute a general waiver of such term, provision or condition of any subsequent act contrary thereto.

 

17.7.               Notice. All communications between the parties which are required or permitted to be in writing shall be sent by hand delivery, with receipt obtained, or by recognized courier, properly prepaid and sent to the addresses specified in the first paragraph of this Agreement. All such communications shall be deemed received by the other party upon the earlier of actual receipt or actual delivery to the address specified in the first paragraph of this Agreement. By written communication, either party may designate a different address for purposes hereof.

 

17.8.               Force Majeure. If the performance of this Agreement by either party, or of any obligation under this Agreement, other than the payment of Fees, is prevented, restricted or interfered with by reason of war, revolution, civil commotion, riot, fire, flood, disaster, acts of public enemies, blockade or embargo, strikes, any law, order, proclamation, regulation, ordinance, demand, or requirement having a legal effect of any government or any judicial authority or representative of any such government, or any other act whatsoever, whether similar or dissimilar to those referred to in this Section, which is beyond the reasonable control of the party affected, such party shall, upon giving prior written notice to the other party, be excused from such performance to the extent of such prevention, restriction, or interference, provided that the party so affected shall use its best efforts to avoid or remove such causes of nonperformance, and shall continue performance hereunder with the utmost dispatch whenever such causes are removed. Notwithstanding the foregoing, if such act or condition beyond reasonable control continues for a period of 180 days or more, the unaffected party may, on notice to the party affected, terminate this Agreement, and neither party shall have any further obligation to the other save for those provisions hereunder which, by their terms, survive the termination of this Agreement.

 

 

 

 

Appendix A                      Description of Software

Appendix B                      Client Engagement Schedule (Sample)

Appendix C                      Request For Quote

Appendix D                      DivineRune End User Agreement

Appendix E                      Training Services

Appendix F                      Safe Countries Form of End User Agreement

 

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives effective on the Effective Date.

 

Applied DNA Sciences Inc.		DivineRune Inc.
/s/ Kurt Jensen		/s/ Eugene Sayan
By:		By:
KURT JENSEN		Eugene Sayan
Title:		Title:
CFO		CEO, President
Date: 1/25/2012		Date: 1/25/2012

 

 

DivineRune Mobile & Cloud Platform

 

DivineRune Mobile & Cloud platform, meaning almost all necessary hardware, software and services are provided as a service, is a hosted turnkey solution for secure logistics, mobile commerce, and many other mobile business transactions. Downloadable DivineRune mobile applications all what are needed for Manufacturers, Wholesalers, Retail Stores and Consumers to interface with DivineRune platform.

 

For retailers and manufacturers, secure barcode (all known formats, including QR Code) tagging closes the gap between online and in-store shopping experiences, making it easier than ever for consumer to engage with a brand. Properly placed secure barcode tagging technology directly enhances supply chain by giving business, including consumers, an instant access to specific, relevant information they want in one simple step, increasing conversions.

 

A user-friendly downloaded DivineRune software application running on mobile devices protects and enhances “brand awareness”. Once DivineRune software is downloaded, business users and consumers merely position their mobile appliance, which can be a smartphone or DivineRune provided smartphone attachment for business users, in front of a secure barcode tag and are instantly rewarded with information (in the form of mobile content, a file to download, even an automatically generated tweet or SMS message) that engages them more deeply.

 

The advantages of secure barcode product tagging go even further by placing effective sales tools in the hands of associates, without necessitating investments in excessive training and expensive sales materials.  Information accessible through secure barcode product tagging ensures sales associates have instant answers, providing a higher level of customer service. Instead of wearing a blank expression when asked about specific product details, associates can instead access information via secure barcode tagging to efficiently serve the customer with confidence to close the sale.  Ability to capture and store the information on mobile device, share with others, and access to “Buy Now” or “Add to Shopping Cart” even after leaving the store. From a business standpoint, the fewer steps involved, the smaller the likelihood of losing opportunities to engage with consumers at their peak moments of receptivity. Plus, 2D Product Tagging often comes with less overhead than a traditional SMS campaign.

 

DivineRune products subject to this agreement includes;

 

●

DivineLogistics  A secure track & trace platform designed to address challenging problems associated in supply-chain logistics.

●

DivineAuthentication Stochastic, pattern based product authentication to address counterfeiting, product diversion, and other illegal activities in supply chain.

 

 

 

This Schedule (“Schedule”) is part of the Software Distribution Agreement between DivineRune (hereinafter “DivineRune”) and Applied DNA Sciences Inc (hereinafter “ADNAS”):

 

Payment Terms:		Net 30 days
Referenced Agreement:		The terms and conditions of the Transactional License Agreement referenced above, shall apply to this Schedule
Additional Terms:	1.	Term of this Schedule shall be ________ (__) years from Effective Date.
	2.	ADNAS and DivineRune agree that the Software is for use within _________________________________ and by its customers (collectively “Customer”).
	3.	ADNAS agrees to an Initial Activation fee of $_________.
	4.	The parties agree that the fees below include Basic Support services, revenues shall be adjusted as;

 

 

Date:

 

ADNAS’s Main Office Location:
ADNAS’s Location Registering This Request:
ADNAS’s Employee Registering This Request:
Company Name Of Prospective End User:
Address Of Prospective End User:
Type Of Business:
Contact’s Name At Prospective End User:
How You Learned About This Prospect:
Projected Monthly Revenue in US Dollars:
What Steps Of The Sale Have You Done As Of Today:

 

Cold Call?			Initial Presentation?
Proposal?			Verbal Commitment?
Demo?

 

Projected Contract Sign Date?

 

 

PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE INSTALLING THE DIVINERUNE SOFTWARE.  BY INSTALLING THE DIVINERUNE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE.  IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT INSTALL THE SOFTWARE AND (IF APPLICABLE) RETURN THIS SOFTWARE TO THE PLACE WHERE YOU OBTAINED IT.

 

1. General.  The software, test scripts, documentation and other materials accompanying this License, whether on disk, print or electronic documentation, in read only memory, or any other media, (collectively, the “DivineRune Software”) are licensed, not sold, to you by DivineRune Inc. (“DivineRune”).  The rights granted herein are limited to DivineRune’s and/or DivineRune’s licensors’ respective intellectual property rights in the DivineRune Software and do not include any other patents or intellectual property rights. You own the media on which the DivineRune Software is recorded but DivineRune and/or DivineRune’s licensor (s) retain ownership of their respective portions of the DivineRune Software itself.  The terms of this License will govern any software upgrades provided by DivineRune that replace and/or supplement the original DivineRune Software, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.

 

2. Permitted License Uses and Restrictions; No Redistribution.  Subject to the terms and conditions of this License:

(a)

You may install, access to over Internet and use the DivineRune Software internally within your business or organization. You may make only as many internal use copies of the DivineRune Software as reasonably necessary to use the DivineRune Software as permitted under this License and distribute such copies only to your employees whose job duties require them to use the Softheon Software for such testing purposes; provided that you reproduce on each copy of the Softheon Software or portion thereof, all copyright or other proprietary notices contained on the original.

(b)

You may also make one copy of the Softheon Software in machine-readable form for backup purposes only.  You may not rent, lease, loan, sublicense or otherwise redistribute the Softheon Software, in whole or in part.  Except as and only to the extent permitted by applicable law, you may not decompile, reverse engineer, disassemble, modify, or create derivative works of the Softheon Software or any part thereof.

 

3. Termination.  This License is effective until terminated.  Your rights under this License will terminate automatically without notice from Softheon:  (a) if you fail to comply with any term(s) of this License after receipt of written notice and thirty (30) day opportunity to cure; (b) upon Softheon’s release of an updated or revised version of the Softheon Software; or (c) if a new version of Softheon’s operating system software is released which is incompatible with this version of the Softheon Software. Upon the termination of this License, you shall immediately cease all use and copying of the Softheon Software, in whole or in part.   You may terminate this License at any time by providing at least ninety (90) prior written notice to Softheon.

4. Limited Warranty on Media (if applicable).  Softheon warrants the media on which the Softheon Software is recorded and delivered by Softheon (if any) to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of original retail purchase.  Your exclusive remedy under this Section shall be, at Softheon’s option, a refund of the purchase price of the product containing the Softheon Software or replacement of the Softheon Software, which is returned to Softheon or a Softheon authorized representative with a copy of the receipt.  THIS LIMITED WARRANTY AND ANY IMPLIED WARRANTIES ON THE MEDIA INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, AND OF FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF ORIGINAL RETAIL PURCHASE.  SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.  THE LIMITED WARRANTY SET FORTH HEREIN IS THE ONLY WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER WARRANTIES (IF ANY) CREATED BY ANY DOCUMENTATION, PACKAGING OR OTHERWISE.  THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY BY JURISDICTION.

 

5. Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTHEON SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. EXCEPT FOR THE LIMITED WARRANTY ON MEDIA SET FORTH ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND WITHOUT WARRANTY OF ANY KIND, AND SOFTHEON AND SOFTHEON’S LICENSORS (COLLECTIVELY REFERRED TO AS “SOFTHEON” FOR THE PURPOSES OF SECTIONS 5 AND 6) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE Softheon SOFTWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT,.  SOFTHEON DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTHEON SOFTWARE, THAT THE FUNCTIONS CONTAINED IN THE SOFTHEON SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTHEON SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTHEON SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SOFTHEON OR AN SOFTHEON AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.  .  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.

 

6. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL Softheon BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTHEON SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF Softheon HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.  In no event shall Softheon’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00).  The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.

7. Export Law Assurances.  You may not use or otherwise export or re-export the Softheon Software except as authorized by United States law and the laws of the jurisdiction in which the Softheon Software was obtained.  In particular, but without limitation, the Softheon Software may not be exported or re-exported (a) into (or to a national or resident of) any U.S. embargoed countries (currently Cuba, Iran, Libya, North Korea, Sudan, and Syria) or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.  By using the Softheon Software, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.

 

8. Government End Users. The Softheon Software and related documentation are “Commercial Items”, 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 or 48 C.F.R. § ###-###-####, as applicable.  Consistent with 48 C.F.R. §12.212 or 48 C.F.R. § ###-###-####-1through ###-###-####-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.  Unpublished-rights reserved under the copyright laws of the United States.

 

9. Controlling Law and Severability. This License will be governed by and construed in accordance with the laws of the State of New York, as applied to agreements entered into and to be performed entirely within New York. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.

 

10. Complete Agreement.  This License constitutes the entire agreement between the parties with respect to the use of the Softheon Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter.  No amendment to or modification of this License will be binding unless in writing and signed by Softheon. The parties hereto confirm that they have requested that this License and all related documents be drafted in English.

 

2 Days of training to include:

 

1.

Training On The Demonstration Of DivineRune Software

 

2.

How To Quality and Find Prospects

 

3.

How To Do A Written Proposal

 

4.

Written Marketing Support Material Such As Brochures, Presentation Tools and References

 

3 Days of training to Include:

 

1.

Evaluating Your Customer’s Requirements (Hardware and Software) And How To Present Them To The Customer: Supply Chain Management, Secure Logistic, Mobile Commerce, etc.)

 

2.

How To Physically Install, Configure and Test DivineRune Software

 

3.

How To Do System Administrator And End User Hands-On Training Of DivineRune Software

 

Australia

 

Canada

 

Countries of Scandinavia

 

Countries of the European Community

 

Liechtenstein

 

Mexico

 

New Zealand

 

Switzerland

 

United States of America