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MUTUALINK SOFTWARE END-USER TRIAL LICENSE AGREEMENT

(Version 2017.1)

This is the Mutualink Software End-user License Agreement ("License Agreement").  YOU MAY NOT USE THE MUTUALINK TRIAL SOFTWARE AND ASSCIATED SERVICES UNLESS YOU HAVE AGREED TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT AND YOU COMPLY WITH THEM AT ALL TIMES.  THIS IS A NONEXCLUSIVE, REVOCABLE AT WILL LICENSE AGREEMENT. 

  1. INTRODUCTION

    1.1           The Mutualink TRIAL SOFTWARE AND SERVICE is licensed to you subject to the terms and conditions of this License Agreement.  This License Agreement forms a legally binding contract between you and Mutualink, Inc. in relation to your use of the Mutualink SDK.  For purposes of this License Agreement, the following terms have the meanings set forth below:

    1.1.1        "Mutualink" means Mutualink, Inc., a Connecticut corporation with a principal place of business at 1269 South Broad Street, Wallingford, Connecticut, 06492, United States.

    1.1.2        "You", "Your", and "Yours" and similar terms mean and refer to the entity or person identified as the licensee party in the information submitted electronically to the Company in connection with obtaining or applying for permission to use the Mutualink SDK, or as otherwise identified in the Licensee Information and Signature Block provided at the end of this License Agreement.

    1.1.3        "Mutualink Trial Software and Service" or "Software" means Mutualink's EDGE software, as modified and changed from time to time, which may be accessed by You through an internet Browser session using login and authentication credentials that are assigned to You by Mutualink, and includes: (i) executable functions, commands and protocols that enable the communication and exchange data, among Mutualink Authorized Endpoints (as defined below) or other Mutualink software, and (ii) any software source code,  modules, code snippets, libraries, objects, controls, development environments, test harnesses and scripts, debugging routines, simulation or test response environments, security credentials or security credential delivery or validation services, certification processes, development, training or other technical documentation developed or furnished by Mutualink to Licensee.

  2. ACCEPTING THIS LICENSE AGREEMENT

    2.1           In order to use the Software, you must first agree to this License Agreement. You may not use the Software if you do not accept this License Agreement.

    2.2           You can accept this License Agreement by:

    (A)  Electronically clicking to accept or agree to this License Agreement, where this option is made available to you; or

    (B)  Signing and returning copy of this License Agreement to Mutualink; or

    (C)  Notwithstanding the above, by using the Software, which use constitutes your acceptance of the License Agreement from that moment forward.

    2.3           You may not use the Software and may not accept the License Agreement if you are a person barred from receiving the Software under the laws of the United States or other countries including the country in which you are resident or from which you use the SDK. Moreover, you may not transfer the Software or share it with any person barred from legally accessing or possessing the Software under the laws of the United States.

    2.4           If you are agreeing to be bound by this License Agreement on behalf of your employer or other entity, you represent and warrant that you have full legal authority to bind your employer or such entity to this License Agreement. If you do not have the requisite authority, you may not accept the License Agreement or use the Software on behalf of your employer or other entity.

  3. LICENSE, WARRANTY AND RELATED TERMS

    3.1           License.  Subject to the terms of this License Agreement, Mutualink grants you a limited, revocable, worldwide, royalty-free, non- assignable, non-exclusive license to use the Software until termination as provided in Section 5 of this Agreement for the sole purpose of evaluating the Software for your own internal agency or business operational use in connection with other Authorized Mutualink Endpoints owned or licensed by you or made available to you via the Software over an authorized network session maintained by Mutualink.

    For purposes of the above, the following capitalized terms have the meaning ascribed to them below:

    "Authorized Mutualink Endpoint" is a computing device authorized by Mutualink which is licensed to operate Mutualink end-user Software under a validly issued license issued by Mutualink in effect.

    "Mutualink End-User" means any entity or person that has validly purchased, leased or licensed a Mutualink Endpoint which has licensed Mutualink End-user Software in effect for such Mutualink Endpoint.

    "Mutualink End-User Software" means the software applications licensed and/or sublicensed by Mutualink to operate on a computing device of end-users for its own internal business or governmental purpose, and instances of application software or application services which may be provided directly by Mutualink.

    3.2           No Warranty.   YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE SOFTARE IS PROVIDED  ON  AN "AS IS" AND "WHERE IS" BASIS "WITH ALL FAULTS AND DEFECTS, ALL EXPRESS AND IMPLIED WARRANTIES OF WHATSOEVER NATURE OR KIND BEING HEREBY DISCLAIMED, INCLUDING, BUT NOT LIMITED TO, ALL EXPRESS OR IMPLIED WARRANTIES OF FITNESS OR SUITABILITY FOR A PARTICULAR USE, ABSENCE OR FREEDOM FROM DEFECTS, ERRORS OR OMISSIONS, UNINTERRUPTED OPERATION OR USE, MERCHANTABILITY, ADEQUACY OR SUFFICIENCY OF SECURITY, AND NON-INFRINGEMENT. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR OR ANY OTHER PARTY'S COMPUTER SYSTEM OR OTHER DEVICE, NETWORK SERVICE DISRUPTION OR IMPAIRMENT, OR LOSS OF DATA THAT RESULTS FROM SUCH USE.

    3.3           Ownership. You agree that Mutualink and third parties as applicable own all legal right, title and interest in and to the Software, including any Intellectual Property Rights embodied or subsisting therein.

    "Intellectual Property Rights" means any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all other proprietary rights, including, but not limited to, moral rights and rights in and to all derivative works . Mutualink reserves all rights not expressly granted to you, and no implied rights are granted to you.

    3.4           Prohibited Uses.  Without limiting the restrictions on permitted use, the Software may not be used for (i) any operational use other than for evaluation purposes in controlled, non-emergency circumstances, or (ii) any unlawful purpose.

    3.5           No Reverse Engineering.  You may not copy, modify, adapt, redistribute, decompile, reverse engineer, disassemble, or create derivative works from, the Software.  Without limiting any other provision restricting licensed use, you may not evaluate the Software to assist another party in undertaking a competitive product evaluation or inspection of the Software for any purpose including its reproduction, emulation or third part product design improvements, whether or not you derive a direct or indirect financial benefit.

    3.6           Publication and Display of Images.  Mutualink reserves to itself all copyrights in and to the Software.  Without limiting the foregoing, you may not copy, reproduce or make image captures of the Software other than for your internal use for user training and documentation purposes.  Further, and without limiting the foregoing, you are prohibited from publishing, posting or displaying any images of the graphical user interface or other tangible representations of the Software or descriptions of the Software or its features, operations, characteristics or performance on any web site, web forum, social media site or other internet accessible site for public display, or assisting other parties in doing the same, without the prior written consent of Mutualink.

    3.7           Trademarks.  Nothing in this License Agreement gives you a right to use any of Mutualink's trade names, trademarks, service marks, logos, domain names, or other distinctive brand features ("Mutualink Marks"), and you also agree that you will not use or adapt any name or symbol that uses Mutualink Marks or is similar to Mutualink Marks.

    3.8.    Feedback.  You agree that in consideration for the License granted that any and all feedback, suggestions, opinions expressed regarding Mutualink products, their application for productive and or use, and any improvements thereto may be freely used by Mutualink and no royalty or any other form of compensation or obligation is will be due and owing to you or any other party.  Any improvements made by Mutualink will be exclusively owned by Mutualink.

  4. YOUR CREDENTIALS. You agree that you are responsible for maintaining the confidentiality of your credentials that may be issued to you by Mutualink. YOU AGREE THAT YOU WILL NOT SHARE OR OTHERWISE DISCLOSE YOUR CREDENTIALS TO ANY OTHER PERSON OR ENTITY OTHER THAN PERSONS THAT ARE PART OF YOUR ORGANIZATION THAT HAVE A NEED TO KNOW.
  5. TERMINATION. Your License terminates upon the expiration of the credentials that are assigned to you by Mutualink.  Mutualink may choose, in its sole discretion, to terminate your License at any time for any or no reason whatsoever, with or without notice.  When your License comes to an end, all of the legal rights, obligations and liabilities that you and Mutualink have benefited from, been subject to (or which have accrued over time while this License Agreement has been in force) or which are identified as to continue indefinitely, shall be unaffected by termination, and the provisions of paragraph 14.7 shall continue to apply to such rights, obligations and liabilities indefinitely.
  6. LIMITATION OF LIABILITY. YOU EXPRESSLY UNDERSTAND AND AGREE THAT MUTUALINK, ITS SUBSIDIARIES AND AFFILIATES, AND THE RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND ADVISORS OF SUCH PARTIES (collectively referred to as "Mutualink Parties"), AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU OR ANY PARTY CLAIMING BY OR THROUGH YOU, INCLUDING , BUT NOT LIMITED TO, ANY LOSS OF DATA, BREACH OF SECURITY, UNLAWFUL USE OR RECORDING OF DATA, BREACH OR LOSS OF PRIVACY, LIBEL OR SLANDER, UNLAWFUL ARREST OR DETAINMENT, UNLAWFUL SURVEILLANCE OR SEARCH OR SEIZURE, TRESPASS, OR MISTAKE OR FAILURE RESULTING OR CONTRIBUTING TO DAMAGE OR DESTRUCTION TO PROPERTY OR INJURY OR DEATH TO PERSONS, WHETHER OR NOT MUTUALINK OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
  7. INDEMNIFICATION. To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless Mutualink Parties from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys' fees) arising out of or accruing from your use of the Software.
  8. GENERAL LEGAL TERMS

    8.1           Entire Agreement. This License Agreement constitutes the entire legal agreement between you and Mutualink and it shall govern your use of the Software, and completely replaces any prior agreements between you and Mutualink.

    8.2           No Waiver.  You agree that if Mutualink does not exercise or enforce any legal right or remedy which is contained in this License Agreement (or which Mutualink has the benefit of under any applicable law), this will not be taken to be a formal waiver of Mutualink's rights and that those rights or remedies will still be available to Mutualink.

    8.3           Invalidity. If any court of law, having the jurisdiction to decide on the matter, rules that any provision of this License Agreement is invalid, then that provision shall be reinterpreted by a court to have a meaning and effect which most closely preserves the intended effect of such invalidated provision and the remaining provisions of this License Agreement will continue to be valid and enforceable.

    8.4           Beneficial Parties.  You acknowledge and agree that each member of the group of companies of which Mutualink is the parent shall be third party beneficiaries to this License Agreement and that such other companies shall be entitled to directly enforce, and rely upon, any provision of this License Agreement that confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to this License Agreement.

    8.5           EXPORT RESTRICTIONS. THE SOFTWARE IS SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS. YOU MUST COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO THE SDK. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, END USERS AND END USE.

    8.6           Assignment. The rights granted in this License Agreement may not be assigned or transferred without the express written consent of Mutualink, which consent may be withheld in its sole discretion.  You are not permitted to delegate their responsibilities or obligations under this License Agreement without the prior written approval of Mutualink.

    8.7           Governing Law. This License Agreement, and your relationship with Mutualink under this License Agreement, shall be governed by the laws of the State of Connecticut without regard to its conflict of law provisions. You and Mutualink agree to submit to the exclusive jurisdiction of federal and state courts located within the State of Connecticut ("Designated Courts") to adjudicate any legal matter or dispute arising from or relating in any way to this License Agreement. Notwithstanding the foregoing, you agree that Mutualink shall be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction without the need to post any bond as a condition to obtaining any form of equitable relief.

    8.8           Amendments.  The terms of this License Agreement may not be modified or amended except in a writing executed and delivered by Mutualink.

    8.9.          Headings and Captions.  Headings and captions are convenience purposes only, and shall have no substantive effect or meaning with respect to the content of the provisions that follow.

  9. NOTICE TO GOVERNMENT USERS

    9.1  The Software, including any third party software or components, sample applications, and all documentation relating thereto qualify as "commercial items" as defined at Federal Acquisition Regulations ("FAR") Subpart 2.101, and consist of "commercial computer software" and "commercial computer software documentation" as such terms are used in FAR Subpart 12.212, and the Defense Federal Acquisition Regulation Supplement (DFARS) Clause 252.227-7013 ("RIGHTS IN TECHNICAL DATA--NONCOMMERCIAL ITEMS").  Pursuant to FAR Subparts 12.212 and 12.211 and DFARS Subpart 227.7202 ("COMMERCIAL COMPUTER SOFTWARE AND COMMERCIAL COMPUTER SOFTWARE DOCUMENTATION"), and notwithstanding any other FAR, DFARS or other contractual clause to the contrary in any agreement, all United States Government ("Government") end users will acquire a license to use the Software as set forth and subject to the terms and conditions of this License Agreement.    Use of the Software constitutes agreement by the Government that the SDK is "commercial computer software" and "commercial computer software documentation," and constitutes acceptance of the rights and restrictions of this License Agreement.

    9.2           Unless written notice is specifically provided otherwise to Government end user, this Software is commercial computer software developed exclusively at private expense. Use, duplication, and disclosure by civilian agencies of the Government shall be in accordance with FAR 52.227-19 (c). Use, duplication and disclosure by Department of Defense (DOD) agencies are subject solely to the terms of the EULA as provided under DFARS 227.7202.

  10. NOTICE TO NON-US LICENSEES/NON-APPLICABILITY OF CISG/UTICA

    10.1  If you are a non-United States citizen or person or entity or domiciled in any jurisdiction other than the United States, you agree that any final judgments or non-appealable orders issued by a Designated Court, to the maximum extent permitted under the laws of the foreign jurisdictions where you or your assets are located or under which You assert jurisdiction ("Foreign Jurisdictions"), shall be enforceable against You according to the terms of the judgment or order of the Designated Court upon an application for enforcement made therefor.  You agree to waive, to the maximum extent permitted, any rights to a contested hearing, de-novo review, appeal, proceeding to show cause, or any other further adjudicatory proceeding before any court, tribunal or other adjudicative body within such Foreign Jurisdiction.  YOU ALSO AGREE SERVICE OF PROCESS MADE IN ACCORDANCE WITH THE LAWS OF STATE OF CONNECTICUT ARE SUFFICIENT NOTICE UNDER THE LAWS OF ALL FOREIGN JURISDICTIONS TO WHICH YOU MAY SEEK TO AVAIL YOURSELF  AND YOU SPECIFICALLY WAIVE ALL RIGHTS TO ANY MEANS OR METHOD OF NOTICE OR PROCESS REQUIRED UNDER ANY SUCH FOREIGN JURISDICTION. YOU ACKNOWLEDGE, AGREE AND CONFIRM WITHOUT RESERVATION OF ANY KIND THAT YOU IRREVOCABLY SUBMIT TO THE PERSONAL AND SUBJECT MATTER JURISDICTION OF THE DESIGNATED COURTS AND IRREVOCABLY WAIVE ANY JURISDICTIONAL PRIVILEGES RESERVED TO CITIZENS OF THE FOREIGN JURISDICTION TO WHICH YOU BELONG OR YOU ASSETS ARE LOCATED.  It is further agreed that any award resulting from Arbitration as provided above or Confirmed Award (as described below) shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.  Mutualink may submit a final judgment issued by a Designated Court to an arbitration body for review and confirmation of its validity and request that such arbitration body issue a conforming award on such judgment ("Confirmed Award").

    10.2   The parties specifically direct and agree that CISG (UN-Convention on Contracts for the International Sales of Goods) and the Uniform Computer Information Transactions Act (UCITA) are specifically excluded and neither shall apply to this Agreement or to the performance the terms of this License.

  11. Notices. All notices sent by Mutualink to you by email shall be deemed delivered when sent to the address you have given to Mutualink.  Mutualink may also send notice by means of US Mail Postage Prepaid to the address you have furnished to Mutualink and will be deemed delivered when deposited in the US Mail.  You may send notice to Mutualink by means if US Mail, postage pre-paid, at the following address.  Such notice will be deemed effective when actually delivered to and received by Mutualink at the address below.

 

Mutualink, Inc.
1269 South Broad Street
Wallingford, Connecticut 06492
Attn: Legal Department

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