End User Software License Agreement LOCUSFOCUS SERVICES, SOFTWARE, SOFTWARE PRODUCTS, ADD-INS NOTICE TO USER: THIS IS A BINDING LEGAL AGREEMENT. READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE SERVICE, SOFTWARE OR ADD-IN). BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE LOGIN PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF LOCUSTEC.COM/LOCUSFOCUS.COM'S/LOCUSFOCUS.NET ONLINE SERVICE, INCLUDING OFFLINE COMPONENTS (COLLECTIVELY, THE "SERVICE"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICE. This End User License Agreement ("Agreement") between the licensor, Locus Technologies ("Locus"), and You as the licensee ("You" or "Your") sets out the terms and conditions under which You may use the Locus Service. As part of the Service, Locus will provide you with use of the Service, including a browser interface and data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the Locus website incorporated by reference herein, including but not limited to Locus's privacy and security policies. 1. DEFINITIONS 1.1 "Service" means all online and offline components of the LocusFocus products including software, graphics, sounds, data storage, ancillary programs, tools, training materials, instructions, diagrams, and documentation that are made available to you at www.LocusFocus.com/Locustec.com or another designated web site or IP address, or ancillary online or offline products and services provided to you by Locus, to which you are being granted access under this Agreement, including the Locus's Technology and the Content; 1.2 "Software" means the computer program and any associated printed, on-line or electronic user guides or manuals that Locus provides with the computer program ("Documentation"). Software may be delivered either on media, email, online or through downloads from the Locus's web site, located at www.Locustec.com, or www.LocusFocus.com, or any successor or replacement site designated by Locus in its sole discretion ("Web Site"). If delivered on media, Software also includes all of the contents of the media on which the computer program is provided , and all packaging, Software also includes all third party material, including, but not limited to software, images, sound files or other work. Software also includes any update, upgrade, or other modification of the Software first licensed by You. 1.3 "Add-in" means any additional component of a Locus Product developed by Locus and provided or sold to customers that is solely designed to enhance the performance of a Locus product but which cannot be used without the Locus Product. Locus Excel add-ins and toolbars are examples of Locus Add-ins. 1.4 Customer Data" means any data, information or material provided or submitted by you to the Service in the course of using the Service; 1.5 "Effective Date" means the earlier of either the date this Agreement is accepted by selecting the "I Accept" option presented on the screen after this Agreement is displayed or the date you begin using the Service; 1.6 "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; 1.7 "Locus Technology" means all of Locus's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Locus in providing the Service; 1.8 "User(s)" means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by Locus at your request) 2. PRIVACY & SECURITY; DISCLOSURE 2.1 Locus's privacy and security policies may be viewed at http://www.Locustec.com or http://www.LocusFocus.com. Locus reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Individual users when they initially log in, will be asked whether or not they wish to receive marketing and other non-critical Service-related communications from Locus from time to time. They may opt out of receiving such communications at that time or at any subsequent time by contacting Locus Customer Help Desk. Note that because the Service is a hosted, online application, Locus occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service. 3. LICENSE AND RESTRICTIONS 3.1 Locus hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Locus and its licensors. You may not access the Service if you are a direct competitor of LocusFocus.com, except with Locus's prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. 3.2 You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. 3.3 You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks. 3.4 Any information supplied by Locus or obtained by You, as permitted hereunder, may not be disclosed to any third party or used to create any Service that is substantially similar to the expression of this Service. 4. YOUR RESPONSIBILITIES 4.1 You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Locus immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Locus immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another Locus user or provide false identity information to gain access to or use the Service. 5. ACCOUNT INFORMATION AND DATA 5.1 Locus does not own any data, information or material that you submit to the Service in the course of using the Service ("Customer Data"). You, not Locus, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Locus shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), Locus will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. Locus reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Locus shall have no obligation to maintain or forward any Customer Data. 6. INTELLECTUAL PROPERTY OWNERSHIP 6.1 Locus, alone (and its licensors, where applicable), shall own all right, title and interest, including all related Intellectual Property Rights, in and to the LocusFocus.com/Locustec.com Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the LocusFocus.com/Locustec.com Technology or the Intellectual Property Rights owned by Locus. The LocusFocus.com/Locustec.com and EIM, names, the logo, and the product names associated with the Service are trademarks or services marks of Locus or third parties, and no right or license is granted to use them. 7. REPRESENTATIONS & WARRANTIES 7.1 Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Locus represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Locus help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct. 8. CHARGES AND PAYMENT OF FEES 8.1 You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payments may be made annually, monthly, or quarterly, consistent with the Customer Agreement. All payment obligations are noncancelable and all amounts paid are nonrefundable. You are responsible for paying for all services ordered for the entire License Term, whether or not such services are actively used. 8.2 Locus reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party. 9. BILLING AND RENEWAL 9.1 Locus charges and collects in advance for use of the Service. Locus will automatically renew and issue an invoice to you (a) every month for monthly licenses, (b) every quarter for quarterly licenses, (c) each year on the subsequent anniversary for annual licenses, or (d) as otherwise mutually agreed upon. Fees for other services will be charged on an as-quoted basis. Locus's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Locus's income. 9.2 You agree to provide Locus with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Locus reserves the right to terminate your access to the Service in addition to any other legal remedies. 9.3 Unless Locus in its discretion determines otherwise, entities with headquarters and a majority of users resident in the United States will be billed in U.S. dollars and subject to U.S. payment terms and pricing schemes. 9.4 If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. 10. NON-PAYMENT AND SUSPENSION 10.1 In addition to any other rights granted to Locus herein, Locus reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for usage during any period of suspension. If you or Locus initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the User Agreement or Proposal. You agree that Locus may bill you for such unpaid fees. 10.2 Locus reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that Locus has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 60 days or more delinquent. 11. TERMINATION UPON EXPIRATION/REDUCTION IN NUMBER OF LICENSES 11.1 This Agreement commences on the Effective Date. For Professional and Enterprise Edition licenses, the Initial Term will be as mutually agreed upon, commencing on the date you agree to pay for the Service by completing a customer purchase order or other contract mechanism. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term. 11.2 Either party may terminate this Agreement, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least thirty (30) business days prior to the date of the invoice for the following term. 11.3 In the event this Agreement is terminated (other than by reason of your breach), Locus will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. 11.4 You agree and acknowledge that Locus has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination. 12. TRANSFER 12.1 This license is not transferable without the prior written consent of Locus. This license pertains only to the entity to which Locus has contracted and specifically does not apply to any additional entities that the Licensee may acquire during the period of this agreement. Any newly acquired entities, no matter the method by which they were acquired, require separate agreements with Locus prior to using the Service. 13. TRADEMARKS, COPYRIGHTS AND PATENTS 13.1 The Service, and all trademarks affixed thereto, are owned by Locus and its suppliers, and its structure, organization, and code are the valuable trade secrets of Locus and its suppliers. The Service is or may be also protected by United States copyright law and international treaty provisions, and all or part of the Service may be protected by patents. You agree that Locus and/or its licensors own all right, title and interest in the Service and in all patents, trademarks, trade names, inventions, copyrights, know how and trade secrets relating to the design, manufacture, operation or service of the Service. Nothing in this Agreement shall change Locus's or any of its licensors' ownership rights to their respective intellectual property, including but not limited to the Service, Software and Add-Ins. 13.2 You acknowledge and understand that Locus evaluates, designs, develops, and acquires technology, software applications, and other products, and for this reason any such technology, software applications, or products that are independently developed, evaluated, designed or acquired by Locus may contain ideas or concepts similar to those that may be developed by You. Nothing in this Agreement shall prevent Locus from licensing, acquiring or independently developing and marketing, directly or indirectly through third parties, products similar to and competitive with software developed by You. Nothing herein shall be construed to grant You any rights in any such products so developed or acquired, or any rights to the revenues or any portion thereof derived by Locus from the use, sale, lease, license or other disposal of any such independently developed products. 14. TERMINATION OF LICENSE. 14.1 Any breach of your payment obligations or unauthorized use of the Locus Technology or Service will be deemed a material breach of this Agreement. Locus, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, Locus may terminate a free account at any time in its sole discretion. You agree and acknowledge that Locus has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach. 15. DISCLAIMER OF WARRANTIES 15.1 LOCUS AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. LOCUS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR 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 YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU 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 LOCUS AND ITS LICENSORS. 16. INTERNET DELAYS 16.1 LOCUS'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. LOCUS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. 17. MUTUAL INDEMNIFICATION 17.1 You shall indemnify and hold Locus, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Locus (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Locus of all liability and such settlement does not affect Locus's business or Service); (c) provides to you all available i nformation and assistance; and (d) has not compromised or settled such claim. 17.2 Locus shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Locus of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Locus; provided that you (a) promptly give written notice of the claim to Locus; (b) give Locus sole control of the defense and settlement of the claim (provided that Locus may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to Locus all available information and assistance; and (d) have not compromised or settled such claim. Locus sha ll have no indemnification obligation, and you shall indemnify Locus pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s). 18. LIMITATION OF LIABILITY 18.1 IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 18.2 IN NO EVENT WILL LOCUS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES, INCLUDING ANY LOST PROFITS OR LOST SAVINGS, EVEN IF A REPRESENTATIVE OF LOCUS OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. LOCUS'S LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER ARISING UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN EQUITY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE SHALL NOT EXCEED THE AMOUNT OF $10.00 (TEN DOLLARS). THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS PROVIDED IN THIS AGREEMENT SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. 19. ADDITIONAL RIGHTS 19.1 Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you. This is repetitive from 18.2 20. ALLOCATED RISK 20.1 THE PROVISIONS FOR LIMITATIONS, EXCLUSIONS AND DISCLAIMERS OF WARRANTIES, LIABILITIES AND REMEDIES ALLOCATE THE RISKS BETWEEN THE PARTIES IN THIS AGREEMENT AND ARE A MATERIAL CONSIDERATION FOR LOCUS ENTERING INTO THIS AGREEMENT. YOU ACKNOWLEDGE THAT THE LICENSE FEE REFLECTS THIS ALLOCATION OF RISK. 21. NOTICE TO U.S. GOVERNMENT END USERS 21.1 The Software and Add-In are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the United States Government or any agency, department or instrumentality thereof is subject to the restrictions set forth in the Commercial Computer Software -- Restricted Rights clause at FAR 52.227-19 or the Commercial Computer Software -- Licensing clause at NASA FAR Supplement 1852.227-86. Manufacturer is Locus Technologies, 299 Fairchild Drive, Mountain View, CA , 94043 22. LOCAL LAWS AND EXPORT CONTROL GOVERNING LAW. 22.1 This site provides services and uses 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 and the export control regulations of Switzerland and the European Union. The user of this site ("User") acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States, Switzerland and/or the European Union 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 n otice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export, as may be required. 22.2 This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. 22.3 Locus and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America, Switzerland and/or the European Union, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States, Swiss or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes. 22.4 Except for copyright issues, which will be governed by United States federal law, this Agreement will be construed under the laws of the State of California, except for that body of law dealing with conflicts of law. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If any provision of this license shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent possible, and the remaining provisions of this Agreement will remain in full force and effect. 22.5 You acknowledge that You have read this Agreement, understand it, and that by using the Service, Software or Add-In You, agree to be bound by its terms and conditions. You further agree that this Agreement is the complete and exclusive statement of the Agreement regarding the Software and its use. No variation of the terms of this Agreement or any different terms will be enforceable against Locus including an express waiver of this Agreement, unless in a writing signed by an executive officer of Locus, although Locus may vary the terms of this Agreement in connection with the licensing of any updates, upgrades or other modifications of the Software or Add-In provided to You. In the event that it is determined by a court of competent jurisdiction as a part of a final non-appealable judgment that any provision of this Agreement (or part thereof) is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, w hile the remainder of the Agreement will remain in full force and effect. 22.6 Assignment; Change in Control 22.6.1. This Agreement may not be assigned by you without the prior written approval of Locus but may be assigned without your consent by Locus to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Locus directly or indirectly owning or controlling 50% or more of you shall entitle Locus to terminate this Agreement for cause immediately upon written notice. 23. MAINTENANCE 23.1 During the Maintenance term, Customer Authorized Contacts may notify Locus's Locus Customer Support Desk of an error, defect, or malfunction in the Locus Software or Service. Locus will use commercially reasonable efforts to resolve the matter according to problem severity ("Maintenance"). 23.1.1. Severity. "Severity 1" is an emergency production situation where the Locus Software or Service is totally inoperable or fails catastrophically and there is no workaround; "Severity 2" is a detrimental situation (and there is no workaround) where (a) performance degrades substantially under reasonable loads causing a severe impact on use, (b) the Locus Software or Service is usable but materially incomplete; or (c) one or more mainline functions or commands is inoperable; "Severity 3" is where the Locus Software or Service is usable, but does not provide a function in the most convenient manner; and "Severity 4" is a minor problem or documentation error. 24. GENERAL 24.1 With respect to U.S. Customers, this Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California. With respect to Non-U.S./Japan Customers, this Agreement shall be governed by the laws of Switzerland, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the courts of Switzerland. Unless otherwise provided by Locus in its discretion, Japanese Customers shall be governed by a separate agreement. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Locus as a result of this agreement or use of the Service. The failure of Locus to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Locus in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and Locus and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. 25. MODIFICATION TO TERMS 25.1 Locus reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes. 26. NOTICES 26.1 Locus may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in Locus's account information, or by written communication sent by first class mail or pre-paid post to your address on record in Locus's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). 26.2 Any notices to Locus under the provisions of this Agreement shall be given in writing at the address set forth below or to such other address as Locus may substitute. Locus Technologies 299 Fairchild Drive Mountain View, CA 94043 Attention: Secretary cc: Locus Customer Support © Copyright 1999-2007 Locus Technologies. • All rights reserved • Various trademarks held by their respective owners.