EULA

End-User License Agreement

QUEBIT CONSULTING, LLC (QUEBIT)

THIS SOFTWARE LICENSE AGREEMENT (THE “AGREEMENT”) GOVERNS THE INSTALLATION AND USE BY PURCHASERS (THE "CUSTOMER") AND USERS OF THE QUEBIT SOFTWARE PRODUCT SUITE (THE "SOFTWARE") SOLD BY QUEBIT CONSULTING LLC ("QUEBIT"). THE CUSTOMER AND EACH USER ACKNOWLEDGES THAT THIS IS A LEGAL AGREEMENT TO WHICH THE CUSTOMER AND SUCH USER IS BOUND WHEN THE CUSTOMER OR USER DOWNLOADS, COPIES, INSTALLS OR USES THE SOFTWARE. YOU SHOULD IMMEDIATELY CEASE USING THE SOFTWARE, AND SHOULD DELETE THE SOFTWARE FROM THE EQUIPMENT YOU ARE USING, IF YOU DO NOT WISH TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

TERMS OF USE

LICENSE.  QueBIT grants to the Customer and its affiliates, subsidiaries, and parent companies a nonexclusive and nontransferable license to install and use each of the Software parts, as specified in the applicable sales order, on one production instance and on a reasonable amount of non-production instances for as many named users as specified in the applicable sales order. The Customer may make one (1) archival copy of each Software part specified in the applicable sales order. The Customer may also install each software part in a Disaster Recovery Environment, for the purposes of disaster recovery, providing that the use of each software part is otherwise in accordance with the license granted herein. The Licensee shall not copy the software, in whole or in part; modify the software reverse compile or reverse assemble all or any portion of the software; or rent, lease, distribute sell or create derivative works of the software. The Customer grants to QueBIT or its independent accountants the right to determine that the customer is in compliance with this license agreement, and will provide all reasonable support to enable this determination. In the event that it is determined that the Customer is not in compliance with license agreement, the Customer shall promptly pay to QueBIT the appropriate additional licensee fees, plus any reasonably determined and mutually agreed upon penalties for non-compliance, to bring the Customer in compliance with license agreement. QueBIT shall not publish or otherwise disclose to any third party the results of such license determinations, the fact that Customer was obligated to pay any such amount or the amount of any such payment.

OWNERSHIP OF INTELLECTUAL PROPERTY. Licensee agrees that the Software and its components constitute trade secrets and/or copyrighted material of QueBIT. Licensee agrees not to disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of QueBIT. Licensee agrees to implement reasonable security measures to protect such trade secrets and copyrighted material. Title to the Software and any accompanying documentation shall remain solely with QueBIT.

LIMITED WARRANTY.  QueBIT warrants that

i.                     For a period of ninety (90) days from the date of purchase from QueBIT or its agents the Software will substantially conform to its user documentation and specifications contained in any work order under the master services agreement related to the Software;

ii.                   The Software is and will at all times remain compatible with third-party software purchased by the Customer from QueBIT;

iii.                 The Software is free from any program, routine, device, or other undisclosed feature or hidden file, not referenced in the specifications, including without limitation, a time bomb, virus, software lock, Trojan horse, drop dead device, worm, malicious logic or trap door, that is designed to delete, disable, deactivate, interfere with or otherwise harm the Software or Customer’s other software, hardware, or data; and

iv.                 The Software does not and will not infringe upon the patent, copyright, database right, trademark rights or other rights of any third party or misappropriate the trade secret or other intellectual property rights of any third party. Except for the foregoing, the Software is provided AS IS. This limited warranty extends only to the Customer and not to any individual user. QueBIT will, at its option, repair, replace, or refund the nonconforming Software. This warranty does not apply if the Software

a.       has been altered, except by QueBIT,

b.       has not been installed, operated, repaired, or maintained in accordance with instructions supplied by QueBIT,

c.       has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident,

d.       is used in ultrahazardous activities, or

e.       if the Software is made available by QueBIT for testing or demonstration purposes for which QueBIT does not receive a license fee. Under the foregoing circumstances, the Software is provided AS IS without any warranty whatsoever.

WARRANTY DISCLAIMER. Except as specified in this warranty, all express or implied conditions, representations, and warranties including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or arising from a course of dealing, usage, or trade practice, are hereby excluded to the extent allowed by applicable law. In no event will either party be liable for any lost revenue, profit, or data, or for special, indirect, consequential, incidental, or punitive damages, however caused and regardless of the theory of liability arising out of the use of or inability to use the software, even if such party or its agents have been advised of the possibility of such damages. Some states do not allow limitation or exclusion of liability for consequential or incidental damages. In no event shall either party's liability, whether in contract, tort (including negligence), or otherwise, exceed the price paid by the customer for the software. The foregoing limitations shall apply even if the warranty herein fails of its essential purpose. None of the limitations set forth in this paragraph shall apply to or limit

i.                     QueBIT’s indemnification obligations under section 5 below,

ii.                   damages arising from the misuse, misappropriation, or inappropriate disclosure of customer’s confidential information, or

iii.                 damages arising from the willful misconduct or gross negligence of QueBIT.

INDEMNIFICATION.  QueBIT shall indemnify, defend, and hold harmless the Licensee (and its officers, directors, employees, and agents) from and against any losses, costs (including attorney’s fees), damages, and liabilities arising out of or related to claims or allegations that the Software or the use thereof infringes a third party’s intellectual property rights.

TERMINATION.  This license is effective until terminated. Licensee may terminate this license at any time by destroying all copies of the Software. This license will terminate immediately without notice from QueBIT if the Licensee fails to comply with any provision of this license. Upon termination, the Licensee must destroy all copies of the Software. Any unearned license fees already paid by Customer will be returned to Customer upon termination.

ASSIGNMENT.  The Customer may not assign this Agreement to its parent companies, subsidiaries, and affiliates, or to any successor in interest, without QueBIT's prior written consent. Any assignment by Customer shall require the prior written consent of QueBIT, which shall not be unreasonably withheld. Any assignment in violation of this Agreement shall be null and void.

GENERAL PROVISIONS.  This Agreement and all matters arising from or related to this Agreement (including its validity and interpretation), will be governed by and construed in accordance with the substantive laws in force in the State of New York. The courts of Westchester County, New York, and New York County, New York shall have exclusive jurisdiction over all disputes relating to this Agreement. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. This is the entire agreement between QueBIT and the Licensee relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software.

SOFTWARE MAINTENANCE AND TECHNICAL SUPPORT AGREEMENT

This software maintenance and technical support agreement (the “Agreement”) applies to all software maintenance and technical support of the QueBIT’s Software Product Suite (the "Software") sold by QueBIT Consulting LLC ("QueBIT") to the customer identified on the order agreement or invoice (the "customer").

TERM. This Agreement will be effective, and the Software support services (the "Services") will commence, upon the effective date of the first license that the Customer purchases from QueBIT, and will continue for the subscription period specified.

This Agreement may be renewed for an additional term by the Customer upon payment of the applicable fees for the renewal term. If payment for a renewal term is not received upon the expiration of the existing term, QueBIT reserves the right, at its option, to withhold service and request that software is uninstalled until payment is received or to immediately terminate this Agreement. Customer may terminate this Agreement at any time due to a material breach by QueBIT of this Agreement, any applicable software license agreement, and the Master Services Agreement or any Statement of Work there under. Any unearned support and maintenance fees already paid by Customer will be returned to Customer upon termination.  

SUPPORT AND MAINTENANCE SERVICES. QueBIT will provide the Customer with unlimited telephone and email technical Software support assistance. Phone (1-800-QUEBIT1) and email support (support@quebit.com) is available Monday through Friday, 9:00 am to 5:00 pm Eastern Standard Time - excluding weekends and observed U.S. Holidays. Support availability may occasionally vary from stated hours due to downtime for systems and server maintenance, company events, and circumstances beyond the control of QueBIT. QueBIT shall acknowledge the Customer’s request(s) for technical support

i.                     Within the target time frame for the priority level of such a problem, and

ii.                   In accordance with the acknowledgment and problem resolution times, as listed below.

In the event QueBIT reasonably foresees an inability to remedy the reported error within the target time frame applicable to its priority level, QueBIT will use reasonable commercial efforts to increase resources appropriately and shall continue its corrective efforts and,

i.                     In the case of high-priority problems, shall advise Customer at least every four (4) hours of the status of such efforts and the expected time such problem correction will be completed, and

ii.                   in the case of Medium priority problems, shall advise Customer at least every eight (8) hours of the status of such efforts and the expected time such problem correction will be completed.

ASSIGNING PRIORITY. QueBIT will work with Customer to assign the appropriate priority to all reported problems, which priority will be reasonably determined by QueBIT after consultation with Customer. The criteria for assigning a particular priority level are as follows:

Priority 1(High): Critical business impact. The licensee has a complete loss of service and work cannot reasonably continue, or the Licensee experiences real or perceived data loss or corruption, or an essential part of the QueBIT Software is unusable for the Licensee.

Priority 2 (Medium): Some business impact. The problem seriously affects the functionality of the QueBIT software, License operations, but can be circumvented so that most of the significant functionality of the QueBIT Software is available to the Licensee

Priority 3 (Low): Minimal business impact. Licensee can circumvent the problem and use the QueBIT Software with only slight inconvenience. The problem can be considered insignificant and has no significant effect on the usability of the QueBIT Software. This priority is also used for questions, comments, and requests.

Acknowledgment and Resolution Times. For all reported problems, QueBIT’s acknowledgment and problem resolution times will be as follows (the “Acknowledgement and Resolution Standards”)

 Application of Error Corrections to Licensed Software. By way of clarifying example, it is agreed and understood that, in consideration of the applicable fees, QueBIT's error corrections to the QueBIT Software shall interoperate with all components of the QueBIT Software and all other third-party software supplied by QueBIT to Customer in a manner that meets or exceeds applicable warranties under Section 4 of the QueBIT Software License Agreement.

DESIGNATED CONTACTS. The Customer shall appoint two (2) individuals within the Customer's organization who are knowledgeable in the operation of the Software to serve as primary contacts between the Customer and QueBIT and to receive support through QueBIT's telephone support center. All of the Customer's support inquiries should be initialized through these contacts. The Customer shall advise QueBIT in writing of any changes in such support contacts and agrees to substitute personnel of sufficient knowledge and skill. QueBIT shall not be required to accept calls or requests from anyone other than the designated contacts

RESTRICTIONS. Terms, conditions, support features, procedures, pricing, and support availability for future periods are subject to change at any time without notice and are available on QueBIT's website. QueBIT has no obligation to provide service or support until QueBIT has received full payment for the Services. The Customer will be provided support services only for the Software. Coverage is nontransferable and is valid for the Customer only. Resale or transfer of support plans is strictly prohibited and will be grounds for termination or nonrenewal of support. The Services shall not include the diagnosis and rectification of any fault arising from the improper use, operation or neglect of either the Software; the modification of the Software or its merger (in whole or in part) with any other software; the failure by the Customer to implement recommendations in respect of the solutions and faults previously advised by QueBIT; any repair, adjustment, alteration or modification of the Software by any person other than QueBIT without its prior written consent; any breach by the Customer of its obligations under this Agreement or the Software License Agreement; the Customer's failure to install and use in substitution for the previous release any new release of the Software within 90 days of receipt of the same; the use of the Software for a purpose for which it was not designed; or specialist advice on the application of the Software or specific engineering applications. QueBIT is not responsible for any lost or corrupted software or data. QueBIT strongly recommends that the Customer maintain a complete data backup and disaster recovery plan. QueBIT strongly recommends that the Customer maintain a complete data backup and disaster recovery plan.

LIMITED WARRANTY. QueBIT will make reasonable efforts to provide the Services, but QueBIT cannot guarantee that every question or problem raised by the Customer will be resolved. QueBIT does not warrant under this Agreement that the Customer's use of the Software will be uninterrupted or error-free. QueBIT makes no express or implied warranties with respect to the support, including but not limited to any warranty or condition with respect to the performance of any hardware or software used in conducting services, or any express or implied warranties or conditions concerning the results to be obtained from the support or the results of any recommendation QueBIT may make, including without limitation, any implied warranties or conditions, including, without limitation, any implied warranties concerning the performance, merchantability, suitability, non-infringement or fitness for a particular purpose of the services or of any system that may result from the implementation of any recommendation QueBIT may provide. Nothing in this paragraph shall be construed to limit, negate, or restrict the liability of QueBIT arising out of the software license agreement and/or sales order terms and conditions.

LIMITATION OF LIABILITY. QueBIT does not accept liability beyond the remedies set forth herein, including any liability for products not being available for use or for lost or corrupted data or software, or the provision of services and support. QueBIT will not be liable for lost profits, loss of business or other consequential, special, indirect or punitive damages, even if advised of the possibility of such damages, or for any claim by any third party. The Customer agrees that for any liability related to the services, QueBIT is not liable or responsible for any amount of damages above the aggregate dollar amount paid by the customer for the purchase of support under this agreement. Nothing in this paragraph shall be construed to limit, negate, or restrict the liability of QueBIT arising out of the software license agreement and/or sales order terms and conditions.

FORCE MAJEURE. QueBIT's failure or delay in performance of this Agreement to the extent that such failures are proximately caused by forces beyond the reasonable control of QueBIT occurring without the fault or negligence of QueBIT, including, but not limited to, fire, flood, war, strikes, acts of God, damage or destruction to network facilities, power failures or failure of QueBIT's suppliers, subcontractors, carriers and service providers, shall not be held to be a breach of this Agreement.

NONSOLICITATION. The Customer shall not hire or solicit for employment any QueBIT personnel during the term of this Agreement and for a period of one (1) year thereafter.

ASSIGNMENT. The Customer may not assign this Agreement to its parent companies, subsidiaries, and affiliates, or to any successor interest, without QueBIT's prior written consent. Any assignment by Customer shall require QueBIT's prior written consent, which shall not be unreasonably withheld. Any assignment in violation of this Agreement shall be null and void.

GENERAL PROVISIONS. This Agreement and all matters arising from or related to this Agreement (including its validity and interpretation), will be governed by and construed in accordance with the substantive laws in force in the State of New York. The courts of Westchester County, New York, and New York County, New York shall have exclusive jurisdiction over all disputes relating to this Agreement. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. This is the entire agreement between QueBIT and the Customer relating to the Services and it supersedes any prior representations, discussions, undertakings, communications, or advertising relating to the Services.

CONTACT INFORMATION

QueBIT Consulting, LLC, 49 Secor Road, Scarsdale, NY 10583, USA

+1-800-QUEBIT1

Visit us at www.quebit.com