This License Agreement (this “Agreement”) is entered into by and between Curl, Incorporated, a Delaware corporation, having its principal place of business at One Cambridge Center, Cambridge, MA 02142 (“Curl”) and the person or entity downloading, installing and/or using the software and any other materials included in this distribution (“Licensee”).

For and in consideration of the mutual promises herein contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties to this Agreement, intending to be legally bound, hereby agree as follows

1. DEFINITIONS. As used in this Agreement:

   1.1.

   “Affiliate” means with respect to either party, any Person that, directly or indirectly, is controlled by, controls or is under common control with such party. For purposes of this Agreement, "control" means, with respect to any Person, the direct or indirect ownership of more than fifty percent (50%) of the voting or income interest in such Person or the possession otherwise, directly or indirectly, of the power to direct the management or policies of such Person.

   1.2.	“Curl Customer” means any user of the Curl Platform for the purpose of developing, deploying and executing the Curl Customer Applications.

   1.3.	“Curl Customer Applications” means personal, commercial and business software applications developed, deployed and executed using one or more components of the Curl Platform.

   1.4.	“Curl End User” means any user of Curl Customer Applications.

   1.5.

   “Curl IDE Software” means (a) the Curl IDE software owned by Curl, its Affiliates and/or its or their respective licensors and licensed to Licensee hereunder in object code format; and (b) certain other software applications or code that may be licensed to Licensee hereunder in conjunction with the Curl IDE Software in Source Code and object code format.

   1.6.	“Curl Platform” means, individually and collectively, the Curl RTE Software, the Curl IDE Software and the Curl Pro/IDE Software

   1.7.	“Curl Pro/IDE Software” means the Curl IDE Software incorporating or embodying enhanced or additional functionality as described Curl’s published Documentation.

   1.8.	“Curl RTE Software” means the Curl RTE software owned by Curl, its Affiliates and/or its or their respective licensors and licensed to Licensee hereunder in object code format.

   1.9.

   “Derivative Work” means: (a) copyrightable or copyrighted material, a work which is based upon one or more pre-existing works, such as a revision, modification, translation, abridgement, condensation, expansion, collection, compilation, or any other form in which such pre-existing works may be recast, transformed, or adapted; (b) for patentable or patented materials, any adaptation, addition, improvement or combination; and (c) for material subject to trade secret protection, any new material, information, or data relating to and derived from such existing trade secret material, including new material which may be protectable by copyright, patent, or other proprietary rights. Each of the above will be considered a “Derivative Work” if in the absence of this Agreement or other authorization by the owner of the pre-existing work, preparation, copying, use, distribution, and/or display, would constitute an infringement of Curl’s, its Affiliates’ or their respective licensors’ Intellectual Property Rights in such pre-existing work.

   1.10.

   “Documentation” means the user guide(s) and other documentation, if any, delivered by Curl in paper or digital form to Licensee with the Curl Platform.

   1.11.

   “Evaluation Period” means a period of time beginning on the day Licensee obtains an Evaluation Version of any Curl Platform and ending sixty (60) days thereafter.

   1.12.

   “Evaluation Version” means a version of the Curl Platform, so identified, to be used only to review, demonstrate and evaluate the Curl Platform for the Evaluation Period.

   1.13.

   “Intellectual Property Rights” means all the worldwide intangible rights or interests evidenced by or embodied in (a) any idea, design, concept, method, process, technique, apparatus, invention, discovery, or improvement, including any patents, patent applications, trade secrets, and know-how; (b) any work of authorship, including any copyrights, industrial designs, registration or moral rights recognized by law; (c) any trademarks, trade names, trade dress and associated goodwill; and (d) any other proprietary technology or material in which similar rights exist.

   1.14.

   “Licensee” means, individually and collectively, Curl End User and Curl Customer.

   1.15.

   “Order Form” means Curl’s order form for the Package or any component of the Curl Platform.

   1.16.

   “Package” means the Curl Platform and Documentation licensed by Curl to Licensee under this Agreement.

   1.17.

   “Person” means any individual, corporation, association, partnership (general or limited), joint venture, trust, estate, limited liability company, limited liability partnership, unincorporated organization, government (or any agency or political subdivision thereof) or other legal entity or organization.

   1.18.

   “Source Code” means the human readable version of software and such documentation as shall be sufficient to allow a reasonably knowledgeable and experienced programmer to install, operate, maintain and support such software, including user manuals, guides, schematics, architecture documents and development logs.

   1.19.

   “Term” means the period commencing on the Effective Date (as defined below) and ending on the termination or expiration of this Agreement.

2. LICENSE grant. Different rights, obligations and restrictions apply with each type of software application and license type offered and provided by Curl in connection with the Curl Platform. Licensee’s right to install, use and deploy the Curl Platform is determined by the type of application selected by Licensee and the associated license grant as set forth below:

   2.1

   Curl RTE. Subject to the terms and conditions of this Agreement, Curl grants to Licensee, and Licensee accepts a limited, personal, non-exclusive, non-transferable and royalty-free right and license during the Term (as defined below) to download, install and use the Curl RTE Software, solely for the purpose of executing Curl Customer Applications.

   2.2

   Curl IDE.

   Curl IDE Software License. Subject to the terms and conditions of this Agreement, Curl grants to Curl Customer, and Curl Customer accepts a limited, personal, non-exclusive, non-transferable and royalty-free right and license (without the right to sublicense) during the Term to (a) download, install and use and, in the event any Curl IDE Software is provided in Source Code format, modify and update the Curl IDE Software; and (b) use any related Documentation, in each case, solely for the purposes of developing Curl Customer Applications for use in a publicly accessible Internet environment that does not (i) include a fee-based application; or (ii) use a secure connection protocol such as HTTPS. Curl Pro/IDE Software License. Evaluation Version. Subject to the terms and conditions of this Agreement, Curl grants to Curl Customer, and Curl Customer accepts a limited, personal, non-exclusive, non-transferable and royalty-free right and license (without the right to sublicense) to download, install and use the Evaluation Version of the Curl Pro/IDE Software, and any related Documentation, solely for the purposes of internal testing and evaluation of such software in connection with the Curl Platform. Following the Evaluation Period, Curl Customer may obtain a commercial license to the Curl Pro/IDE Software in accordance with Section 2.2(ii)(B) below and following payment of any Fees in accordance with Section 2.4 herein. If Curl Customer does not elect to obtain a commercial license for the Curl Pro/IDE Software, the license to the Evaluation Version of the Curl Pro/IDE Software shall immediately terminate and revert to the Curl IDE Software License granted to Curl Customer, if any, and such license shall survive in accordance with its terms. Commercial Version. Curl Customer may request a license to the commercial version of the Curl Pro/Deployment license. Upon payment of Fees (as defined below) for such license in accordance with Section 2.4 herein and, subject to the terms and conditions of this Agreement and any other terms set forth in the Order Form, Curl grants to Curl Customer, and Curl Customer accepts a limited, personal, non-exclusive, non-transferable right and license (without the right to sublicense) during the Term to deploy Curl Customer Applications created using the Curl Pro/IDE Software for the purposes set forth in the Order Form.

   2.3	Curl Deployment.

   2.4

   Curl Deployment License. Subject to the terms and conditions of this Agreement, Curl grants to Curl Customer, and Curl Customer accepts a limited, personal, non-exclusive, non-transferable and royalty-free right and license (without the right to sublicense) during the Term to deploy and make available to Curl End Users the Curl Customer Applications created using the Curl IDE Software for use in a publicly accessible internet environment that does not (a) include a fee-based application; or (b) use a secure connection protocol such as HTTPS.

   Curl Pro/Deployment License. Evaluation Version. Subject to the terms and conditions of this Agreement, Curl grants to Curl Customer, and Curl Customer accepts a limited, personal, non-exclusive, non-transferable and royalty-free right and license (without the right to sublicense) for the Evaluation Period to deploy the Curl Customer Applications created using the Curl Pro/IDE Software solely for the purposes of internal testing and evaluation of the Curl Platform. The Evaluation Version of Curl Pro/Deployment License shall immediately terminate following the Evaluation Period. Commercial Version. Curl Customer may request a license to the commercial version of the Curl Pro/Deployment license. Upon payment of Fees (as defined below) for such license in accordance with Section 2.4 herein and, subject to the terms and conditions of this Agreement and any other terms set forth in the Order Form, Curl grants to Curl Customer, and Curl Customer accepts a limited, personal, non-exclusive, non-transferable right and license (without the right to sublicense) during the Term to deploy Curl Customer Applications created using the Curl Pro/IDE Software for the purposes set forth in the Order Form.

   2.5

   Payment. Before Curl grants to Curl Customer any license for any portion of the Curl Platform (including the Curl Pro/Deployment license described in Section 2.3(ii)(B)) that requires payment of a fee, Licensee shall pay to Curl the applicable fee in the amount set forth in the Order Form as solely determined by Curl (“Fees”). The Fees are due and payable in accordance with the terms and conditions of the Order Form without set-off or counterclaim, free and clear of (and without deduction for or grossed up for, as applicable) any taxes, duties, charges, withholdings, restrictions or conditions of any nature imposed or levied by and governmental, taxing or other authority. All payments shall be made by Curl Customer to Curl when due and in U.S. dollars.

   2.6

   License Restrictions. (a) Except as specifically permitted in this Agreement, Licensee shall not directly or indirectly (i) encumber, sell, transfer, assign, rent, lease, license, sublicense, time-share or use the Package in any service bureau arrangement; or (ii) copy (except for a single copy for archival purposes), distribute, manufacture, adapt, modify, enhance, create Derivative Works of, translate, localize, port or otherwise modify the Package or (iii) permit any third party to engage in any of the acts proscribed in clauses (i) and (ii). Licensee assumes sole responsibility for obtaining any software required for use of the Package, including any operating system software, database software, or third party applications software or for conversion of any of Licensee’s existing data files for use with the Package. Except as may be otherwise provided in the Order Form, Licensee may use one copy of the Package on a single computer.

   (b) Notwithstanding anything to the contrary in this Agreement, if a Curl Customer obtains a license to the Source Code for any component or portion of the Curl Platform, Licensee must (i) not remove or alter any copyright notice or other proprietary notice, or restrictive rights legend embedded in or displayed on the Source Code, (ii) cause any Curl Customer Application containing the Source Code to contain a notice stating that Curl Customer has modified the Source Code and is solely responsible for its operation and maintenance; (iii) embed in all copies of any Curl Customer Applications containing the Source Code or display on any accompanying documentation, a prominent notice stating that Curl, its Affiliates and/or its or their respective licensors’ disclaim any and all representations and warranties (including the implied warranties of merchantability, fitness for a particular purpose or non-infringement of third party intellectual property rights) and shall have no obligations or liabilities whatsoever (including maintenance obligations) to any Curl End User or other third party in connection with such Curl Customer Applications.

3. Protection of Curl Platform. Licensee agrees to protect the Package from unauthorized copying or use. Except as expressly set forth in this Agreement, Licensee acknowledges that the Source Code for the Curl Platform and other trade secrets embodied in the Curl Platform have not been, and are not going to be, disclosed to Licensee. Licensee is not permitted (a) to decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer the Curl Platform; (b) to use any similar means to discover the Source Code of the Curl Platform or to discover the trade secrets in the Curl Platform; or (c) to otherwise circumvent any technological measure that controls access to the Curl Platform, without the prior written consent of Curl. Licensee agrees not to remove or alter any copyright notice or other proprietary notice, or restrictive rights legend embedded in or displayed on the Package. Any information obtained in violation of the foregoing shall be deemed to be the Confidential Information (as defined below) and sole and exclusive property of Curl and is hereby automatically and irrevocably assigned to Curl.

4. Support and Upgrades. Except as expressly set forth in the Order Form or in a separate agreement signed by an authorized representative of Curl, the license granted to Licensee hereunder does not entitle Licensee to receive any Support Services from Curl or any of its Affiliates. For purposes hereof, “Support Services” means documentation, technical support, telephone assistance, or any new releases of or patches, corrections, updates, upgrades, modifications, enhancements, or additions to the Package but Support Services that may be provided by Curl may not include all of the foregoing. Curl will be under no obligation to make any tests, revisions or corrections to the Package requested by Licensee, or to maintain the Package at any particular level of performance, or to keep it in operating condition, or to market or sell the Package. Curl will not be required to furnish technical support for any purpose, including but not limited to, collateral issues or damage of any kind resulting from or in any way connected to installation or use of the Package.

5. Evaluations. Licensee agrees to, upon request by Curl, (a) test and evaluate the Package; (b) cooperate with Curl in evaluations of the Package; (c) provide Curl with prompt reports of any errors, problems, defects or suggestions for change, modification or improvement to the Package; and (d) provide Curl with a written report concerning Licensee’s overall evaluation of the Package.

6. OWNERSHIP. Licensee acknowledges and agrees that Curl, its Affiliates and/or its or their respective licensors own all right, title and interest in and to the Package including without limitation any and all Intellectual Property Rights. Except as expressly provided in this Agreement, Licensee will not acquire any rights or licenses under any of Curl’s (or its Affiliates’ or their respective licensors’) Intellectual Property Rights on account of this Agreement or Licensee’s performance under this Agreement. All (a) suggestions for correction, change and modification to the Package; (b) evaluation data; (c) evaluations; and (d) other feedback (including, but not limited to, quotations of written or oral feedback relating to the Package), information and reports provided to Curl by Licensee upon Curl’s request will be the exclusive property of Curl and Curl may use and disclose any such evaluations, reports, feedback or other information in any manner and for any purpose whatsoever. Licensee agrees to assist Curl in obtaining intellectual property protection relating to such suggestions, evaluation data, evaluations, feedback, information and reports as Curl may reasonably request. Curl may publish Licensee’s company name in any promotional materials, press release or other public announcement issued or distributed by Curl. Licensee acknowledges and agrees that Curl and/or its Affiliates own the Curl, Surge, Surge Lab and Surge Lab Visual Layout Editor (VLE) trademarks and all Curl, Surge, Surge Lab and Surge Lab Visual Layout Editor (VLE)-related trademarks, service marks, logos and other brand designations, and you agree to comply with the any trademark and usage requirements of Curl and its Affiliates as may be provided from time to time. The Package is protected by the laws of Japan, by the international treaty provisions and other applicable laws. Any rights not expressly granted in this Agreement are reserved to Curl, its Affiliates and its or their respective licensors.

7. CONFIDENTIAL information.

   7.1

   Confidential Information. “Confidential Information” means Curl’s confidential and/or proprietary information and data related to technology and business activities, including, but not limited to, trade secret, technical, developmental, marketing, sales, strategies, operating, performance, cost, know-how, business and process information and documentation; computer programming techniques, computer programs and software (including, but not limited to architecture diagrams, source code, object code, software output, screen displays/file hierarchies, graphics and user interfaces), documentation, and all record bearing media containing or disclosing such information and techniques; samples, models or prototypes, or parts thereof; formulas; and third-party confidential information, irrespective of being marked as “confidential” or not. For purposes of this provision, Curl’s Confidential Information shall be deemed to include the Package, the Source Code and any Confidential Information of its Affiliates, parents or their subsidiaries and successors as well as proprietary information of third parties who have granted licenses to Curl. The term “Confidential Information” does not include information which (a) has been or may in the future be published or is now or may in the future be otherwise in the public domain through no fault of Licensee; (b) prior to disclosure pursuant to this Agreement is rightfully within the lawful possession of Licensee; (c) subsequent to disclosure pursuant to this Agreement is lawfully received from a third party having rights in the information without restriction of the third party’s right to disseminate the information and without notice of any restriction against its further disclosure; or (d) is independently developed by Licensee through parties who have not had access to such Confidential Information. Licensee may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives Curl reasonable prior written notice to permit Curl to contest such disclosure, and such disclosure is otherwise limited to the required disclosure. Disclosure of Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, shall not constitute publication or otherwise alter the character of that information as Confidential Information as between the parties hereunder.

   7.2

   Confidential Obligations. All Confidential Information disclosed to Licensee is deemed to be confidential, restricted and proprietary to Curl. Licensee acknowledges that it acquires only the right to use the Confidential Information under the terms and conditions of this Agreement and does not acquire any rights of ownership or title in the Confidential Information. Licensee shall hold in strict confidence any Confidential Information received by it from Curl and shall protect the confidentiality of such with the same degree of care that it exercises with respect to its own information of like import, but in no event less than reasonable care, for a period of five (5) years from the termination of this Agreement. All Confidential Information, unless otherwise agreed in writing, (a) shall not be copied, distributed, disclosed, or disseminated in any way or form by Licensee without the prior written consent of Curl, other than to those of Licensee’s employees and contractors to whom it is necessary to disclose such Confidential Information to perform its obligations under this Agreement and whom have agreed in writing not disclose the Confidential Information; (b) shall be used by Licensee only in connection with performing its obligations under this Agreement, unless otherwise agreed to in writing by Curl; and (c) shall remain the property of and be returned together with all copies of such information, to Curl or destroyed after Licensee’s need for it has expired or upon request of Curl, and, in any event, upon termination of this Agreement. At the request of Curl, Licensee will furnish a certificate of an officer of Licensee certifying that Confidential Information not returned to Curl has been destroyed. Licensee shall bear the responsibility for any breach of confidentiality by its respective employees and contractors. Licensee agrees to give notice to Curl immediately after learning of or having reason to suspect a breach of any of the proprietary restrictions set forth in this Section 7.

   7.3

   Injunction. The parties acknowledge that in the event of a breach of this Section 7, Curl may be irreparably harmed and that there may not be a remedy at law adequate to protect it. If a court of competent jurisdiction should find that Licensee has breached (or attempted or threatened to breach) any such obligations, Licensee agrees that, without any additional findings of irreparable injury or other conditions to injunctive relief (including proving of actual damages or the posting of a bond), it shall not oppose the entry of an appropriate order compelling performance by Licensee and restraining Licensee from any further breaches (or attempted or threatened breaches).

8. Taxes. All Fees specified in this Agreement are exclusive of taxes. Licensee is solely responsible for all taxes, duties and customs fees as well as penalties, interest, withholding, and any cost thereof concerning the Package, and/or any materials related thereto, and any other forms of taxation properly chargeable with respect to this Agreement and/or separate agreement, other than taxes based on the net income of Curl. If any certificate, document or other evidence of exemption or payment or withholding taxes by Licensee is required to exempt licensing of the Package, and/or any material related to thereto from any such liability or to enable Curl to claim any tax exemption, credit, or other benefit, Licensee agree to furnish promptly such certificate or document to Curl.

9. VERIFICATION; AUDIT.

   9.1

   Within ten (10) days after a request by Curl, Licensee shall furnish to Curl a certification signed by Licensee (if Licensee is an individual user of the Package) or Licensee’s Chief Financial Officer or other appropriate officer (if Licensee is an entity) certifying that Licensee is using the Package in accordance with the terms and conditions of this Agreement.

   9.2

   Licensee will keep and maintain accurate and detailed books and records related to Licensee’s use of the Package and Licensee’s compliance with this Agreement. Curl shall have the right, upon reasonable prior notice to Licensee, to conduct an independent audit to verify Licensee’s use of the Package and Licensee's compliance with this Agreement. Licensee shall make its facilities and all hardware or other equipment on which the Curl Platform is installed and all applicable books and records available for inspection during normal business hours. Such audit will not disrupt Licensee’s normal business operations. Any such audit shall be at the expense of Curl, unless such audit discloses an underpayment by Licensee for the audited period in excess of five percent (5%), in which case Licensee shall reimburse Curl for such expense. If the audit discloses any underpayment by Licensee, Licensee shall promptly make payment to Curl of: (a) an amount based on the Curl price list in effect at the time the audit is completed; and (b) interest for the period from the date such amounts were due until the date payment is made at a rate of 1.5% per month or, if lesser, the maximum amount permitted by law, in addition to any other remedies which Curl may have in law and/or in equity.

10. TERM AND TERMINATION.

    10.1

    The Term of this Agreement is effective as of the earlier of the date Licensee executes the Order Form, if applicable, for any component of the Curl Platform, or agrees to the terms of this Agreement by clicking the “I Agree” button (“Effective Date”). This Agreement shall continue unless terminated in accordance with the provisions of Section 10.2, provided that if Licensee obtains a license to an Evaluation Version of any component of the Curl Platform, this Agreement will immediately terminate without notice upon completion of the Evaluation Period, unless Licensee elects to obtain a commercial version of any component of the Curl Platform or as otherwise provided herein. The Evaluation Version contains a time-out feature that automatically disables its operation after the Evaluation Period. Licensee obtains a commercial version of any component of the Curl Platform, in which case this Agreement shall continue unless terminated in accordance with the provisions of Section 10.2.

    10.2

    This Agreement may be terminated: 10.2.1 by either party, in the event the other party materially breaches a provision of this Agreement and the breaching party fails to cure such breach within thirty (30) days of the receipt of notice of such breach from the non-breaching party; 10.2.2 as specified in the Order Form, if applicable; 10.2.3 by either party, immediately in the event any assignment is made by the other party for the benefit of creditors, or if a receiver, trustee in bankruptcy or similar officer shall be appointed to take charge of any or all of the other party's property, or if the other party files a voluntary petition under federal bankruptcy laws or similar state statutes or such a petition is filed against the other party and is not dismissed within sixty (60) days; or 10.2.4 immediately by Curl upon notice to Licensee if Licensee is in breach of Sections 2 or 7 of this Agreement.

    10.3	Except as provided herein, Curl shall not be responsible to Licensee for rebate, compensation, damages or otherwise by reason of termination of this Agreement at any time.

    10.4

    Upon termination of this Agreement for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except as follows: (a) Licensee's liability for any charges, payments or expenses due to Curl that accrued prior to the termination date shall not be extinguished by termination, and such amounts (if not otherwise due on an earlier date) shall be immediately due and payable on the termination date; and (b) Licensee shall have no further right to copy or use the Package and immediately after the termination or expiration date hereof, the Licensee shall, at the Licensee's expense, (i) delete or destroy all originals and copies of the Package in the possession or under the control of the Licensee; and (ii) return to Curl all Confidential Information. Licensee shall certify in writing to Curl within ten (10) days following termination that it has complied with this Section 10.4. It is the express intent and agreement of the parties that Curl shall not be liable to Licensee for damages or otherwise by reason of the termination of this Agreement as provided in this Section 10.

11. WARRANTY DISCLAIMER.

    11.1

    Licensee acknowledges that: (a) the evaluation version of any Package may not be in final form or fully functional and may contain errors, design flaws or other problems; and (b) use of the Package OR ANY SUPPORT SERVICES may result in unexpected results, loss of data or other unpredictable damage or loss to Licensee. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE PACKAGE AND ANY SUPPORT SERVICES ARE BEING PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. CURL, ITS AFFILIATES AND ITS OR THEIR RESPECTIVE LICENSORS MAKE NO WARRANTIES OR GUARANTEES OR REPRESENTATIONS, AND EXPLICITLY DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, ORAL OR WRITTEN, OF ANY KIND OR NATURE, WITH RESPECT TO THE PACKAGE, ANY SUPPORT SERVICES, THE USE OR DISTRIBUTION THEREOF, INCLUDING ANY MODIFICATION THEREOF BY LICENSEE OR ANY THIRD PARTY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, INTERFERENCE WITH ENJOYMENT, ACCURACY, COMPLETENESS, INTEGRATION, FREEDOM FROM DEFECTS OR DISABLING DEVICES, UNINTERRUPTED USE, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. CURL DOES NOT WARRANT THAT (A) THE PACKAGE OR ANY SUPPORT SERVICES WILL MEET LICENSEE’S REQUIREMENTS, (B) OPERATION OF THE PACKAGE OR ANY SUPPORT SERVICES WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE, OR (C) DEFECTS WILL BE CORRECTED.

    11.2

    The Package is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Package could lead directly or indirectly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). Accordingly, Curl, its Affiliates and its or their respective licensors specifically disclaim any express or implied warranty of fitness for High Risk Activities. Licensee agrees that Curl, its Affiliates and/or its or their respective licensors will not be liable for any claims or damages arising from the use of the Package in such applications.

12. Indemnification. Licensee agrees to defend, indemnify and hold Curl and its Affiliates and their respective officers, directors, employees, agents, successors and assigns harmless from and against any and all claims, demands, liabilities, obligations, costs and expenses of any nature whatsoever (including attorney fees) arising out of or based upon the use, modification or distribution of the Package and/or any Support Services by Licensee.

13. LIMITATION OF LIABILITY. IN NO EVENT SHALL CURL, ITS AFFILIATES AND/OR ITS OR THEIR LICENSORS BE LIABLE FOR ANY DIRECT AND/OR INDIRECT DAMAGES SUFFERED AS A RESULT OF DOWNLOADING, INSTALLING, USING OR DISTRIBUTING THE PACKAGE, OR ARISING OUT OF ANY SUPPORT SERVICES OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT OR ANY PORTION THEREOF, INCLUDING WITHOUT LIMITATION FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES, OR FOR LOSS OF BUSINESS REVENUE, LOSS OF PROFITS, LOSS OF ECONOMIC ADVANTAGE, LOSS OF DATA OR LOSS OF USE DAMAGES, ARISING OUT OF LICENSEE’S USE OR DISTRIBUTION OF ANY PORTION OF THE PACKAGE OR ANY SUPPORT SERVICES, OR THE PRODUCTION, SUPPLYING, OR FAILURE OR DELAY IN SUPPLYING OF THE PACKAGE OR SUPPORT SERVICES RELATED THERETO, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY OF LIABILITY, EVEN IF CURL, ITS AFFILIATES OR ITS OR THEIR RESPECTIVE LICENSORS HAVE BEEN ADVISED OF OR ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. CURL’S, ITS AFFILIATES’ AND THEIR RESPECTIVE LICENSORS’ LIABILITY FOR DAMAGES TO LICENSEE FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, SHALL NOT EXCEED THE FEES PAID BY LICENSEE FOR THE PACKAGE AND SUPPORT SERVICES. LICENSEE HAS SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACKUP OF DATA AND/OR EQUIPMENT USED IN CONNECTION WITH THE PACKAGE.

14. FORCE MAJEURE. Curl shall not be in default hereunder by reason of its delay in the performance of or failure to perform, in whole or in part, any of its obligations hereunder if such delay or failure resulted from acts of nature, fire, or other catastrophe; enemy, hostile governmental or terrorist action; electrical, power or mechanical failure or other communication failure; work stoppage; delays or failure to act of any carrier or agent; direction or effect of an order from a court or government agency or body; or any other such cause beyond Curl’s reasonable control.

15. U.S. Government Restricted Rights. If the Package is acquired by or on behalf of a unit or agency of the United States Government (the "Government"), the Government agrees that such Package is "commercial computer software" and "commercial computer software documentation", respectively, and that absent a written agreement to the contrary, the Government's rights with respect to such Package are, in the case of civilian agency use, RESTRICTED RIGHTS, as defined in FAR §52.227.19, and if for the Department of Defense use, limited by the terms of this Agreement, pursuant to DFAR §227.7202. The use of the Package by the Government constitutes acknowledgment of Curl’s proprietary rights in the Package. Contractor/manufacturer is Curl. Curl’s address is set forth at the end of this Agreement.

16. GENERAL TERMS.

    16.1

    Compliance with Laws. The Package may be subject to export controls under the U.S. Export Administration Regulations and related U.S. laws. Licensee shall (a) comply strictly with all legal requirements established under these controls; (b) cooperate fully with Curl in any audit that relates to these controls; and (c) not export, re-export, divert, transfer or disclose, directly or indirectly ("Export"), the Package to any country, or any national or resident thereof, which the U.S. Government determines from time to time is a country to which such Export is restricted without obtaining the prior written authorization of Curl and the applicable U.S. Government agency. By downloading or using the Package, Licensee is certifying that it is not a national or resident of any country which the U.S. Government determines from time to time is a country to which an Export is prohibited or restricted without obtaining the prior written authorization of Curl and the applicable U.S. Government agency. Unless Curl determines otherwise, Licensee will be responsible for complying with all local customs clearance requirements and will be identified as the Importer of Record. Licensee shall defend and indemnify Curl from and against any damages, fines, penalties, assessments, liabilities, costs and expenses (including reasonable attorneys' fees and court costs) arising out of any claim that the Package or other information or materials provided by Curl hereunder were exported or otherwise accessed, shipped or transported in violation of applicable laws and regulations. Licensee shall comply with all laws, legislation, rules, regulations, and governmental requirements with respect to the Package, and the performance by Licensee of its obligations hereunder, of any jurisdiction in or from which Licensee directly or indirectly causes the Package to be used or accessed. In the event that this Agreement is required to be registered with any governmental authority, Licensee shall cause such registration to be made and shall bear any expense or tax payable in respect thereof.

    16.2

    Assignment. Licensee may not assign or otherwise transfer this Agreement or its rights or obligations under this Agreement (by operation of law or otherwise) without the prior written consent of Curl. Any prohibited assignment shall be considered null and void. This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto and their respective successors, assigns, heirs and legal representatives.

    16.3

    Waiver. No provision of this Agreement shall be deemed waived, amended, or modified by either party unless such waiver, amendment or modification is in writing and signed by the party against whom it is sought to enforce the waiver, amendment or modification. A single waiver by a party shall not act as, nor shall it be deemed to constitute, an ongoing waiver of the same provision.

    16.4

    Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written construed, and enforced as so limited.

    16.5

    Notices. Any notice or communication from one party to the other shall be in writing and either personally delivered or sent via facsimile or certified mail, postage prepaid and return receipt requested, addressed to such other party (a) if to Curl, at the address specified below; and (b) if to Licensee, at the address specified in the registration form for this license or in either case at such other address as such party may from time to time designate in a notice to the other party. All notices shall be in English and shall be effective upon receipt.

    16.6

    Entire Agreement. This Agreement constitutes the entire understanding and agreement between Curl and Licensee with respect to subject matter hereof and supersedes all prior or contemporaneous representations and agreements or other communications with respect to such subject matter. Licensee acknowledges that it has not been induced to enter into this Agreement by any representations or statements, oral or written, not expressly contained herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance with the terms and conditions of any purchase order or other instrument submitted by Licensee. Any modification, amendment or other change to this Agreement must be in writing and signed by Curl and Licensee.

    16.7	Headings. The headings in this Agreement are for convenience only and do not affect the interpretation hereof.

    16.8	Survival. Sections 1, 6, 7 and 11-16 and any provision herein which is clearly intended to survive shall survive any expiration or termination of this Agreement.

    16.9

    Governing Law. This Agreement shall be construed in accordance with the laws of the Commonwealth of Massachusetts without regard to conflicts of law principles. Exclusive jurisdiction and venue for any litigation arising under this Agreement (other than those for which arbitration pursuant to Section 16.10 is the sole forum) is in the federal and state courts located in Suffolk County, Massachusetts and both parties hereby consent to such jurisdiction and venue for this purpose. In any such action, suit or proceeding, the successful or prevailing party shall be entitled to recover its reasonable attorneys' fees and other costs incurred in connection with that action, suit or proceeding, in addition to any other relief to which such party may be entitled.

    16.10

    Arbitration. All disputes arising out of or in connection with this Agreement shall be settled by binding arbitration in accordance with this Section 16.10, provided, that either party may seek equitable or declaratory relief in accordance with Section 16.9 above. The decision of the arbitrator(s) shall be enforceable in any court of competent jurisdiction. Each party irrevocably and unconditionally (a) consents to the jurisdiction of any such proceeding and waives any objection that it may have to personal jurisdiction or the laying of venue of any such proceeding; and (b) waives its rights to have disputes tried and adjudicated by a judge and jury except as otherwise expressly provided herein. The arbitration and the selection of the arbitrator(s) shall be conducted in accordance with such rules as may be agreed upon by the parties, or, failing agreement within thirty (30) days after arbitration is demanded, under the Commercial Arbitration Rules of the American Arbitration Association, as such rules may be modified by this Agreement. If the parties are unable to agree upon a single arbitrator within sixty (60) days, three (3) arbitrators shall be used, one selected by each party within ten (10) days after the conclusion of the sixty (60) day period and a third selected by the first two within ten (10) days thereafter. Unless the parties agree otherwise, they shall be limited in their discovery to directly relevant documents. Responses or objections to a document request shall be served twenty (20) days after receipt of the request. The arbitrator(s) shall resolve any discovery disputes. The costs and expenses of the arbitration, but not the costs and expenses of the parties, shall be shared equally by the parties; provided that if the arbitrator(s) determine(s) that one party prevailed in the proceeding, then the other party shall bear the entire cost and expense of the arbitration. Except as otherwise required by law, the parties and the arbitrator(s) shall maintain as confidential all information or documents obtained during the arbitration process, including the resolution of the dispute.

    16.11

    No Agency; Independent Contractors. Nothing contained in this Agreement shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

    16.12

    Publicity. Licensee shall not originate any publicity, news release or other public announcement relating to the Package, this Agreement, its terms or the existence of an arrangement between the parties without the prior written approval of Curl, except as otherwise required by law.

    16.13

    Costs, Expenses and Attorneys' Fees. Licensee shall reimburse Curl for all reasonable costs (including attorneys' fees) incurred by Curl in collecting late payments from Licensee. If either party commences any action or proceeding against the other party to enforce or interpret this Agreement, the prevailing party in such action or proceeding shall be entitled to recover from the other party the actual costs, expenses and attorneys' fees (including all related costs and expenses), incurred by such prevailing party in connection with such action or proceeding and in connection with obtaining and enforcing any judgment or order thereby obtained.

17. Acknowledgment. Licensee acknowledges that (a) it has read and understands this Agreement; (b) it has had an opportunity to have its legal counsel review this Agreement; (c) that this Agreement has the same force and effect as a signed agreement; (d) Curl requires identification of the Licensee before issuing this license; (e) issuance of this license does not constitute general publication of the Package or other Confidential Information; and (f) the individual accepting this Agreement on behalf of a corporation or other legal entity personally represents that he or she is duly authorized to accept this Agreement on behalf of such entity and that this Agreement is binding upon such entity.

Licensor: Curl, Incorporated

One Cambridge Center 10th Floor

Cambridge, MA 02142