End User License Agreement

END USER LICENSE AGREEMENT

Use of the computer software program that is a part of this product (the “Software“) is conditioned upon acceptance of this End User License Agreement (“Agreement“). This Agreement is between CheckSum LLC, a Delaware Limited Liability Corporation (“CheckSum“) and the user, individually and as an authorized representative of the purchasing entity identified in the applicable order documentation (“Licensee“). The Software is licensed and not sold to Licensee.

 

  1. Subject to Licensee’s payment of the applicable fees for the Equipment, which includes a royalty for the Software, and compliance with the terms hereof, CheckSum grants to Licensee, and Licensee accepts from CheckSum, a non-exclusive, non- transferable, perpetual license to use the Software (a) in machine readable, object code form only, solely for Licensee’s own internal purposes; and (b) solely as a part of the CheckSum testing equipment on which it is provided (the “Equipment“). Licensee may transfer ownership of the Equipment, including the right to use the Software, to another party so long as that party agrees to accept the terms and conditions of this Agreement.

 

  1. Except as expressly provided herein, Licensee may not (a) use, assign or transfer any rights in the Software; (b) translate, reverse engineer, attempt to derive the source code of or decrypt, decompile or disassemble the Software, except to the extent applicable law specifically prohibits such restriction (and then only to the extent permitted by applicable law and after written notice has been given to CheckSum); or (c) alter or remove any all-copyright notices and proprietary legends in the

 

  1. CheckSum may require that Licensee send a written certification of compliance with the terms and conditions of this Agreement within thirty (30) days of CheckSum’s request, and/or permit CheckSum to conduct a compliance inspection of any site where the Software and Equipment is located upon reasonable notice and in such a manner as to not unreasonably interfere with Licensee’s normal business activities.

 

  1. The Software is proprietary to CheckSum, and all right, title and interest in the Software remains solely with CheckSum or its authorized suppliers. No title to or ownership of the Software or to any intellectual property or proprietary rights therein is transferred to Licensee.

 

  1. Licensee assumes full responsibility for (a) the selection of the Software; (b) the proper installation and use of the Software; (c) verifying the results obtained from the use of the Software; and (d) taking appropriate measures to prevent loss of data, protect against software viruses and prevent software security breaches. CheckSum does not warrant that the quality or performance of the Software will meet Licensee’s requirements, achieve any particular results, or operate free from error.

 

  1. LICENSEE ACKNOWLEDGES AND AGREES THAT THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE SOFTWARE IS AT YOUR SOLE RISK AND DISCRETION. CHECKSUM AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTEES REGARDING THE SOFTWARE, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHERMORE, CHECKSUM AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT (A) THE SOFTWARE WILL MEET YOUR REQUIREMENTS; (B) THE SOFTWARE WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE OR ERROR-FREE; AND (C) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY LICENSEE THROUGH THE SOFTWARE WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS. LICENSEE RELEASES ANY CLAIM WITH RESPECT TO ANY BUG, DEFECT, VIRUS, SECURITY BREACH, DEFICIENCY OR ERROR IN THE SOFTWARE, DOCUMENTATION OR ANY OTHER ITEMS OR SERVICES FURNISHED HEREUNDER.

 

  1. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL CHECKSUM BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE LICENSED SOFTWARE HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF CHECKSUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL CHECKSUM’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT of $10,000 USD. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

 

  1. This Agreement is governed by the laws of the State of Washington, without reference to its choice of law principles. The provisions of the U.N. Convention on Contracts for the International Sale of Goods do not apply. Licensee consents to the exclusive jurisdiction of the courts located in King County, Washington, in connection with any action arising out of or related to this Agreement.

 

  1. The failure of CheckSum to enforce any provision of this Agreement will not be construed as a waiver of the provision. This Agreement may not be modified or altered except by a written agreement executed by authorized representatives of CheckSum and Licensee. LICENSEE AGREES THAT THESE ARE THE ONLY APPLICABLE TERMS OF AGREEMENT BETWEEN LICENSEE AND CHECKSUM WITH RESPECT TO THE SOFTWARE.

 

  1. CheckSum may, in its sole at any time and for any or no reason, suspend or terminate this License and the rights afforded to Licensee hereunder with or without prior notice. Furthermore, if Licensee fails to comply with any terms and conditions of this Agreement, then this License and any rights afforded to Licensee hereunder shall terminate automatically, without any notice or other action by CheckSum. Upon termination of this Agreement, Licensee shall cease all use of the Software.