Gexcel End User License and Maintenance Agreement

IMPORTANT, READ CAREFULLY.

THIS END USER LICENSE AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU ("You", the licensee, either an individual person or a single legal entity) AND GEXCEL SRL ("Gexcel") and applies to the computer software with which this Agreement is provided, and includes any accompanying printed materials and any "online" or electronic documentation ("Software"). This Agreement will also apply to any Software error corrections, updates and upgrades subsequently furnished by Gexcel, unless such are accompanied by different license terms and conditions which will govern their use.

BY CLICKING THE "I ACCEPT" BUTTON, OR BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THIS SOFTWARE.

Gexcel may change the terms of this Agreement from time to time (and shall upload such updated terms onto Gexcel website at www.gexcel.it). Your continued access to and use of the Software will be deemed acceptance of the updated or amended terms. If you do not agree to the changes, you should cease using the Software.

This Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold.

1. SOFTWARE LICENSE.

1.1. License Grant. Subject to Your compliance with the terms of this Agreement, and any applicable restrictions set forth on the Purchase Order, Gexcel grants You a non-exclusive, non-transferable license, without right of sublicense, to install, use and display the Software in a machine-readable form solely for Your internal purposes, and solely in connection with Your use of the Software. The Software installation is provided on a digital media (CD, DVD) or as a downloadable file (ISO image or executable file) from the Gexcel online repository, whose link is communicated by e-mail. You may reasonably copy the Software to the extent necessary to enable Your permitted internal use of the Software, but You may not copy or distribute the Software to any third parties.

1.2. Other Rights and Limitations. (1) The Software contains valuable trade secrets proprietary to Gexcel and its suppliers or licensors. To the extent permitted by relevant law, You shall not, nor allow any third party to modify, adapt, translate, prepare derivative works from, copy, decompile, disassemble or otherwise reverse engineer the Software or any internal data files generated by the Software, or attempt to do so, provided, however, that to the extent any applicable mandatory laws give You the right to perform any of the aforementioned activities without Gexcel's consent, You hereby agree that, before exercising any such rights, You shall first request such information from Gexcel in writing detailing the purpose for which You need the information. Only if and after Gexcel, at its sole discretion, partly or completely denies Your request, may You exercise such statutory rights. (2) This Software is licensed as a single product. You may not separate its component parts for use on more than one computer or device. (3) You may not rent, lease, lend, or otherwise transfer rights to the Software or the use thereof to any third party. (4) Concurrent use of the Software is not permitted if not included in the license type.

1.3. Ownership Notices. (1) All right, title and interest (including but not limited to copyright, patent, trade secret and all other intellectual property and proprietary rights worldwide) in and to the Software (including but not limited to any images, photographs, animations, video, and text incorporated into the Software), the accompanying printed materials, and any copies of the Software are owned by Gexcel and its suppliers or licensors. You shall not remove, cover or alter any of Gexcel's (or its designated suppliers' and licensors') copyright, trademark or other proprietary notices placed upon, embedded in or displayed by the Software or on its packaging and related materials. (2) You acknowledge that the Software is designed to work with, and contains, certain third party software, including without limitation, certain software licensed by its owners under open source software license (collectively, the "Third Party Software"). Any Third Party Software, whether distributed with the Software or otherwise obtained by You, is subject to the terms of the third party software license accompanying or otherwise applicable to that Third Party Software ("Third Party License"). The terms of the applicable Third Party License will apply to the Third Party Software independent of the terms of this Agreement. Nothing in this Agreement limits Your rights under, or grants rights to You that supersede the terms of any applicable Third Party License.

1.4. U.S. Government Restricted Rights. The software and documentation are "commercial items" as that term is defined at 48 C.F.R.2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the software and documentation with only those restricted rights as set forth herein.

2. TERM.

2.1. Effectiveness. "Effective Date" means the date upon which You purchase a license Key from Gexcel, or issues to Gexcel a valid purchase order for a license Key. This Agreement is effective upon the Effective Date or, in any event, upon Your installation of the Software and continues unless terminated by Section 8 below.

2.2. Software Activation. The Software activation is provided by software-based protection keys ("Software Key") or hardware-based protection keys ("USB Dongle Key"). Following the receipt by Gexcel of the applicable Fees for the relevant license, Gexcel will issue to You a key to activate the Software for the license (a "Key"). You will be responsible for installing the Key to activate the Software. The Key shall be considered Confidential Information of Gexcel, as that term is defined herein. Gexcel shall provide temporal activation depending to purchase and payment conditions.

2.3. Evaluation Term. You are granted a limited right to use the Software, in compliance with this Agreement, free of charge for a period of evaluation commencing upon the date on which You install the Software. For details about th evaluation time please contact sales@gexcel.it.Within the Evaluation Period, the Software runs as fully functional Trial except for the ability in exporting items.

3. FEES AND PAYMENT.

3.1. Fees. In consideration for the rights granted hereunder, You shall pay all the license Fees to Gexcel in the amounts set forth on the Purchase Order on or before the Effective Date specified on the Purchase Order.

3.2. Terms of Payment. All payments are non-refundable (with an exception for any limited money-back guarantees that are specified in writing or on the Gexcel website, www.gexcel.it, at the time of purchase of a license.) You shall be responsible for all sales taxes, use taxes, withholding taxes, value added taxes and any other similar taxes imposed by any federal, state, provincial or local governmental entity on the transactions contemplated by this Agreement, excluding taxes based upon Gexcel's net income. When Gexcel has the legal obligation to pay or collect such taxes, the appropriate amount shall be invoiced to and paid by You unless You provide Gexcel with a valid tax exemption certificate authorized by the appropriate taxing authority.

4. SOFTWARE MAINTENANCE.

4.1. Software Maintenance Services. During the maintenance term and subject to the terms and conditions hereafter specified, Gexcel shall provide Software Maintenance Services, including both technical support services and software releases. (1) Technical Support Service is provided through e-mail Address: support@gexcel.it. (2) As part of its maintenance services, Gexcel may provide periodic Software Releases, including Updates (generally available releases of Software that provide Bug Fixes, Error Corrections and Enhancements designated minor by Gexcel) and Upgrades (generally available releases of Software that provide enhancements designated major by Gexcel as well as minor new Enhancements and Error Corrections). Available Software releases, periodically issued by Gexcel, may either be downloaded from Gexcel’s web site (www.gexcel.it) or delivered on digital support upon written request to Gexcel.

4.2. Software Maintenance Limitations. (1) Gexcel shall have no obligation to provide Releases or Support for the Software except as set forth hereafter. Gexcel shall not have any responsibility to develop subsequent components for the Software or additional processes for You, except as explicitly set forth herein. (2) Gexcel shall have no obligation to fix errors in the Software within a specific time duration. Gexcel will use commercially reasonable best efforts to fix bugs and other Software defects (but not including viruses or other defects not inherent in the Software when delivered By Gexcel) in a timely manner during its normal business hours and upon reasonable notice, other than any bugs or defects caused by unauthorized use or modification of the Software, accident, abuse, misuse or misapplication of the Software or the magnetic or electronic media containing the Software. (3) You acknowledge that Gexcel, after using all reasonable efforts, may not be able to resolve an Error and that such inability shall not be considered a breach or event of default under this Agreement, nor be the cause of any liability to Gexcel. In the event that Gexcel notifies to You its inability in fixing an Error in the Software, You may at your option and as your sole and exclusive remedy, terminate the Software Maintenance for the applicable Software. Upon such termination, neither party shall have any obligation or liability to the other in connection with such Software Maintenance. (4) Gexcel shall have no obligation to fix Errors in any version of the Software other than the latest official release. (5) Your rights and obligations concerning the use of any Releases (Error Corrections, Enhancements, or any other programming provided by Gexcel relating to the Software) shall be as provided under this End User License Agreement. (6) Maintenance Services do not include: (a) development of custom computer programs, (b) repairs or service relating to any Third Party Software or hardware, or (c) hardware modifications or changes to existing hardware configurations, outside the scope of warranty support. (7) Gexcel may, at its discretion, upon notice to You and with no additional charge, make modifications to the Software. Such modifications shall not jeopardize the basic functionality of the Software or invalidate this Agreement.

4.3. USB Dongle Key and Software Key Replacement. (1) For USB Dongle activation, within a period of ten (10) days from the date of acquisition, Gexcel warrants that the USB Dongle Key will be free from defects in materials and faulty workmanship under normal use and service. If a defect in the USB Dongle Key should occur during such 10 days period, the USB Dongle Key may be returned to Gexcel who will replace the USB Dongle Key without any charge for You, provided that the You have properly used the USB Dongle. After this period and if the failure of the USB Dongle Key has resulted from unauthorized use, accident, abuse, misuse or misapplication of the USB Dongle Key, You shall return to Gexcel the damaged dongle and pay to Gexcel a Replacement Fee of 250,00 Euro (delivery charges excluded), as advised by Gexcel. In case of USB Dongle Key loss, or stolen, You shall provide Gexcel with a written and signed declaration, contact Gexcel at sales@gexcel.it and pay to Gexcel 80% of the software price for a new Dongle Key.(2) The Software Key may be activated on a single computer system. In case of damages occurred to the installation computer system that do compromise the installed Software Key, You shall provide Gexcel with a written and signed declaration, contact Gexcel at sales@gexcel.it and pay to Gexcel 80% of the software price for a new Dongle Key.

4.4. Software Maintenance Term. The Software Maintenance Services provided under this Agreement shall run from the date of First License Activation for a time period of twelve (12) months or until the term in years for which the Maintenance Services have been purchased by You.

4.5. Software Maintenance Fee. The first Software Maintenance period of twelve (12) months after the First License Activation is available at a price included in the Software License Fee. The Renewal of Software Maintenance for the subsequent twelve (12) months may be available at a Renewal Fee of 15% of the full price of the purchased Software License, unless otherwise advised by Gexcel.

5. NO WARRANTIES.

THE SOFTWARE IS BEING DELIVERED TO YOU "AS IS" AND GEXCEL MAKES NO WARRANTY AS TO ITS USE OR PERFORMANCE. GEXCEL AND ITS SUPPLIERS AND LICENSORS DO NOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. YOU ASSUME THE ENTIRE RISK AS TO RESULTS AND PERFORMANCE OF THE SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GEXCEL AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES, TERMS, AND CONDITIONS, EITHER EXPRESS OR IMPLIED, BY STATUTE, COMMON LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES, TERMS, AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT WITH REGARD TO THE SOFTWARE, ITS SATISFACTORY QUALITY, AND THE PROVISION OF OR FAILURE TO PROVIDE MAINTENANCE SERVICES.

GEXCEL IS NOT RESPONSIBLE FOR THE OPERATION OR FAILURE OF OPERATION OF THE LASER SCANNER OR ANY OTHER HARDWARE INCLUDED WITH OR RELATED TO THE INSTALLATION.

6. LIMITATION OF LIABILITY.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GEXCEL OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS), ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, OR THE PROVISION OF OR FAILURE TO PROVIDE MAINTENANCE SERVICES, EVEN IF GEXCEL OR AN AUTHORISED GEXCEL'S REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS AGREEMENT.

IN NO EVENT SHALL GEXCEL'S TOTAL LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SOFTWARE, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED THE AMOUNT PAID TO GEXCEL FOR USE OF THE SOFTWARE GIVING RISE TO THE CLAIM, IF ANY. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

GEXCEL SHALL HAVE NO LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF THE ACTION.

7. CONFIDENTIALITY.

The term "Confidential Information" shall mean any information disclosed by either party (the "Disclosing Party") to the other party (the "Receiving Party") in connection with this EULA which is disclosed in writing, orally or by inspection and is identified as "Confidential" or "Proprietary." Notwithstanding the foregoing, the following is "Confidential Information" of Gexcel: (a) any information, in whatever form, disclosed by Gexcel that relates to the Software and that is not publicly known; (b) any benchmark tests pertaining to the Software; and the Software license Key provided by Gexcel to You hereunder. The Receiving Party shall treat as confidential all Confidential Information received from the Disclosing Party, shall not use such Confidential Information except as expressly permitted under this Agreement, and shall not disclose such Confidential Information to any third party without the Disclosing Party's prior written consent. The Receiving Party shall use the same degree of care to protect the Confidential Information of the Disclosing Party against unauthorized use or disclosure that it takes with its own confidential information of like nature, but in no event less than a reasonable degree of care. Notwithstanding the above, the restrictions of this Section shall not apply to information that: (a) was independently developed by the Receiving Party without any use of the Confidential Information of the Disclosing Party; (b) becomes known to the Receiving Party, without restriction, from a third party without breach of this Agreement and who had a right to disclose it; (c) was in the public domain at the time it was disclosed or becomes in the public domain through no act or omission of the Receiving Party; or (d) was rightfully known to the Receiving Party, without restriction, at the time of disclosure. Without terminating any restrictions or obligations of this Section, a Receiving Party is not prohibited hereunder from disclosing Confidential Information of the other party if such information is disclosed pursuant to the valid order or requirement of a court, administrative agency, or other governmental body of competent jurisdiction; provided, however, that the disclosure is strictly limited to the extent necessary to comply with such order and, provided further that, the Receiving Party shall provide prompt notice thereof to the Disclosing Party and shall use commercially reasonable efforts to obtain a protective order or otherwise prevent public disclosure of such information.

8. TERMINATION.

This Agreement is effective until terminated. Without prejudice as to any other of its rights, Gexcel may terminate this Agreement immediately and without notice if You breach any provision of this Agreement or of any other agreement between You and Gexcel. Upon termination or expiration of this Agreement: (a) any fees owed to Gexcel under this Agreement before such termination or expiration will be immediately due and payable; (b) all licenses granted to You in this Agreement will immediately cease; and (c) You must promptly discontinue all use of the Software, uninstall and erase all copies of the Software from Your computers, and return or, at the option of Gexcel, destroy all copies of the Software in Your possession or control. Sections 1.3, 1.4, 4, 5, 6, 7, 8 and 9 will survive termination or expiration of this Agreement for any reason.

9. EXPORT RESTRICTIONS.

You shall not export, directly or indirectly, the Software (or any component part or output thereof) to any country in violation of any law or regulation, including without limitation any law or regulation of the U.S. Government or any agency. You are solely responsible for complying with all applicable export and import regulations and obtaining all necessary export and import licenses or permits for the Software. You agree to defend, indemnify and hold Gexcel harmless against any liability (including attorneys' fees) arising out of Your failure to comply with the terms of this paragraph.

10. USE OF CUSTOMER'S NAME.

You acknowledge that Gexcel may use Your company name on Gexcel's customer list provided to third parties.

11. GENERAL.

This Agreement shall be governed by the laws of Italy without regard to conflicts of law principles. The Courts of Italy will have exclusive jurisdiction over any disputes arising under this Agreement and the parties hereby irrevocably consent to the personal jurisdiction of such courts. In the event any proceeding or lawsuit is brought by the parties in connection with this Agreement, the prevailing party in such proceeding or lawsuit will be entitled to receive its costs and reasonable attorneys' fees. If any provision of this Agreement is held to be unenforceable, that provision will be modified so as to be enforceable, or if such modification is not possible, will be removed and the remaining provisions will remain in full force.

No failure or delay by either party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy. Without limiting the foregoing, terms and conditions on any purchase orders or similar materials submitted by You to Gexcel shall be of no force or effect. Neither this Agreement nor any rights or Your obligations under this Agreement may be assigned by You in whole or in part without the prior written consent of Gexcel (except in connection with a merger or acquisition, or the sale of all or substantially all of such party's assets), and any attempted assignment or transfer by You in violation of the foregoing will be null and void. This Agreement, is the complete and exclusive statement of the agreement between the parties and supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. This Agreement is in the English language only, which language will be controlling in all respects.