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ACTION AGENT™ AND PAKRA INTEGRATED SOFTWARE SOFTWARE LICENSE AGREEMENT READ CAREFULLY: PAKRA, LLC, AN OHIO LIMITED LIABILITY COMPANY (“PAKRA”) LICENSES THE SOFTWARE IDENTIFIED AND DEFINED HEREIN (THE “SOFTWARE”) TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”).

BY SELECTING THE “I ACCEPT” BUTTON AT THE END OF THIS AGREEMENT OR BY COPYING, INSTALLING, UPLOADING, ACCESSING OR USING ALL OR ANY PORTION OF THE SOFTWARE YOU AGREE TO ENTER INTO THIS AGREEMENT. A CONTRACT IS THEN FORMED BETWEEN PAKRA AND EITHER YOU PERSONALLY, OR THE COMPANY OR OTHER LEGAL ENTITY FOR WHICH YOU ARE ACQUIRING THE SOFTWARE.

IF YOU DO NOT AGREE OR DO NOT WISH TO BIND YOURSELF OR THE ENTITY YOU REPRESENT TO THE TERMS OF THIS LICENSE AGREEMENT: (A) DO NOT COPY, INSTALL, UPLOAD, ACCESS OR USE THE SOFTWARE; AND (B) SELECT “I REJECT” AT THE END OF THIS AGREEMENT (WHICH WILL CANCEL THE LOADING, INSTALLATION AND ACCESS OF THE SOFTWARE).

COPYING OR USE OF THE SOFTWARE OR ANY ACCOMPANYING DOCUMENTATION EXCEPT AS PERMITTED BY THIS AGREEMENT IS UNAUTHORIZED AND CONSTITUTES A MATERIAL BREACH OF THIS AGREEMENT AND AN INFRINGEMENT OF THE COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS IN SUCH SOFTWARE AND DOCUMENTATION. IF YOU COPY OR USE ALL OR ANY PORTION OF THE SOFTWARE OR ITS USER DOCUMENTATION WITHOUT ENTERING INTO THIS AGREEMENT OR OTHERWISE OBTAINING WRITTEN PERMISSION OF PAKRA, YOU ARE VIOLATING COPYRIGHT AND OTHER INTELLECTUAL PROPERTY LAW. IN SUCH CASE, YOU MAY BE LIABLE TO PAKRA FOR DAMAGES, AND YOU MAY BE SUBJECT TO CRIMINAL PENALTIES.

1. DEFINITIONS.

1.1 “Access” means to use or benefit from using the functionality of the Software.

1.2 “Install” means to place a copy of Software onto a hard disk or other storage medium through any means (including without limitation use of an installation utility application accompanying the Software).

1.3 “Software” means the computer programs and systems in which this Agreement is embedded or that is delivered with this Agreement. If programs are delivered to You as part of a software package that includes a series of computer programs, the term Software shall include all programs delivered to You as part of that series. “Software” specifically includes the ACTION AGENT™, PAKRA CONSOLE™, PAKRA ANALYTIC™, and PAKRA INTEGRATED TRAINING™ software applications licensed to You by PAKRA in connection with this Agreement.

1.4 “User Documentation” means the explanatory printed or electronic materials that PAKRA makes available together with the Software, or after You Access the Software, including without limitation, license specifications, activation codes, license files, instructions on how to use the Software, and technical specifications.

1.5 “You” or “Your” means: (a) you personally (i.e., the individual who reads and is prompted to accept this Agreement) if you acquire the Software for yourself; or (b) the company or other legal entity for whom you acquire the Software, if you acquire the Software for a company or other legal entity.

2. SOFTWARE LICENSE.

2.1 Grant of License. PAKRA grants You a non-sublicensable, non-exclusive, non-transferable, limited license to use the Software in accordance with the applicable User Documentation, within the following license parameters: You may Access and use the Software from the Internet host server made available by PAKRA for Your electronic training and assessment activities as authorized by PAKRA, solely in connection with Your training, work-performance analysis and assessment activities for the number of subjects/users identified in Schedule A attached hereto. PAKRA’s license grant is conditioned on Your continuous compliance with all license limitations and restrictions described in this Agreement. If you violate any such limitations or restrictions, the license grant will automatically and immediately expire. The license descriptions in this Section 2 define the scope of rights that PARKA grants to You. Any usage of the Software outside the scope of the applicable license grant constitutes an infringement of PAKRA’s intellectual property rights as well as a material breach of this Agreement.

2.2 License Term. Subject to the terms and conditions of this Agreement, the license to use the Software expires upon completion of the training and assessment activities authorized by PAKRA and as communicated on PAKRA’s hosting server.

2.3 Upgrades. PAKRA may make available additional software that supplements or upgrades the Software. Such supplemental software shall be subject to the terms and conditions of this Agreement.

3. PERMITTED AND PROHIBITED ACTIONS.

3.1 Prohibited Actions. PAKRA does not permit any of the following actions, and You acknowledge that such actions shall be prohibited: 3.1.1Use. You may not Install, Access or otherwise copy or use the Software or User Documentation except as expressly authorized by this Agreement.

3.1.2 Reverse Engineering. You may not reverse engineer, decompile, or disassemble the Software.

3.1.3 Transfers. You may not distribute, rent, loan, lease, sell, sublicense, or otherwise transfer all or any portion of the Software or User Documentation, or any rights granted under this Agreement, to any other person without the written consent of PAKRA.

3.1.4 Hosting or Third Party Use. Except as expressly permitted by Section 2.1, You may not Install or Access, or allow third parties to Install or Access, the Software over the Internet, including without limitation, use in connection with a Web hosting or similar service, or make the Software available to third parties via the Internet on Your computer system or otherwise. The license granted hereby permits You or Your organization to conduct training and assessment activities for only the number of subjects/users agreeing to the terms and conditions of this Agreement, for Your sole and exclusive benefit and not for the benefit of third parties.

3.1.5 Notices. You may not remove, alter, or obscure any proprietary notices, labels, or marks from the Software or User Documentation.

3.1.6 Modifications. You may not modify, translate, adapt, arrange or create derivative works based on the Software or User Documentation for any purpose.

3.1.7 Circumvention. You may not utilize any equipment, device, software or other means designed to circumvent or remove any form of copy protection used by PAKRA in connection with the Software, or use the Software together with any, authorized code, serial number, or other copy protection device not supplied by PAKRA.

4. ALL RIGHTS RESERVED.

Except as expressly provided in this Agreement, all rights, title ownership and interest, including without limitation copyrights, in and to the Software and User Documentation remain with PAKRA. The structure, organization and code of the Software are valuable trade secrets of PAKRA, and You shall keep such trade secrets confidential. The Software and User Documentation are licensed, not sold.

5. LIMITED WARRANTY AND DISCLAIMERS.

5.1 Limited Warranty. PAKRA warrants that, as of the date on which the Software is made available by PAKRA and for the duration of your training and assessment activities with respect to the Software, the Software will provide the features and functions generally described in the User Documentation and within the electronic media on which the Software is made available. PAKRA’s entire liability and Your exclusive remedy under the limited warranty provided in this Section 5.1 will be, at PAKRA’s option, to attempt to correct or work around errors (through issuance of upgrades as set forth in Section 2.3 or otherwise), to replace the defective media on which the Software is furnished, if any, or to refund the license fees paid by you and terminate this Agreement. If PAKRA exercises its option hereunder to attempt to correct errors, such remedy will be provided during PAKRA’s normal business hours and will be processed within PAKRA’s normal processing and release cycle.

5.2 Disclaimer. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN SECTION 5.1 HEREOF, PAKRA MAKES AND YOU RECEIVE NO EXPRESS WARRANTIES. ANY STATEMENTS OR REPRESENTATIONS ABOUT THE SOFTWARE OR ITS FUNCTIONALITY IN THE USER DOCUMENTATION OR ANY COMMUNICATION WITH YOU CONSTITUTE TECHNICAL INFORMATION AND NOT AN EXPRESS WARRANTY OR GUARANTEE. IN ADDITION, PAKRA SPECIFICALLY DISCLAIMS ANY OTHER WARRANTY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MECHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, PAKRA DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SOFTWARE HAS ANY SECURITY FEATURES.

6. LIMITATION OF LIABILITY.

IN NO EVENT SHALL PAKRA HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, REVENUE, DATA OR COST OF COVER. IN ADDITION, IN NO EVENT SHALL THE LIABILITY OF PAKRA FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY YOU FOR THE SOFTWARE PRINCIPALLY RESPONSIBLE FOR SUCH DAMAGES. THE LIMITATIONS OF LIABILTY IN THIS SECTION 6 SHALL APPLY TO ANY DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR OTHERWISE, EVEN IF PAKRA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE.

7. INDEMNIFICATION.

You agree to indemnify and hold harmless PAKRA, its officers, members, managers, directors, employees, agents, successors and assigns, from and against any costs, expenses or claims (whether from you or third parties) of any kind or nature arising from or relating to Your use of the Software, excepting therefrom claims asserted by You under the limited warranty in Section 5.1.

8. GENERAL.

8.1 No Assignment; Insolvency. This Agreement and any rights hereunder are non-assignable and any purported assignment shall be void. This Agreement and the licenses grated hereunder shall terminate without further notice or action by PAKRA if You become bankrupt or insolvent or make an arrangement with Your creditors to go into liquidation.

8.2 Choice of Law. This Agreement and any disputes arising out of or in connection with this Agreement shall be governed by Ohio law without reference to conflict of laws principles.

8.3 Entire Agreement. This Agreement and the applicable User Documentation constitute the enter agreement between us and supersede any other previous or contemporaneous communications, agreements, representations, or advertising with respect to the Software and the User Documentation. Any modifications to this Agreement shall be invalid unless made in a duly-executed writing.

8.4 Severability. If and to the extent that any provision of this Agreement is held illegal, invalid, or unenforceable, in whole or in part, under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid or unenforceable to the extent of its illegality, invalidity or unenforceability and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way effect the legality, validity, or enforceability of any other provision of this Agreement in any other jurisdiction.

8.5 Audits. To insure compliance with this Agreement, You agree that upon reasonable notice, PAKRA or its authorized representative shall have the right to inspect and audit Your Installation, Access and use of the Software. If such inspections or audits disclose that You have Installed, Accessed or permitted Access to the Software in a manner that is not permitted under this Agreement, then PAKRA may terminate this Agreement immediately, and You are liable to pay for any unpaid license fees as well as reasonable costs for audit. Nothing in this section shall be deemed to limit any legal or equitable remedies available to PAKRA for violation of this Agreement.
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