This End User License Agreement and Service is entered into between TOMOS Software, LLC ("TOMOS") and LICENSEE (as defined below) for the use of the TOMOS software and its accompanying services ("TOMOS SERVICE"). The computer software including any third party software as incorporated therein only, and the accompanying documentation (the "SOFTWARE") is subject to copyright and other protections, and is owned by TOMOS. If you or your agent accesses, installs or uses the TOMOS SERVICE, you, on behalf of the entity identified on the invoice or purchase order for the TOMOS SERVICE submitted to, and accepted by, TOMOS (the "PURCHASE ORDER"), thereby accept the terms and conditions of this Agreement and become the "LICENSEE". You hereby represent and warrant that you are authorized to bind to this Agreement the entity identified in the PURCHASE ORDER. If you do not agree to these terms and conditions, you are not authorized to use the SOFTWARE, and you must exit immediately.

1. LICENSE

1.1 License Grant. Subject to the terms and conditions of this Agreement, and LICENSEE’s payment of the applicable license fees, TOMOS hereby grants LICENSEE a limited, non-exclusive, internal-use-only, non-transferable, non-assignable, non-sublicensable license to access TOMOS servers and use the SOFTWARE, in object code form only, solely (i) during the term identified on the PURCHASE ORDER (subject to earlier termination pursuant to this Agreement, the "TERM") and (ii) for the number of concurrent users and/or jobs specified on the PURCHASE ORDER. TOMOS reserves all rights not expressly granted herein.

1.2 License Management Software. All SOFTWARE shall be accessed on TOMOS’ servers such that its usage can be measured and managed by the License Management Software provided by TOMOS, which will prohibit the SOFTWARE from being used beyond the scope of license in this Agreement and will disable access to the SOFTWARE at the end of the TERM. LICENSEE hereby consents to the incorporation of such mechanisms and hereby waives and releases TOMOS from and against any and all claims, actions, causes of action, damages and judgments that may accrue or arise in connection therewith. LICENSEE shall not tamper or interfere with the License Management Software in any way.

1.3 Restrictions. LICENSEE shall not: (i) copy, modify, translate, adapt, create derivative works from or decompile the SOFTWARE, or any portion thereof, or create or attempt to create, by reverse engineering or otherwise, the source code from the object code supplied hereunder, except to the extent that such portion of the source code is provided pursuant to the terms of an open source license, (ii) rent, lease, loan, sell, transfer, publish, display, distribute, disclose or make the SOFTWARE available to third parties or use the SOFTWARE, or any portion thereof, in a service bureau, time-sharing or outsourcing service or otherwise use the SOFTWARE for the benefit of third parties, (iii) remove or alter any proprietary rights notices on the SOFTWARE, (iv) export, import or re-export the SOFTWARE in violation of any applicable law, rule or regulation of any jurisdiction, (v) violate or attempt to violate the security or integrity of, or gain or attempt to gain unauthorized access to, this SOFTWARE or any other service, system or communication; (vi) circumvent the user authentication features or security of any host, network or account, or to use or distribute tools designed to compromise security; (vii) interfere with another’s use of the SOFTWARE through the transmitting of a virus or other harmful item to deliberately overload or flood that SOFTWARE or system; (viii) impose an unreasonable or disproportionately large load on any systems or infrastructure; or (ix) disclose, without TOMOS’ prior written approval, the SOFTWARE or any code, information or materials contained in or related to the SOFTWARE, license keys, analysis or performance information, results of SOFTWARE performance benchmarks or documentation to any entity (except to LICENSEE’s employees having a need to know for purposes of authorized use hereunder and who are informed in writing of the obligations of this section) or use any of the foregoing other than as expressly authorized hereunder. LICENSEE shall notify TOMOS immediately of any actual or imminent unauthorized access to, or use or disclosure of, any of the foregoing. LICENSEE recognizes that the unauthorized use or disclosure of any of the foregoing will give rise to irreparable injury to TOMOS or its licensors or affiliates for which monetary damages may be an inadequate remedy; and LICENSEE agrees that TOMOS or its licensors or affiliates may seek and obtain injunctive relief against the breach or threatened breach of LICENSEE’s obligations hereunder, in addition to any other legal and equitable remedies which may be available.

2. SERVICES

TOMOS will provide LICENSEE with access to its proprietary SOFTWARE to allow LICENSEE to perform quality assurance testing on LICENSEE’s internal software or software LICENSEE is considering for use on its system. LICENSEE acknowledges and agrees that it shall comply with all policies and procedures necessary for using the TOMOS SERVICE and LICENSEE is responsible for all information, parameters and data necessary for testing on the TOMOS SERVICE.

3. TECHNICAL SUPPORT

LICENSEE acknowledges that, except as expressly provided in this Section 3, all support for the SOFTWARE shall be provided as defined herein. TOMOS shall provide support to LICENSEE only with respect to access and availability of the SOFTWARE maintained by TOMOS pursuant to this Agreement ("TOMOS SUPPORT"). TOMOS SUPPORT shall be available via telephone and email during the hours of 8:00 a.m. to 5:00 p.m., eastern time, Monday through Friday, excluding federal holidays. All after-hours technical support will be provided at an additional cost to LICENSEE, as determine by TOMOS in its sole discretion.

4. TERMINATION

TOMOS shall have the right to immediately terminate this Agreement with no refund: (a) for a material breach of this Agreement by LICENSEE (including, without limitation, LICENSEE's failure to meet its payment obligations hereunder), or (b) if LICENSEE becomes insolvent or is unable to pay its debts as due, enters into or files (or has filed or commenced against it) a petition, arrangement, action or other proceeding seeking relief or protection under the bankruptcy laws of the United States or similar laws of any other jurisdiction or transfers all of its assets to another person or entity. TOMOS shall have the right to terminate this Agreement upon written notice to LICENSEE in the event of the termination of a third party license to code that is included in the SOFTWARE, provided that, in the event of any such termination of this Agreement, TOMOS shall refund the license fees paid by LICENSEE hereunder on a pro rata basis depending on the portion of the TERM that has past as of the date of termination of this Agreement, or, if the TERM is perpetual, depending on the portion of a five-year period that has past as of the date of termination of this Agreement. In the event of termination or expiration of this Agreement for any reason, LICENSEE shall promptly discontinue all use of the SOFTWARE. Notwithstanding the foregoing, Sections 1.3(ix), 5, 6, 9, 10 and 11 shall survive the expiration or termination hereof for any reason.

5. CONFIDENTIAL INFORMATION

Commencing on the date LICENSEE executes this Agreement and continuing for a period of one (1) year from the termination of this Agreement, each party shall protect as confidential, and shall not disclose to any third party without the disclosing party's written consent, any confidential information received from the disclosing party or otherwise discovered by the receiving party during the term of this Agreement, including, but not limited to, the pricing and terms of this Agreement, and any information relating to the disclosing party's technology, business affairs, marketing or sales plans, and any non-public information regarding the performance of the TOMOS SERVICES (collectively the "CONFIDENTIAL INFORMATION"). The parties shall use CONFIDENTIAL INFORMATION only for the purpose of this Agreement and shall only disclose CONFIDENTIAL INFORMATION to affiliates, employees, subcontractors or advisors under a similar obligation of confidentiality. The foregoing restrictions on use and disclosure of CONFIDENTIAL INFORMATION do not apply to information that: (i) is in the possession of the receiving party at the time of its disclosure and is not otherwise subject to obligations of confidentiality; (ii) is, or becomes publicly known, through no wrongful act or omission of the receiving party; (iii) is received without restriction from a third party free to disclose it without obligation to the disclosing party; (iv) is developed independently by the receiving party without reference to the CONFIDENTIAL INFORMATION, or (v) is required to be disclosed by law, regulation, or court or governmental order, however, the party subject to such law, regulation or court or governmental order shall use reasonable efforts to minimize such disclosure and shall notify the other party contemporaneously of such disclosure.

6. OWNERSHIP RIGHTS

LICENSEE acknowledges that the SOFTWARE is the sole and exclusive property of, and is valuable, confidential and proprietary to, TOMOS or its licensors, including, without limitation, all rights to patents, copyrights, trademarks, trade secrets and any other intellectual property and proprietary rights inherent therein or appurtenant thereto, in all media now known or hereinafter developed, and LICENSEE shall protect the foregoing to at least the same extent that it protects its own confidential information. LICENSEE acknowledges and agrees that the TOMOS SERVICE, including, but not limited to, any images, interfaces, animations, video, audio, and text and User Documentation are proprietary products of TOMOS, its licensors and/or the author(s) protected under United States copyright laws and international treaty provisions. LICENSEE acknowledges that it is not purchasing title to the TOMOS SERVICE or copies thereof, but rather is being granted only a license to use the TOMOS SERVICE. LICENSEE shall not use TOMOS’s or its licensors’ names or marks or employee names, or adaptations thereof, in any advertising, promotional or sales literature without TOMOS’s, or its licensor’s, as applicable, prior written consent. LICENSEE shall inform TOMOS promptly in writing of any alleged infringement of TOMOS’s or its licensors’ rights and of any available evidence thereof. All data created or transmitted by LICENSEE and stored on TOMOS servers as part of the TOMOS SERVICES ("DATA") shall at all times be owned by LICENSEE. Except as instructed by LICENSEE directly or through instructions provided to the servers through LICENSEE's use of the SOFTWARE, TOMOS shall treat DATA as CONFIDENTIAL INFORMATION. Upon termination or cancellation of this Agreement for any reason, TOMOS shall return all LICENSEE DATA to LICENSEE in the file format used by the SOFTWARE. LICENSEE agrees and acknowledges that it is in a better position to foresee and evaluate any potential damage or loss it may suffer in connection with loss of DATA and that the fees payable under this Agreement have been calculated on the basis that TOMOS shall exclude liability for any and all loss of DATA as a result of LICENSEE use of the TOMOS SERVICE.

7. SECURITY

All access to the TOMOS SERVICE shall be controlled by user names and passwords issued by TOMOS to LICENSEE from time to time upon request by LICENSEE. Each user name and password will be unique to each staff member that LICENSEE designates is authorized to access the TOMOS SERVICE. LICENSEE is solely responsible for the security of the user names and passwords issued to LICENSEE's staff members. Any access to the TOMOS SERVICE using such user names and passwords will be deemed access by LICENSEE, except where access is the result of unauthorized disclosure of user names and passwords by the negligent or willful act of TOMOS.

8. LIMITED WARRANTY

TOMOS warrants that the SOFTWARE will perform substantially in accordance with the accompanying documentation for a period of thirty (30) days from the date of TOMOS’ provision of the SOFTWARE to LICENSEE. TOMOS' sole and exclusive obligation and liability for any breach of the foregoing warranty shall be, in TOMOS' sole discretion: (i) to repair the SOFTWARE; or (ii) to refund the license fees paid by LICENSEE for the TOMOS SERVICE. In no event shall the warranty herein apply: (i) to SOFTWARE that has been accessed by an unauthorized party or for an unauthorized or unsupported purpose, or (ii) to difficulties or defects that are not reproducible or that are due to LICENSEE’s computer hardware, third party software, environment, operating system or other causes external to the TOMOS SERVICE. TOMOS does not warrant that the TOMOS SERVICE will operate uninterrupted or error-free or meet LICENSEE's particular requirements. TOMOS exercises no control over and accepts no responsibility for the content of the information passing through the TOMOS SERVICE. TOMOS specifically denies any responsibility for the accuracy or quality of information obtained through the TOMOS SERVICE. Use of any information obtained via the TOMOS SERVICE is at LICENSEE's own risk. EXCEPT AS SET FORTH ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TOMOS AND ITS AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF ACCURACY, CORRECTNESS, USE OR APPLICATION, ADEQUACY AND SUITABIITY, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

9. OPEN SOURCE

The TOMOS SERVICE or portions thereof may include code and/or files produced and distributed under open source licenses ("OPEN SOURCE CODE"). Such OPEN SOURCE CODE is provided "as is" without warranty of any kind, either express or implied. The entire risk as to the quality and performance of OPEN SOURCE CODE remains with LICENSEE. LICENSEE assumes the cost of all necessary servicing, repair or correction beyond the limited warranties provided in Section 4 above.

10. INDEMNITY

LICENSEE will, at its own expense, indemnify, defend and hold harmless TOMOS, its affiliates and licensors, and their respective directors, officers, trustees, students, employees and agents, from and against any action, damages, suits, claims, liabilities, costs and expenses (including reasonable attorneys fees) based on a claim arising from or relating to this Agreement or LICENSEE’s use of the TOMOS SERVICE. The indemnified party shall have the exclusive right to control such defense. In no event shall LICENSEE settle any such claim, lawsuit or proceeding in any manner that materially prejudices the indemnified party’s rights without the indemnified party’s prior written approval.

11. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TOMOS OR ITS AFFILIATES OR LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST BUSINESS OR PROFITS, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE MAINTENANCE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TOMOS' AND ITS AFFILIATES’ ENTIRE AGGREGATE LIABILITY UNDER OR RELATING TO THIS AGREEMENT, FOR ANY REASON(S) AND UPON ANY CAUSE(S) OF ACTION WHATSOEVER, SHALL NOT EXCEED THE PRICE ACTUALLY PAID BY LICENSEE FOR THE USE OF THE TOMOS SERVICE. NO LICENSOR OF TOMOS SHALL HAVE ANY LIABILITY TO LICENSEE FOR LOSS OR DAMAGES ARISING OUT OF THIS AGREEMENT OR THE SOFTWARE.

12. GENERAL

This Agreement and its enforcement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to conflicts-of-law principles. The exclusive venue for any action relating to this Agreement shall be the state and federal courts situated in the State of New York, County of New York, and each party expressly consents to the jurisdiction of such courts. Neither party shall be liable for failure to perform an obligation under this Agreement where such failure is due to fire, flood, labor dispute, natural calamity, acts of the government or other causes beyond its reasonable control. The parties are independent contractors. No agency, partnership or joint venture is created by this Agreement. This Agreement may not be modified or altered except by written instrument duly executed by both parties. If any provision of this Agreement is deemed to be unenforceable, that provision shall be enforced to the maximum extent permitted to effect the parties' intentions hereunder, and the remainder of this Agreement shall continue in full force and effect. The failure of either party to exercise any right provided for herein shall not be deemed a waiver of any right hereunder. Any notices hereunder shall be in writing to the receiving party’s address set forth on the PURCHASE ORDER. Notices shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, three (3) days after deposit in the U.S. mails, postage prepaid, certified mail, return receipt requested; (iii) if by fax, upon receipt thereof as evidenced by fax confirmation; or (iv) if by next day delivery service, upon such delivery. Either party may change its address by giving written notice to the other party. This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements, written or oral, relating to the subject matter hereof.

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