BEULA

IOMETICS, LLC PUBLIC BETA TEST LICENSE AGREEMENT
Redistribution Or Rental Not Permitted

BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING THE ioMetics, LLC BETA SOFTWARE PRODUCTS WITH WHICH THIS LICENSE AGREEMENT WAS PROVIDED (THE "PRODUCTS"), THE INDIVIDUAL OR ENTITY LICENSING THE PRODUCTS ("LICENSEE") IS CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, LICENSEE MUST NOT INSTALL OR USE THE PRODUCTS. IF LICENSEE HAS ALSO RECEIVED A PRINTED PRIVATE BETA TEST LICENSE AGREEMENT THAT CONTAINS TERMS WHICH VARY FROM THE TERMS IN THIS AGREEMENT, THEN THE PRINTED LICENSE AGREEMENT GOVERNS THE USE OF THE PRODUCTS.

1. LICENSE GRANT. ioMetics, LLC grants Licensee a non-exclusive and non-transferable license to use the executable code version of the Products free of charge for evaluation and trial purposes only for a limited time. Licensee may not use the Products for any purpose other than trial and evaluation, including without limitation, operation of its business, development of other applications for ongoing use, or providing services to others. THIS PRODUCTS MAY CONTAIN CODE THAT DISABLES MOST OF ITS FEATURES AFTER THE TIMEOUT DATE. PLEASE SEE THE README FILE INCLUDED WITH THE PRODUCTS FOR THE TIMEOUT DATE. Licensee may make a limited number of copies of the Products as required to conduct its evaluation, provided each copy contains the original proprietary notices and provided the use of any such copy is governed by the terms of this Agreement. This Agreement does not entitle Licensee to hard-copy documentation, support or telephone assistance. While ioMetics, LLC intends to distribute a commercial release of the Products, ioMetics, LLC reserves the right at any time not to release a commercial release of the Products or, if released, to alter prices, features, licensing terms, or other characteristics of the commercial release. Any third party software provided together with a Products third party's electronic or printed license agreement is included for use at Licensee's option, and any use of such software shall be governed by the third party's license agreement and not by this Agreement, except to the extent that this Agreement indicates otherwise with respect to specific third party software.

2. TERM AND TERMINATION. The license granted under this Agreement shall terminate on the earlier of (i) the Timeout Date or (ii) 30 days following ioMetics, LLC’s release of a commercial version of the Products. The license will automatically terminate earlier if Licensee fails to comply with the limitations described herein. Licensee must destroy all copies of the Products upon termination.

3. PROPRIETARY RIGHTS. Title, ownership rights, and intellectual property rights in the Products shall remain in ioMetics, LLC and/or its suppliers. Licensee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with ioMetics, LLC's or its suppliers' ownership of or rights with respect to the Products. The Products are protected by copyright and other intellectual property laws and by international treaties. Title and related rights in the content accessed through the Products are the property of the applicable content owner and are protected by applicable law. The license granted under this Agreement gives Licensee no rights to such content. Any copy shall contain all of the notices regarding proprietary rights that are contained in the Products originally delivered by ioMetics, LLC.

4. RESTRICTIONS. Except as otherwise expressly permitted in this Agreement, and in addition to any other restrictions herein, Licensee may not: (i) modify or create any derivative works of the Products or documentation, including translation or localization; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Products (except to the extent applicable laws specifically prohibit such restriction); (iii) redistribute, encumber, sell, rent, lease, sublicense, use the Products in a timesharing or service bureau arrangement, or otherwise transfer rights to the Products; (iv) copy the Products (except for an archival copy which must be stored on media other than a computer hard drive) or documentation; (v) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Products; (vi) modify any header files or class libraries in the Products; (vii) create or alter tables or reports relating to the database portion of the Products (except as necessary for operating the Products); (viii) publish any results of benchmark tests run on the Products or disclose Product features, errors or bugs to a third party without ioMetics, LLC’s prior written consent; (ix) use the data provided for use with any Products except in conjunction with the relevant Products; or (x) use the Products for any purpose other than trial and evaluation.

5. DISCLAIMER OF WARRANTY . THE PRODUCTS ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION THE WARRANTIES THAT IT IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCTS ARE BORNE BY LICENSEE. SHOULD THE PRODUCTS PROVE DEFECTIVE IN ANY RESPECT, LICENSEE AND NOT ioMetics, LLC OR ITS SUPPLIERS OR RESELLERS ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE PRODUCTS IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.

6. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ioMetics, LLC OR ITS SUPPLIERS OR RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, ioMetics, LLC'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED THE FEES LICENSEE PAID FOR THIS LICENSE (IF ANY), WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF ioMetics, LLC TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. ioMetics, LLC IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY THAT IS ACCESSED THROUGH THE PRODUCTS AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.

7. EXPORT CONTROL. Licensee agrees to comply with all export laws and restrictions and regulations of the United States or foreign agencies or authorities, and not to export or re-export the Products or any direct products thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. As applicable, each party shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to its own export of the Products from the U.S. Neither the Products nor the underlying information or technology may be downloaded or otherwise exported or re-exported (i) into any country subject to U.S. trade sanctions covering the Products, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Table of Denial Orders. By downloading or using the Products, Licensee agrees to the foregoing and represents and warrants that it complies with these conditions.

8. U.S. GOVERNMENT END USERS. The Product is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Product with only those rights set forth herein.

9. NOTICES. Any notice required or permitted hereunder shall be in English, in writing and shall be deemed to be properly given upon the earlier of (i) actual receipt by the addressee (including facsimile or e-mail) or (ii) 5 business days after deposit in the mail, postage prepaid, when mailed by registered or certified airmail, return receipt requested, or (iii) 2 business days after being sent via private industry courier to the respective parties at the addresses set forth in the Order Form or to such other person or address as the parties may designate in a writing. Notices to ioMetics, LLC shall be to the attention of ioMetics, LLC, support@iometics.net

10. MISCELLANEOUS. (a) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. (b) This Agreement may be amended only by a writing signed by both parties. (c) This Agreement shall be governed by the laws of the State of California, U.S.A., excluding its conflict of law provisions. (d) Unless otherwise agreed in writing, all disputes relating to this Agreement (excepting any dispute relating to intellectual property rights) shall be subject to final and binding arbitration in Williamson County, Texas, with the losing party paying all costs of arbitration. (e) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (f) If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect. (g) The controlling language of this Agreement is English. If Licensee has received a translation into another language, it has been provided for Licensee's convenience only. (h) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (i) The provisions of this Agreement which require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination. (j) Licensee may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein without the prior express written consent of ioMetics, LLC, which will not be unreasonably withheld. (k) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (l) If applicable, this Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. (m) Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control. (n) The relationship between ioMetics, LLC and Licensee is that of independent contractors and neither Licensee nor its agents shall have any authority to bind ioMetics, LLC in any way. (o) If any dispute arises under this Agreement, the prevailing party shall be reimbursed by the other party for any and all legal fees and costs associated therewith. (p) The headings to the sections of this Agreement are used for convenience only and shall have no substantive meaning.(q) Improvements or modifications to the software become the property of the vendor. (r) The LICENSEE agrees not to publish any information about the BETA version of the software.

11. LICENSEE OUTSIDE THE U.S. If Licensee is located outside the U.S., then the provisions of this Section shall apply. (i) The parties confirm that this Agreement and all related documentation is and will be in the English language. (ii) Licensee is responsible for complying with any local laws in its jurisdiction which might impact its right to import, export or use the Products, and Licensee represents that it has complied with any regulations or registration procedures required by applicable law to make this license enforceable.

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