ManTech International Corporation

LIMITED USE SOFTWARE EVALUATION LICENSE AGREEMENT

1. CONDITIONS. This document contains the SRS Technologies, Systems Solutions Division, ("SRS") Software Evaluation License Agreement ("License") which governs the use of this software. DO NOT USE THE SOFTWARE IF YOU HAVE NOT READ, UNDERSTOOD, AND AGREED TO THE TERMS AND CONDITIONS OF THIS LICENSE. YOU MAY RETURN THE SOFTWARE BEFORE USING THE SOFTWARE IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS.

2. GRANT OF LICENSE. SRS hereby grants, and you accept, a limited license to use the computer program(s), user manual(s), and any related material(s) contained in this product (collectively called the "Software" in this License) during the Evaluation Period solely for the purposes of evaluating the Software’s potential application to your requirements. For purposes of this Agreement, the Evaluation Period is no more than 30 days from the installation and registration date. You may not transfer or sublicense, either temporarily or permanently, rights to use the Software under this License without the prior written consent of SRS. You agree NOT to:

i) copy the Software or related documentation;
ii) modify, disassemble, translate or reverse engineer the Software in whole or in part;
iii) encumber, time share, rent or lease the Software; or
iv) manufacture, adapt, create derivative works of, translate, localize, port, or otherwise modify the Software or related documentation, or grant anyone a license to engage in similar conduct.

3. PURPOSE. The Software is provided so that the licensee can determine if the Software will meet or is likely to meet their needs.

4. TERMS. This License is effective from the date you begin to use the Software and continues for the Evaluation Period. Upon expiration of the Evaluation Period, you shall destroy any archival copies you may have recorded on any memory system or magnetic medium. The Software is owned by SRS and is protected by US copyright laws, US Export Administration Act or any other export laws, international treaty provisions and all other applicable national laws.

5. RIGHTS AND DUTIES. You acknowledge that the Software is the sole and exclusive property of SRS and/or its licensors. By accepting this License, you do not become the owner of the Software, but you do have the right to use the Software in accordance with this License. You agree to use best efforts and take all reasonable steps to protect the Software from unauthorized use, illegal reproduction, or illicit distribution.

6. The SRS Technologies, Inc. End User License Agreement, which appears at the end of this Limited Use Software Evaluation License agreement, is a subsisary part of this Limited Use Software Evalaution License Agreement. The complete End User License Agreement is incorporated with the exception of Articles 2., 4., 5., 6.

7. LIMITED WARRANTY. Refer to the End User License Agreement, which appears below. USE THIS EVALUATION SOFTWARE AT YOUR OWN RISK. 8. TERMINATION OF LICENSE. If any of the terms or conditions of this License are broken, SRS has the right to terminate this License and demand that you immediately return the Software and all related documentation to SRS. At that time, you must also certify in writing that you have not retained any copies of the Software or portions thereof.

9. ENTIRE LICENSE. Refer to End User License Agreement, which appears below.

END USER LICENSE AGREEMENT

END USER LICENSE AGREEMENT (this "Agreement") is a contract between you ("Licensee" or "You") and SRS Technologies, a California corporation, with a principal address at 500 Discovery Drive, Huntsville, Alabama 35806 ("Licensor"). It sets forth the terms and conditions that apply to your access and use of the Software and associated services identified below. To install this Software, you must acknowledge your acceptance of this Agreement by clicking on the "YES" button during the installation process when prompted to accept this license agreement. Your clicking the "YES" button and your access to or use of the Software will constitute acceptance of and your agreement to all terms and conditions of this Agreement. If you do not agree with the terms and conditions stated herein, immediately contact Licensor and do not access or use the Software, as any such access or use is unlicensed and strictly prohibited. The "Effective Date" of this Agreement is the date that you click on the "YES" button when prompted to accept this agreement during the installation of this Software. A copy of this license agreement will be copied to the folder containing the program’s executable software.

WHEREAS, Licensee desires to license the Software described herein from Licensor and Licensor is willing to license such Software to Licensee, all on the terms and conditions hereinafter set forth.

NOW, THEREFORE, in consideration of the foregoing and the respective covenants, agreements and undertakings of the parties contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

1. GRANT OF LICENSE. Subject to full and timely payment of all amounts owed or due to Licensor under this Agreement and the other terms and conditions hereof, Licensor hereby grants Licensee, and Licensee hereby accepts, a personal, perpetual, non-exclusive, non-transferable limited license under Licensor’s rights to install, use and execute during the Term of this Agreement (as defined in Section 4 hereof) a single copy of Licensor’s Document Detective software product (the "Software"), solely for Licensee’s own internal use and solely for its own benefit (the "License"). Licensee acknowledges that some of the rights granted in the License may be in the nature of a sublicense to install, use and execute certain components of the Software that are licensed to Licensor from third parties and is subject to the terms and conditions imposed by such third parties to the extent Licensee is advised of or has reason to know of such terms.

2. UPDATES. Licensor may release updates to the Software. Licensee can acquire such updates, upon request, to the extent that they are issued by Licensor. In Licensor’s sole discretion, Licensor may deem an update to the Software to be a "New Version." In order to acquire a New Version, Licensee must pay the appropriate licensing fees associated with such New Version, provided that Licensor may, in its sole discretion, designate some updates or New Versions to be "Mandatory Upgrades" and Licensor will provide such Mandatory Upgrades to Licensee at no cost. The Mandatory Upgrade shall replace the software previously provided and shall be considered Software for all purposes hereunder. The substitution shall have no effect on the rights and obligations of the parties under this Agreement, provided that the previously provided software shall no longer be considered licensed Software under this Agreement and shall no longer be used by Licensee. The substitution of the Software shall not expand or reset the time period of the limited warranty under this Agreement. Licensee agrees to promptly accept and install all Mandatory Upgrades that are provided by Licensor.

3. COVENANTS, ACKNOWLEDGMENTS AND OBLIGATIONS OF THE LICENSEE.

(a) This Agreement provides only a limited right to install, use and execute the Software as provided herein. Licensee agrees that it will not, and will not permit any other person or entity to, create, duplicate, replicate, copy, adapt, "unlock," translate, alter, revise, sell, resell, assign, rent, lease, lend, transfer, distribute, sublicense, modify, merge, disassemble, manufacture, localize, port, reverse engineer, reverse compile, make derivative works of the Software or any documentation or components thereof for any purpose whatsoever, directly or indirectly by any method, except where and only to the extent that such operations are permitted according to mandatory, non-waivable, statutory legislation and Licensee must comply with that legislation in all respects. Notwithstanding the foregoing, Licensee may make one archive copy of the Software for non-production backup and in-house disaster recovery purposes, provided that the Software and the back-up copy of the Software shall not be placed on a server that is accessible via a public network such as the Internet. Licensee agrees not to develop any software based on any portion or (to the extent this prohibition is permitted by law) based on any function of the Software. All copies, modifications and derivative works (whether or not authorized) automatically upon creation (i) belong to Licensor, (ii) become subject to the limitations and obligations of Licensee under this Agreement, and (iii) are excluded from any warranty or other obligation of Licensor. Further, Licensee agrees to assign, and hereby does assign automatically upon creation, all right, title and interest in and to such copies, modifications and derivative works (whether or not authorized) to Licensor, and further, hereby irrevocably appoints Licensor and its representatives, assigns and designees as attorney in fact for Licensee with full authority to sign such documents, including without limitation, documents of assignment and applications for registration or renewal of rights, as necessary for Licensor to secure and record full right, title and interest in and to such copies, modifications and derivative works. Licensee acknowledges that modification and alteration of the Software may affect the operability and functions of the Software and that Licensor shall be relieved of all of its obligations under this Agreement with respect to any Software that is modified or altered by any person or entity other than Licensor.

(b) Licensee acknowledges, understands and accepts that (i) there is inherent risk of compromising information when sharing or transferring electronic documents, and Licensee accepts those risks and the fact that while the Software is intended to reduce such risks, it does not eliminate the risk of compromising information; (ii) Licensee shall be solely responsible for insuring that its disclosure of information, including but not limited to third party information, complies with all applicable local, state and federal laws, rules, regulations and requirements relating to privacy, including, without limitation, the Health Insurance Portability and Accountability Act of 1996 and any and all amendments thereto; (iii) improper or unauthorized use of the Software, including use beyond the scope of the License granted herein, may increase the risk of the inadvertent disclosure of compromising information; (iv) this is the first commercial release of the Software, and there is a possibility that the Software may not have the same level of maturity as other more established software products; (v) the Software’s electronic document security scanning process is intentionally highly redundant for security and confidence purposes which results in an increased processing time required to review an electronic document; (vi) the Software was designed to operate with the majority of common documents types referenced in the documentation provided by Licensor, but Licensor cannot and does not guarantee that the Software will process or make secure any such documents; and (vii) additional hidden and insecure data can be added or revealed by mishandling of a document after it has been processed by the Software.

(c) Licensee agrees that: (i) the Software is a valuable and unique asset of Licensor; and (ii) Licensee will maintain all matters and information related to the Software, and all media and documentation that relate to the design, development, operation, testing or use thereof, or to any additions or modifications thereto, including, without limitation, all updates and New Versions (collectively, "Confidential Information"), in strict confidentiality, will use the Confidential Information only as expressly permitted by this Agreement and will require any persons or entities to agree, before having access to the hardware or media containing the Software, to also maintain the Confidential Information as strict confidentiality. A breach of this provision by any such person or entity that has obtained Confidential Information from Licensee or its personnel shall be deemed to be a breach hereof by Licensee. Without limiting the foregoing, Licensee shall maintain at least as protective procedures regarding Confidential Information as it maintains with respect to its own confidential information, but in no event less than a reasonable standard of care. Licensee shall not remove from any copy of the Software any proprietary notices contained thereon or therein.

(d) Licensee shall be responsible for and obtain all rights necessary for the operation of the Software in connection with other of Licensee’s programs or materials, including, without limitation, all rights of access and rights to modify under copyright (other than Licensor’s copyright in the Software), confidentiality agreements, the Computer Fraud and Abuse Act, and all other forms and sources of rights or restrictions. Licensee acknowledges and agrees that Licensor is not responsible for the software, hardware, products and services of other entities or any acts thereof.

(e) Licensee agrees to indemnify, defend and hold harmless Licensor for any allegation, claim, suit, proceeding or action arising out of or relating to Licensee’s failure to comply with the requirements and obligations of Licensee under this Agreement, regardless of the nature of the claim, whether in tort, contract or otherwise.

4. TERM OF LICENSE; TERMINATION. Subject to the terms of this Agreement, the License granted under this Agreement shall be perpetual (the "Term"). Notwithstanding the foregoing, Licensor may, in its sole discretion, terminate the License and this Agreement following any breach of any provision of this Agreement by Licensee. Upon the termination of this Agreement or the License granted herein, Licensee shall return to Licensor all versions of the Software and all media, materials and documentation provided hereunder, including, without limitation, all partial and complete copies thereof, or destroy and certify destruction of the same, and Licensee shall have no further right to install, use or execute the Software. At any time, in the event that any part or all of the Software, or any of the documentation or materials provided in connection therewith, in Licensor’s sole judgment becomes or is likely to become the subject of any claim of infringement of third party rights or is incapable of operating up to the standards of Licensor, then (i) the License granted with respect to any affected part of the Software may be automatically terminated upon notice to Licensee, (ii) Licensee shall immediately cease use of the affected part of the Software and of any affected documents or materials, and (iii) Licensor at its own election and expense will either (a) provide substitute software; or (b) modify the Software so that it no longer infringes (or so that it invokes a non-infringing freely available third party application that is licensed under open source) and operates to Licensor’s standards, or if none of the foregoing is feasible in Licensor’s sole discretion, the , at Licensor’s request, will return and cease use of all of the Software or any portions thereof as requested by Licensor, and will provide Licensor with written certification of the same. Licensee shall be entitled to a refund of the applicable licensing fees actually paid to Licensor for the portion of the Software affected; except that no refund will be provided where the infringement, likelihood of infringement, or failure to comply with standards is related to any alteration or modification or substitution by Licensee. For the sake of clarity, and without implying any responsibility in matters not listed here, Licensor shall in no event bear any responsibility for problems, liabilities, occurrences, or matters relating to or arising from (i) alterations or modifications to the Software, (ii) substitution of third party java libraries, (iii) the malfunction of Licensee’s equipment or other software products not supplied, recommended, approved or implemented by Licensor, or (iv) delays or interruptions in the delivery, installation or operation of the Software to the extent caused by events beyond the reasonable control of Licensor. The provisions of Sections 2, 3, 4, 5(c), 7, 8, 9(c), and 10 - 23 of this Agreement shall survive the termination of this Agreement.

5. PAYMENT

(a) Prior to downloading or obtaining the Software from Licensor, Licensee shall pay to Licensor a one-time license acquisition fee (the "License Acquisition Fee") determined by Licensor’s published price in effect on the Effective Date.

(b) Neither the License Acquisition Fee, or any other fees or payments due to the Licensor hereunder includes any federal, state, local or other taxes that may be due thereon or in connection therewith. In addition to the fees due to Licensor under this Agreement, and even if Licensee shall provide a tax exemption number or affidavit of exemption, Licensee shall be solely responsible for paying all applicable taxes, including, without limitation, sales, use, property, excise, value added and gross receipts taxes levied on this Agreement or the sale of the Software, except for taxes based solely on Licensor’s net income. Licensee shall promptly pay any and all such taxes that may be due or owing. Without limiting the foregoing, in the event Licensor is legally compelled to pay any such taxes, Licensee shall reimburse Licensor in full for all amounts so paid within ten (10) days of receipt of an invoice therefor.

(c) All past due amounts for any payments due under this Agreement shall bear interest of one and one-half percent (1 1/2%), or the highest rate permitted by law, if less, per month from the due date through the date on which such amounts are paid in full.

6. SUPPORT SERVICES. Within thirty (30) days from the date the Software is downloaded or otherwise loaded into temporary memory (RAM) or installed into the permanent memory of a computer (such as a hard disk, CD-ROM or other storage device), Licensor will provide email or telephone support to assist Licensee in installation and initiation of the Software at no additional cost. Additional telephone and email support and maintenance shall be invoiced to Licensee at Licensor’s then published hourly rates, and Licensee hereby agrees to pay Licensor within fifteen (15) days after receipt of any such invoice. Licensor may at its sole discretion offer hours of technical support packages as volume purchase incentives as part of custom pricing agreements for volume purchasers of the Software. The foregoing notwithstanding, at any time following the expiration of five (5) years from the Effective Date, Licensor may notify Licensee of the "retirement" of the Software, following which all subsequent requests for support or maintenance shall be of no force or effect and Licensor shall no longer provide any support services.

7. CONCURRENT USERS. This Agreement allows for only limited concurrent use in accordance with the following restrictions. If the Software is permanently installed on the hard disk or other storage device of a computer (other than a network server or service) and one person uses such computer more than 80% of the time, then such person may also use a single copy of the Software on a portable (lap top) computer assigned to such person, provided that only such person may use the Software and the Software may only be in use on only one computer at any given time. The Software may be used by multiple persons only if a single copy of the Software is used on only one computer and only one person is using the software at any given time. Use of the Software by more than the authorized number of concurrent users shall constitute use beyond the scope of the License granted and shall be in violation of this Agreement. Upon the written request from the Licensee, the Licensor may grant an exception to the standard single CPU license to allow a specific individual user to install the Software on multiple machines when said machines are isolated for security reasons, such as but not limited to various levels of National Security Information. Under this exception, the Licensee agrees that only a single individual will use the Software, and that only one copy of the Software will be used at a time. Licensee hereby consents to any and all activity of Licensor, including potential codes and checks within the Software, to monitor whether use of the Software is within the scope of the License granted under this Agreement, and Licensee agrees not to attempt to manipulate or otherwise attempt to hinder or alter the operation of any such codes and checks, and agrees that any such attempt exceeds authorized access to the Software within the meaning of the Computer Fraud and Abuse Act (18 U.S.C. § 1030, et seq.). In the event that any codes or checks fail to prevent access to or use of the Software that exceeds the license scope, no implication may be drawn that such access or use constitutes authorized access or use or is licensed under this Agreement.

8. TITLE. This Agreement is only a license of the Software, and is not a transfer or agreement to transfer by Licensor or other entity of any right, title or interest in or to the Software or the media containing the software, or any other software, documentation, or Confidential Information of Licensor. Licensor shall have sole and exclusive ownership of all right, title and interest in and to the Software, media, documentations and Confidential Information as well as all additions or modifications thereto (whether or not authorized) and all media and documentation relating to such additions or modifications, and all intellectual property rights associated therewith (including, without limitation, rights to copyrights, trade secrets, or know-how). Licensee shall keep the Software, media and documentation free and clear of all liens, claims and encumbrances of any kind.

9. LIMITED WARRANTIES.

(a) Licensor warrants that the Software as provided and when used in compliance with and within the scope of the License granted herein shall perform substantially in accordance with the operational functional specifications, as described in the documentation relating to the Software provided by Licensor to Licensee or as described on Licensor’s website as of the Effective Date, for a period of ninety (90) days following the downloading or other delivery of the Software. In the event a defect in the Software arises during such ninety (90) day period, and provided that Licensor receives written notice of such defect with a copy of Licensee’s receipt confirming payment of the License Acquisition Fee within ten (10) days following its initial observance, Licensor shall correct such defect at no additional cost to Licensee, or, if the defect cannot be cured, Licensor shall refund the amount of the License Acquisition Fee actually paid. The foregoing is Licensee’s sole and exclusive remedy for breach of the limited warranty set forth herein. This limited warranty is conditioned upon: (i) Licensee’s full compliance with the terms and conditions of this Agreement; (ii) Licensee’s proper use of the Software; (iii) the absence of any additions or modifications, or attempted additions or modifications, to the Software; (iv) the absence of any component or system problems not caused by the Software; and (v) the absence of any intentional or negligent act or other cause attributable to Licensee which affects the operability or serviceability of the Software. Further, Licensee acknowledges and agrees that Licensee’s use of the Software other than in strict compliance with the terms of this Agreement may affect or alter the Software’s performance or the results of the Software, and that Licensee’s use and any reliance upon the Software is at Licensee’s own risk, and that no warranties are provided except as expressly set forth herein.

(b) Licensor warrants that the Software as provided and when used in compliance with and within the scope of the License granted does not infringe upon or violate any United States trademark, trade secret, or copyright of any third party. Notwithstanding the foregoing, Licensor shall have no liability for any infringement based upon (i) Licensee’s manner of use of the Software, (ii) Licensee’s failure to implement any Mandatory Upgrades or updates or New Versions of the Software provided at no additional cost by Licensor if such implementation would have terminated or avoided such infringement; (iii) additions or modifications, or attempted additions or modifications to the Software other than those made by Licensor; and (iv) the combination or incorporation of the Software with other components, devices or software. In the event of a claim of infringement, Licensor may, at its option, either secure for Licensee the right to continue to use the Software, or replace or modify the Software to avert infringement. The foregoing is Licensee’s sole and exclusive remedy for breach of the limited warranty set forth in this Section 9(b).

(c) Licensee warrants that it has full title, right, and ownership to, and the full right to authorize all activity with, all of Licensee’s data, along with the data structures and files in which the data resides, that Licensee provides to Licensor, or that are entered or keyed into the Software. Licensee further represents and warrants to Licensor that Licensee is fully licensed to use all software and hardware in connection with which the Software will operate, coordinate, interface, link, derive data or other information, or otherwise communicate or interact; and that Licensee has the full right and authority to effectively authorize and consent to such operation, coordination, interfacing, linking, data derivation, information derivation, and communication. Licensee shall follow proper back-up procedures for any uses of the Software and for all data, to protect against loss or error resulting from use of the Software.

10. DISCLAIMER OF ALL OTHER WARRANTIES. LICENSEE ACKNOWLEDGES AND AGREES THAT, WITH THE EXCEPTION OF THE LIMITED WARRANTIES SET FORTH HEREIN, LICENSOR HAS NOT MADE AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EITHER ORAL OR WRITTEN, EITHER EXPRESS OR IMPLIED, CONCERNING THE SOFTWARE TO BE LICENSED HEREUNDER OR THE SERVICES TO BE PROVIDED HEREUNDER, AND TO THE FULL EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES CONCERNING SUCH SOFTWARE AND SERVICES, BOTH EXPRESS AND IMPLIED, ORAL AND WRITTEN, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, ACCURACY OF DATA, SYSTEM INTEGRATION, AND ALL WARRANTIES RELATING TO RESULTS TO BE DERIVED FROM THE USE OF SUCH SOFTWARE OR SERVICES OR OTHER MATERIALS PROVIDED IN CONNECTION WITH THIS AGREEMENT. LICENSOR DOES NOT REPRESENT OR WARRANT THAT SOFTWARE OR SERVICES ARE SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, OR OTHER PROGRAM LIMITATIONS, OR ABLE TO PROCESS, LOCATE, REVEAL OR REMOVE ALL HIDDEN DATA. LICENSEE ACKNOWLEDGES THAT IT IS A SOPHISTICATED PARTY TO THIS AGREEMENT AND RECOGNIZES AND AGREES THAT THIS PROVISION IS AN INTEGRAL PART OF LICENSOR’S PRICING AND AN IMPORTANT FACTOR IN ITS WILLINGNESS TO GRANT THE LICENSE HEREUNDER AND PERFORM SERVICES HEREUNDER.

11. LIMITATION OF LIABILITY. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OR DESTRUCTION OF DATA, BUSINESS INTERUPTION, COSTS OF COVER, LOSS OF USE, LOSS OF ANTICIPATED REVENUES OR PROFITS, OR DAMAGES RESULTING FROM OR RELATING TO CLAIMS BROUGHT AGAINST LICENSEE BY THIRD PARTIES, REGARDLESS OF WHETHER LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND THE LICENSEE CANNOT CLAIM, DEMAND OR SEEK RECOVERY FROM LICENSOR OR ITS REPRESENTATIVES FOR ANY OF THE FOREGOING LOSSES OR DAMAGES AND LICENSOR WILL NOT INDEMNIFY THE LICENSEE FOR ANY SUCH CLAIMS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR DISCLAIMS ANY PRODUCT LIABILITY AS A CONSEQUENCE OF LOSS OR DAMAGE TO PROPERTY WHICH, IN VIEW OF ITS NATURE, IS NORMALLY INTENDED FOR COMMERCIAL USE. IN NO EVENT SHALL LICENSOR'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH OR RELATING TO THE SOFTWARE OR THIS AGREEMENT EXCEED THE AMOUNT OF THE LICENSE ACQUISITION FEE ACTUALLY PAID BY LICENSEE TO LICENSOR HEREUNDER. THESE LIMITATIONS SHALL APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE. NO CLAIM ARISING IN CONNECTION WITH THE SOFTWARE OR THIS AGREEMENT MAY BE BROUGHT AGAINST LICENSOR MORE THAN ONE (1) YEAR AFTER IT ACCRUES.

12. EXPORT RESTRICTIONS. Licensee acknowledges that the Software may be subject to U.S. export restrictions. Licensee agrees to comply with all applicable national and international laws that may apply to the Software, as well as any end-use, end-user, and destination restrictions regarding export restrictions of the jurisdiction in which the Software is used or to or from which the Software is exported.

13. U.S. GOVERNMENT RESTRICTED RIGHTS NOTICE. Portions of the Software incorporate or may be based upon work supported by the National Science Foundation under the Small Business Innovation Research (SBIR) - Phase I Grant Award No. DMI-0232955. Any opinions, findings, and conclusions or recommendations expressed in this Agreement or in any documentation or other materials provided by Licensor are those of Licensor and do not necessarily reflect the views of the National Science Foundation. If the Licensee is a unit or an agency of the United States Government, the terms of the Small Business Innovation Research (SBIR) - Phase I Grant General conditions may apply (http://www.nsf.gov/pubs/1998/sbiri98/sbiri98.doc). Further, the Software (i) is trade secret of Licensor for all purposes of the Freedom of Information Act; (ii) is a commercial item and thus, pursuant to Section 12.212 of the Federal Acquisition Regulations (FAR), the Government's use, duplication or disclosure of the Software may be subject to the restrictions set forth in this Agreement; (iii) is in all respects proprietary data of Licensor and all rights are reserved under the copyright laws of the United States. In addition, the Software is commercial computer software (and commercial computer software documentation), and pursuant to DFAR § 227.7202, use, duplication or disclosure of the Software is subject to the restrictions set forth in this Agreement. In the event any technical data are not covered by these provisions, it shall be deemed "technical data - commercial items" pursuant to DFAR § 252.227-7015(a). Any use, modification, reproduction, release, performing displaying, or disclosing of such technical data may be governed by the terms of the Small Business Innovation Research (SBIR) - Phase I Grant General Conditions or DFAR § 252.227-7015(b), as applicable.

14. FORCE MAJEURE. Neither Licensor nor Licensee shall be liable to the other party for any delay, failure or inability to perform its obligations (except the obligation to make payment) under this Agreement due to any cause beyond its reasonable control, including, but not limited to, utility failures, equipment breakdowns, fires, storms, accidents, acts of God, acts of war, acts of terrorism, or any act or omission of the other party or its employees, contractors or agents.

15. INDEPENDENT CONTRACTOR. For all purposes relating to this Agreement, Licensor shall be deemed an independent contractor of Licensee, and not a partner, joint venturer, agent, or employee of Licensee. Neither Licensor nor Licensee shall have the power or authority to bind the other party to any contract or obligation.

16. PUBLICITY. Licensee hereby consents to Licensor referring to Licensee by name in any advertising and promotional materials of Licensor.

17. AUTHORIZATION. Each of Licensor and Licensee represent that the person executing this Agreement on its behalf is fully authorized to do so, and that this Agreement constitutes a valid and binding obligation of such party fully enforceable in accordance with its terms.

18. NOTICES. All notices and other communications required hereunder shall be in writing and delivered by personal delivery, facsimile or certified mail, postage prepaid, return receipt requested. Any such notice shall be deemed to have been given on the date it is received by the addressee during regular office hours at its principal address set forth in this Agreement or at such other address as that party may designate for notices in accordance with the terms of this Section 18. Licensee agrees to provide a "Notification Address" to Licensor and any and all notices sent to such address shall be deemed to be sufficient and effective notice for all purposes. Licensee agrees to provide Licensor with notice, in compliance with this Section 18, of any change to Licensee’s Notification Address.

19. ASSIGNMENT. Licensee may not assign or otherwise transfer, by operation of law or otherwise, this Agreement or any of its rights, interests, benefits, or obligations hereunder, without the prior written consent of Licensor. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.

20. GOVERNING LAW; INTERPRETATION. This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to conflict of law principles. Licensee hereby submits to the exclusive jurisdiction of the state and federal courts located in Orange County, California for the resolution of any dispute arising out of or in connection with this Agreement. Section headings have been inserted for convenience only and shall not be considered in interpreting this Agreement. If any provision of this Agreement is found to be invalid or unenforceable, it shall be enforced to the maximum extent permissible without affecting the validity or enforceability of the remaining provisions hereof.

21. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior representations, warranties, negotiations, understandings and agreements, whether written or oral, between the parties with respect to that subject matter.

22. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A facsimile copy of a counterpart shall have the same effect as an original.

23. MODIFICATION. All modifications to this Agreement must be agreed to and signed by a duly authorized representative of each party to this Agreement. Without limiting the foregoing, no term or condition contained in any purchase order or other sales document of Licensee that is inconsistent with this Agreement shall be binding upon Licensor, regardless of whether such document has already been or is hereafter acknowledged by Licensor.