Scopr End User License Agreement

1.  Introduction

This is a License Agreement ("Agreement") between Scopr LLC, a Texas corporation ("Scopr"), and _______________________________________________ ("Customer"), in which Scopr grants Customer certain rights to use the software program XBow Server.

2.  Definitions

A.  "Program" shall mean the machine-readable object code of the computer software program or programs described in the Program Description attached as Attachment A to this Agreement, and such additional Releases of such programs as shall be made available by Scopr to Customer from time to time.

B.  "Release" shall mean any version of a Program or any materials which are made commercially available by Scopr at or after the delivery of a Program, including any software provided for the purpose of improving the functions or performance of the Program, expanding the capability or ease of operation of the Program, or for the purpose of fixing errors in program logic, together with Documentation.

C.  "Documentation" shall mean the user manual(s) and any other materials supplied or made available by Scopr for use with the Program.

D.  "Software" shall mean, collectively, the Program and Documentation.

E.  "License" shall mean a string of text containing an encoded license which enables the Program to operate in a specified configuration.

F.  "Delivery Date" shall mean the date that Scopr transfers or allows Customer to transfer a License for the Program to Customer's location by electronic mail or file transfer over a network.

G.  "Effective Date" shall mean the date upon which both parties have signed this Agreement.

H.  "License Fee" shall mean the fee for licensing the Program or Programs specified in this Agreement.

I.  "Software Support" shall mean support and maintenance services for Programs described in Attachment B to this Agreement.

J.  "Software Support Fee" shall mean the applicable annual fee due for Software Support in accordance with Section 7 of this Agreement.

K.  "Per Human Being" shall describe that form of software license which restricts the licensed software to being used by a specified maximum number of individual users, irrespective of whether such use is concurrent.

L.  "Platform" shall mean the combination of a particular type of computer and a particular operating system, or version of an operating system.

M.  "Initial Term" shall mean one (1) year from the Delivery Date.

N.  "Renewal Term" shall mean any terms subsequent to the Initial Term as defined in Paragraph 10(A).

3.  Items Provided by Scopr

A.  Scopr shall furnish Customer with the Software, as it is described in Attachment A.  Program will be made available to be downloaded in machine-readable object code form by electronic file transfer.  The Documentation will be delivered electronically as machine-readable files suitable for printing.  Customer may copy, print, or reproduce the Documentation without restriction, provided that all copyright and other proprietary notices are reproduced substantially similar to the originals.

B.  Scopr shall furnish to Customer one copy of the Program modules for each computer on which it is to run as designated in Attachment D.

C.  Scopr shall furnish to Customer a License which will enable the Program to operate in the configuration specified in Attachment D.

D.  Customer acknowledges and agrees that it has independently verified that the Software is appropriate for the purposes for which Customer intends to use it, and that Customer did not rely upon any skill or judgment of Scopr in such selection.

4.  Grants of License

A.  In consideration of Customer's one-time payment of the License Fee, Scopr grants to Customer a world-wide non-exclusive license for Customer's employees and contractors to install and use the Software for Customer's own direct internal business use in the configuration specified in Attachment D.

B.  Customer may make any additional copies of the Software to the extent necessary for use of the Program.  In addition, Customer may copy the Software for archival or backup purposes.  Customer shall reproduce and include copyright or other proprietary notices on any copies in substantially the same form as appears in or on the original copies provided to Customer.

C.  The Program is configured by Scopr to support the number of users specified in Attachment D.  The Program is licensed on a Per Human Being basis, with the maximum number of users permitted to use the server being that quantity specified in Attachment D.  Customer understands that the Program enforces this limitation, and that any failure of the Program to perform in conformance with the Documentation in response to users in excess of the number specified in Attachment D is not a defect in the Program.

D.  Scopr hereby reserves all rights in and to the Software that are not specifically granted by this License Agreement.

5.  Software Support

A.  In consideration of Software Support Fees paid by Customer, Scopr will provide Software Support as described in Attachment B.  The Software Support Fee for the Initial Term is included in the License Fee.

B.  During the Initial Term, and any Renewal Terms for which Customer has paid Software Support Fees, Scopr will supply, or make available, at no additional charge to Customer, any new Releases.

6.  Delivery Schedule

A.  Scopr shall deliver or make available to Customer via electronic distribution the items to be furnished under Section 3 of this Agreement upon receipt from Customer of a bona fide purchase order or payment or combination thereof representing the full License Fee.

7.  License and Software Support Fees

A.  License Fees.  The one-time License Fee is based on the total number of users the Program is configured to support, in accordance with the pricing schedule set forth in Attachment C.  The License Fee covers Customer's installation, copying, and use of the Software.

B.  Software Support Fees.  The License Fee includes the Software Support Fee for the Initial Term of this Agreement.  If Customer elects to purchase Software Support for any subsequent Renewal Terms, then the Software Support Fee due for such Renewal Terms shall be the support fee which Scopr charges its new customers as of the date Scopr receives Customer's purchase order for support renewal.  Payment of Support Renewal Fees must be received by Scopr no later than thirty (30) calendar days following the end of the current Initial Term or Renewal Term; if it is not, Scopr may, at its sole discretion, impose a 10% support reinstatement surcharge on the Software Support Fee.

C.  Additional Users.  Customer may increase the number of users the Program is configured to support by paying an additional one-time License Fee for each additional user.  For the Initial Term of this Agreement, the additional License Fee shall be in accordance with the pricing schedule in Attachment C.  For any Renewal Terms, the additional License Fee shall be the then-current License Fee Scopr charges its new customers.  In either case, the Support Fee portion of the additional License Fee will be pro-rated down so as to extend only to the anniversary of the Delivery Date.

D.  Per Human Being Licensing.  It is the intention of the parties that the License Fee is paid on a Per Human Being basis, as described in Sections 2(K) and 4(D) of this Agreement.  The parties acknowledge that it is possible for one human to log onto two systems at a site, resulting in the appearance of two users, although the parties intend that Customer pay for only one license is such case.

8.  Warranties and Indemnification

A.  Scopr warrants that Scopr has the legal right to grant Customer the license as set out in this Agreement, and that the Software does not infringe any third-party intellectual property or other rights.

B.  Scopr warrants that there are no pending or threatened lawsuits concerning any aspect of the Software and that the Software has not been published in such a way as to lose any of its copyright protection.

C.  Scopr warrants that the Program is in substantial compliance with the Program specifications and descriptions referred to in Attachment A and the Documentation; provided, however, that Scopr shall not be liable under this warranty if Customer has failed to incorporate all upgrades provided to Customer by Scopr.

D.  Scopr's liability under the warranties set forth in clauses A, B, and C of this Section 8 is limited to the License and Software Support Fees paid to Perforce by Customer under this Agreement.

E.  DISCLAIMER OF WARRANTIES.  WITH THE EXCEPTION OF THE WARRANTIES SET FORTH ABOVE, SCOPR PROVIDES NO WARRANTY WHATSOEVER ON ANY PROGRAM HEREUNDER, EXPRESS, IMPLIED OR OTHERWISE.  EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, SCOPR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES WITH RESPECT TO THE PROGRAM, AND ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

F.  NO CONSEQUENTIAL DAMAGES.  EXCEPT AS SET FORTH IN PARAGRAPHS 8(G) AND 13(E) BELOW, NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS AND LOSS OF PROFITS), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

G.  Notwithstanding any other provision of this Agreement, Scopr shall defend, indemnify and hold harmless Customer and its officers, directors, shareholders, employees, accountants, attorneys, agents, affiliates, subsidiaries, successors and assigns against any claim or threat of claim that the Software infringes any intellectual property right of any third party.  Scopr shall pay the court costs, legal fees and litigation expenses as they are incurred, and any damages finally awarded or settlement agreed upon, resulting from any such claim or threat of claim, provided that Customer (i) promptly gives Scopr written notice of any such claim, (ii) gives Scopr full authority to defend any such claim, and (iii) provides Scopr with all information and assistance Scopr requests in connection with such defense.

H.  If a temporary or permanent injunction is obtained against the use of any part of the Software for the reason that it infringes any third party's intellectual property rights, Scopr shall, at its option and expense, either (i) procure for Customer the right to continue to use the Software, or (ii) modify the Software so that it becomes non-infringing.  If Scopr selects the second option, Scopr's obligation to keep the Software in substantial compliance with the Documentation shall remain unaffected.

I.  EXCLUSIVE REMEDY.  THE PROVISIONS OF THIS SECTION 8 STATE THE EXCLUSIVE LIABILITY OF SCOPR, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY CLAIM OF PATENT, COPYRIGHT, OR TRADE SECRET INFRINGEMENT.

9.  Intellectual Property

A.  Customer acknowledges and agrees that it obtains no ownership rights in the Software under the terms of this Agreement, and that Scopr has and retains all right, title, interest and ownership in and to the Software, and in any copies or updates of the Software whether made by Customer or Scopr.

B.  The Software constitutes proprietary information and trade secrets of Scopr, whether or not any portion of the Software is or may be the subject of a valid copyright or patent.

C.  Customer may not alter any proprietary markings on the Software, including copyright, trademark, trade secret, and patent legends.

D.  Any authorized copies of the Software made by Customer shall contain a reproduction or equivalent of the copyright notice or other proprietary markings appearing on the Program and Documentation delivered by Scopr.

E.  Customer may not decompile, disassemble, or reverse-engineer the Program.

F.  Scopr shall retain the copyright to all enhancements to the Software.

10.  Term and Termination

A.  The Initial Term and each subsequent Renewal Term of the Agreement shall be renewed automatically for subsequent one-year terms ("Renewal Terms") unless either party notifies the other in writing, at least thirty (30) days prior to the expiration of the current Initial or Renewal Term, of its intent to cancel the renewal.  The renewal of this Agreement pursuant to this provision shall not be considered a renewal of Customer's Software Support for the Renewal Term; Software Support must be expressly renewed by Customer as set forth in paragraph 7(B) of this Agreement.

B.  Either party shall have the right to terminate this Agreement in the event that the other party breaches its obligations under sections 9, 10, or 12 of this Agreement.  Intent to terminate shall be made by a written notice setting forth the details of the breach.  Termination shall become effective thirty (30) days from the date that the notification of intent to terminate was given, unless the breaching party has corrected the breach prior to the end of that thirty (30) day period.

C.  If this Agreement is terminated by Scopr pursuant to Paragraph 10(B), Scopr may, at its sole discretion, revoke the license granted under Paragraph 4(A) of this Agreement.  If Scopr notifies Customer in writing that its License has been revoked, Customer shall, within fifteen (15) days of such notice, (i) discontinue all use of the Software and (ii) certify to Scopr in writing that it has complied with the requirements of this Paragraph 10(C).

D.  Notwithstanding clause B above, either party shall have the right to terminate this Agreement effective immediately if a petition of bankruptcy is granted against the other party, the other party makes an assignment for the benefit of creditors, or the other party admits to being unable to meet its obligations as they come due; and either party shall have the right to terminate this Agreement effective immediately if a petition of bankruptcy is filed by or against the other party and if such petition is not dismissed by the bankruptcy court within sixty (60) days after its filing.  Intent to terminate shall be made by a written notice to the party by or against which bankruptcy is filed.

E.  Survival Provisions.  The parties' rights and obligations under Sections 2, 8, 9, 11, 12, and 13 of this Agreement survive any termination or expiration of this Agreement.  The parties' rights and obligations under Section 4 of this Agreement survive any termination or expiration of this Agreement, except termination pursuant to Paragraph 10(B) of this Agreement.  Upon any termination or expiration of Agreement, all rights granted by Scopr to Customer, except those mentioned in this paragraph, shall revert to Scopr.

11.  Arbitration and Mediation

A.  With the exception of Section 13(E) below, if any dispute arises under the terms of this Agreement, the parties agree to select a mutually agreeable neutral third party to help them mediate it.  If the mediation is unsuccessful, the parties agree that the dispute shall be decided by binding arbitration under the rules issued by the American Arbitration Association.  The decision of the arbitrator shall be final.  Costs and fees (other than attorneys fees) associated with the mediation or arbitration shall be shared equally by the parties.  Each party shall be responsible for its attorneys' fees associated with arbitration.

12.  Assignment and Delegation

A.  Neither party may sell, transfer, assign, delegate, or subcontract any rights or obligations under this Agreement without the prior written consent of the other party.  Consent shall not be unreasonably withheld.

B.  Notwithstanding clause A above, if a party sells or transfers to a single entity all or substantially all of its business to which this Agreement relates, that party may, without the other party's consent, assign or delegate its rights or obligations under this Agreement to that entity.

C.  When an assignment or delegation is made pusuant to clause B above, Scopr will provide a License to the transferee upon receipt of copies of properly executed documents which effect such assignment or delegation.

13.  General

A.  Applicable Law.  This Agreement shall be construed pursuant to substantive law of the State of Texas, excluding any choice of law rules.

B.  Taxes.  Scopr shall be entitled to collect from Customer, in addition to the other amounts payable under this Agreement, all local, state and federal excise, sales, use, personal property, gross receipts and similar taxes (excluding payroll taxes and taxes imposed on or measured by Scopr's net income) levied or imposed by reason of the transactions under this Agreement.  Customer shall, upon demand, pay to Scopr an amount equal to any such tax(es) actually paid or required to be collected or paid by Scopr.

C.  Public Reference.  Customer consents to the public use of its name as a customer of Scopr, unless Customer notifies Scopr in writing that it withholds such consent.

D.  Modification.  This Agreement may not be modified or amended except by written notice which is signed by authorized representatives of each of the parties.

E.  No Waiver.  The failure of either party to exercise any right or the waiver by either party of any breach shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same of any other term of the Agreement.

F.  Equitable Remedies.  The parties recognize that money damages may not be an adequate remedy for any breach or of any obligation hereunder by Customer involving intellectual property or use of the Program beyond the scope of the license granted by this Agreement.  The parties therefore agree that in addition to any other remedies available hereunder, by law or otherwise, Scopr and any third party from whom Scopr has licensed software or technology may be entitled to seek injunctive relief against any such continued breach by Customer of such obligations.

G.  Exclusive Jurisdiction and Venue.  Any cause or action arising out of or related to this Agreement, including an action to confirm or challenge an arbitration award, may only be brought in the courts of applicable jurisdiction in Texas at Collin County, and the parties hereby submit to the jurisdiction and venue of such courts.

H.  Written Notice.  Any written notice from one party to the other required by this Agreement shall be deemed made on the date of mailing if sent by certified mail or overnight courier and addressed to the address specified below.  Written notice sent by any other means shall be deemed made on the date it is received by the party to whom it is directed.  Notice sent by facsimile or by electronic mail shall not be deemed "written notice" as contemplated by this Agreement.

I.  Entire Agreement.  This Agreement, including its Attachments, constitutes the sole and entire agreement of the parties with respect to the subject matter hereof and supersedes any prior oral or written promises or agreements.  There are no promises, covenants or undertakings other than those expressly set forth in this Agreement.

J.  No Election of Remedies.  The pursuit by either party of any remedy to which it is entitled at any time shall not be deemed an election of remedies or waiver of the right to pursue any other remedies to which it may be entitled.

K.  Independent Contractors.  Nothing is this Agreement shall be deemed or construed by the parties or by any other entity to create an agency, partnership or joint venture between Customer and Scopr.

L.  Severability.  If any provision of this Agreement or any Attachment hereto is held invalid or otherwise unenforceable, the enforceability of the remaining provisions of this Agreement and the Attachments will not be impaired thereby.

M.  Government Regulations.  In the event of any conflict between the provisions of this Agreement and any statute of the United States government, or any regulation of any agency of the United States government, the provisions of such statute or regulation shall take precedence.

N.  Attachments.  Attachments A, B, C, and D hereto are incorporated into and made part of this Agreement.

14.  Signatures

Scopr and Customer have read this Agreement and agree to be bound by its terms, in witness whereof the authorized representatives of each party have affixed their signatures below.

Attachment A: Program Description

The Program to be delivered as per this Agreement, XBow Server, is a <TBD>

The Program functions as described in the XBow Server User's Guide.

Scopr maintains a published list of Platforms on which the Program is supported.

Attachment B: Terms and Conditions of Support

1.  Services Provided

In consideration of the Software Support Fee(s) paid by Customer and Customer's agreement to meet the responsibilities set forth below, Scopr shall provide to Customer the following Technical Assistance and Maintenance services:

Technical Assistance

A.  Scopr shall assist Customer in diagnosing errors and malfunctions which occur when the Program is used by Customer.

B.  Scopr shall provide support services to Customer to attempt to correct diagnosed errors and malfunctions.  Scopr is not responsible for errors or malfunctions caused by any hardware or any third-party software or operating system.

C.  All Technical Assistance shall be performed between 9:00 a.m. and 5:00 p.m., Central Time, Monday through Friday, holidays excluded.

D.  Scopr will provide Technical Assistance by email or telephone.

E.  Scopr will make a reasonable attempt to respond to requests for Technical Assistance from Customer.

Maintenance

F.  Scopr will make each Release of the Program published during the term of the Software Support Agreement available to Customer for download as provided in Paragraph 3(A).  All such downloads must be initiated by Customer.  Scopr shall make best efforts to provide Releases that implement corrections and shall make best efforts to assist Customer in using the Program in a way that can avoid diagnosed errors, malfunctions, and defects.

G.  Customer is not entitled to receive any new software from Scopr which Scopr does not deem to be a part of the Program.  For example, Customer is entitled to all updates and upgrades to the Program, but should Scopr release another software package with related but different functionality under a different product name, Customer would not be entitled to such software as an update or upgrade to the Program.

H.  Customer is entitled to download, at no additional cost, version of the Program for any additional Platforms available from Scopr as listed in Scopr's published offering of products, provided that the aggregate configuration of users supported among all servers does not exceed the total number of purchased Licenses.

I.  From time to time, Scopr may choose to cease maintenance of certain Platforms.  Scopr will do this in two steps.  First, the Platform will be designated as "Obsolescent," which means Scopr will make new Releases available for that Platform only upon explicit customer request.  No less than one year after being designated "Obsolescent," the Platform will be designated as "Discontinued," which means Scopr will no longer make new Releases available for that Platform at all.  Platforms shall be designated "Obsolescent" or "Discontinued" on Scopr's web site; it shall be Customer's responsibility to check the web site for changes in designation of any given Platform.

J.  The designation of a Platform as either "Obsolescent" or "Discontinued" shall not affect Scopr's obligation to provide Technical Assistance as set forth in paragraphs A through E of this section.

2.  Customer Responsibilities

A.  Customer will make its best commercially reasonable efforts to remain current with the latest Release of the Program provided by Scopr.

B.  Customer shall designate the appropriate number of individuals as contacts for Software Support, as agreed by the parties.

C.  In the event that Customer fails to meet its responsibilities as set forth in the preceding two paragraphs, Scopr's sole remedy shall be that it may, at its option, decline to provide technical support until Customer has complied.

Attachment C: Price Schedule

1. License Fees

The License Fee is based on the number of users purchased under this Agreement, according to the table below:

2.  Software Support Fees

Initial Software Support Fees comprise $50 of the above license fees at all price tiers.  Support can be renewed for subsequent years, at the pricing then in effect.

Attachment D: Licensed Platform Configuration

The Licensed Configuration for _________________________________________________ (Customer), detailing the specific Platforms for which the Program will be supplied and to which this Agreement applies, is as follows: