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DURANGO COMMERCIAL SOFTWARE LICENSE AGREEMENT

This Agreement is between Diffraction International, Ltd., a corporation of the State of Minnesota having an office at 5810 Baker Road, Suite 225, Minnetonka, MN 55345-5982 hereinafter called "Diffraction International" and the individual or single legal entity in receipt of a Hardware Key (Exhibit B) and submitting a Durango License Registration Form Exhibit C) to obtain a License Authorization Code, hereinafter called "Licensee".

  1. The term "Program" as used herein shall refer to the software or computer program known as the DURANGO program developed by Diffraction International and as described in Exhibit A attached. Diffraction International grants to Licensee a non-assignable, non-transferrable license to use the Program by individuals, under the direction of a single Technical Program User designated by Licensee, and listed in Exhibit C attached, and who shall be the sole technical contact between Licensee and Diffraction International.
  2. No title or ownership of the Program is transferred to the Licensee. The Licensee will not sell the rights to the Program, but shall be free to license Program to unlimited end users under the terms and conditions set forth herein. All copies of the Program provided under the license shall carry a Copyright notice as designated on the original Program, or as designated by Diffraction International, and shall include all of the terms of the Electronic End User License Agreement.
  3. Use of the Program's data acquisition and import features is protected using a hardware device called a "Hardware Key" and a 16-character "License Authorization Code". The Hardware Key permits only one copy of the Program to acquire data at a time. Attempting to acquire data on more than one computer at a time or attempting to defeat the intention of the Hardware Key is a violation of Diffraction International’s Copyright. The Hardware Key must be physically moved from one computer to another, so that only one copy of the program can acquire data at one time. The Hardware Key supplied with the Program is valued at the full license fee charged to the Licensee, so if the Hardware Key is lost or stolen, it will not be replaced without payment of the full license fee.
  4. The effective date of this Agreement shall be the date on which a completed License Registration Form is received and accepted by Diffraction International. Unless sooner terminated, as otherwise provided for in this Agreement, the term of this Agreement shall be from the effective date until terminated by either party for any reason, by written notice given at least 90 days prior to termination. Upon termination the Hardware Key shall be returned to Diffraction International. Licensee agrees it will not reverse engineer, or in any way attempt to duplicate or defeat the Hardware Key, and will use only Hardware Keys provided under, and used in compliance with the terms of this Agreement.
  5. Licensee will make payment to Diffraction International according to Diffraction International's current published price list or according to other written price quotation provided by Diffraction International. A License Authorization Code will be provided to the Licensee upon receipt of a completed Durango License Registration Form and check, bank draft, or wire transfer to the bank account of Diffraction International or upon receipt and acceptance of Licensee’s purchase order with current credit approval. All payments must be in U.S. dollars.
  6. Diffraction International may change the amount of payments for additional Hardware Keys from time to time.
  7. Licensee acknowledges and agrees that the Program constitutes valuable property and contains trade secrets of Diffraction International. Licensee therefore agrees that Diffraction International can provide restrictions on use and sale of the Hardware Key, and the Licensee further agrees that it will not reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Program. The acquiring of data by the Program is agreed to be through use of the supplied Hardware Key only.

WARRANTY AND SOFTWARE SUPPORT

  1. Software Support is limited to users with a current Durango Technical Support and Upgrade Agreement. No support is provided for obsolete versions of the Program.
  2. Effort is made to find and fix "bugs" before a new version of the Program is released. Diffraction International reserves the right to provide periodic bug fix releases, which may be downloaded from Diffraction International’s website. If a bug is discovered, Diffraction International expects that Licensee will report the existence of a bug with a sufficient amount of information so that Diffraction International can provide an analysis of the problem. If the bug causes a significant degradation of Program performance within the period of an active Licensee’s Technical Support and Upgrade Agreement, the bug fix will be provided free of charge. Fixes will not be provided if the problem is traced to incompatible, non-standard, or insufficient hardware, or use of outdated versions of an operating system or hardware drivers.
  3. Diffraction International will replace or repair all hardware products, at its discretion, in the event that the manufacturer does not honor its warranty, and the hardware was delivered by Diffraction International less than 30 days from the time the defect was discovered.
  4. For a period of two years following hardware delivery by Diffraction International, and if: (a) the Program Technical Support and Upgrade Agreement has remained current, (b) the computer system has properly been running a current version of the Windows operating system, (c) the frame grabber card, DAC card and Hardware Key pass their functional tests using the respective manufacturer’s installed software, and (d) any additional hardware added by the user has been removed, and yet the Program repeatedly crashes or fails to run properly, the problem will then be attributed to the Program and Diffraction International agrees to resolve the problem.
  5. THE FOREGOING WARRANTIES IN THE PROVISIONS OF PARAGRAPHS 9, 10 AND 11 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL DIFFRACTION INTERNATIONAL BE LIABLE TO LICENSEE, OR THOSE LICENSED BY LICENSEE, WITH RESPECT TO ANY CONSEQUENTIAL LOSS OR DAMAGE CAUSED BY OR RESULTING FROM THE PROGRAM OR ANY OTHER ACTIVITY UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY INTERRUPTION OF SERVICE, INABILITY TO USE EQUIPMENT, LOST DATA, LOSS OF BUSINESS, OR ANTICIPATORY PROFITS, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, WHETHER SUCH DAMAGES ARE BASED UPON A BREACH OF IMPLIED WARRANTIES, BREACH OF CONTRACT, NEGLIGENCE, STRICT TORT, OR ANY OTHER LEGAL THEORY.
  6. Program upgrades are available only as part of an Annual Technical Support and Upgrade Agreement, and only when a single Technical Program User has been appointed by Licensee. The Annual Support and Upgrade Agreement is mandatory for the first year from the effective date of this Agreement, and optional thereafter. Should the Annual Support and Upgrade Agreement be allowed to lapse, renewal by Licensee will require full payment from the date of expiration. Diffraction International reserves the right to alter terms and/or pricing of the Support and Upgrade Agreement in subsequent years.
  7. Encrypted within each License Code is a Machine ID, a Hardware Key serial number, a version expiration date and a code expiration date. A License Code will not function with a different computer, with a different hardware key, for Durango versions released after the version expiration date, or at any time after the code expiration date. Diffraction International will promptly issue additional license codes for use on multiple computers, or to extend the code expiration date, provided Licensee is in compliance with the terms of this Agreement. Diffraction International will issue a new license code for version update only if Licensee maintains a current Support and Upgrade Agreement.
  8. This Agreement shall be interpreted under the laws of the State of Minnesota.
  9. Any notices required or permitted to be given under this Agreement must be in writing and delivered to the appropriate party at the address set forth above or at such address as a party may designate by written notice to the other party.
  10. The Licensee designates the Technical Program User listed in Exhibit C to receive all updates and serve as the Licensee’s authorized representative on matters that concern installation, use, and update of the Program.
  11. This Agreement embodies the entire understanding between the parties and cannot be modified or changed except by a writing signed by both parties.
  12. A waiver of a breach of any term of this Agreement shall not be deemed a waiver of future breaches, and if any of the provisions of this Agreement are declared void, such declaration shall have no effect on the remaining provisions.
  13. Licensee agrees that the Program will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations.
  14. Exhibits A, B, C and Technical Support and Upgrade Agreement attached hereto are integrated into and made a part of this Agreement.
Hardware Keys

EXHIBIT A
Program — The Program consists of the Durango interferometry data acquisition and analysis program, including online documentation.


EXHIBIT B
Hardware Key — Restricting use of Durango data acquisition and import functions to one simultaneous user having a valid License Authorization Code.


EXHIBIT C
Durango License Registration Form — This electronic form designates a Technical Program User to receive all updates to the Program and to represent the Licensee in all technical communications concerning the installation, use, debugging and updating of the Program. This form must be emailed or printed and faxed or mailed to Diffraction International after installation of the Durango Program and Hardware Key and prior to receiving a License Authorization Code.

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Page updated: 26 September 2018

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