End User License Agreement

1. CERTAIN DEFINITIONS

As used in this EULA:

1. "Confidential Information" means the Free Version, its source code, the content of the Documentation, any financial, statistical, business, technical, copyright, and confidential or proprietary information relating to the Free Version or to Komodo's business, software, products and/or services, which are disclosed by Komodo or its affiliates to You, or which is deduced from the Free Version or Komodo's business, software, products and/or services by You. Notwithstanding the foregoing, the term "Confidential Information" does not include any information that:
   1. was already rightfully known to You as the time of disclosure by Komodo;
   2. is in or has entered through the public domain through no breach of this EULA or other wrongful act of You;
   3. has been rightfully received by You from a third party not under an obligation of confidentiality to Komodo and without breach of this EULA; or
   4. is independently developed by You without reference or reliance on any confidential information of Komodo.
2. "Documentation" means all of Komodo's user manuals, operating instructions and other documentation relating to the Free Version, as generally made available by Komodo to Free Version users from time to time.
3. "Free Version" means: (i) Komodo's version of the software program(s) with limited functionality that is provided free of charge and licensed under this EULA; and (ii) all Free Version Updates provided by Komodo to You under this EULA. For avoidance of doubt, Free Version excludes any Premium Versions.
4. "Free Version Updates" means minor periodic maintenance updates, "bug fixes", software revisions, error corrections, update release notes, and any necessary Documentation revisions, if and when available, for the Free Version subject to a License under this EULA.
5. "License" means the license granted by Komodo to You to the Free Version and Documentation, as more fully described in Section 2.
6. "Premium Version" means any software and/or other products or services that Komodo provides for a fee.

2. LICENSE

1. Grant of License. Subject to the terms and conditions of this EULA, Komodo hereby grants to You a personal, revocable, non-exclusive, non-transferable, non-sublicensable, non-transferable license to [install on devices You own] and use the Free Version and related Documentation as set forth herein. The Free Version and Documentation may be used solely for Your [internal business use]. All rights not expressly granted under this EULA are reserved by Komodo and its licensors and/or suppliers (as applicable).
2. Subscription Types. The License granted under this EULA only applies to the Free Version. Komodo may offer other products and services, including, without limitation, Premium Versions, under different terms and conditions. In the event You subscribe to, license, or otherwise acquire a right to access or use any other Komodo products or services, they will be subject to different terms and conditions, which may include, without limitation, fees.
3. Backup Copies. You may make and maintain one copy of the Free Version and Documentation for emergency and backup purposes. All copies of the Free Version and Documentation must: (i) be exact copies of the originals as provided by Komodo; and (ii) include all copyright or other proprietary notices, as well as all notices concerning third-party rights and any restrictions on use, contained in the originals.
4. Third Party Intellectual Property and Open Source Software. You acknowledge that Komodo may have incorporated into the Free Version and/or Documentation intellectual property owned by third parties (collectively, "Third Party Intellectual Property"), and You agree that Your right to use the Free Version and Documentation containing Third Party Intellectual Property may be subject to the rights of such third parties and limited by additional licensing terms concerning such Third Party Intellectual Property. Your express agreement to such additional licensing terms may be required before You can access and use certain Third Party Intellectual Property. Without limiting the foregoing, You acknowledge that the Free Version may include or use open source software. Such open source software is subject to the terms of the applicable open source license agreements and, to the extent not in conflict with such agreements, the terms and conditions of this EULA.
5. Retention of Rights and Feedback. You acknowledge that Komodo and its licensors and/or suppliers (as applicable) retain all right, title and interest in and to the Free Version and Documentation and all copies thereof regardless of the form or media in or on which they may exist. You acknowledge and agree that You do not acquire any right, title or interest in or to any of the Free Version or Documentation, except as a licensee pursuant to the terms and conditions of this EULA. You acknowledge and agree that portions of the Free Version, including without limitation the source code, constitute or contain trade secrets of Komodo or its licensors, as applicable. If You submit, orally or in writing, suggestions or recommended changes to the Free Version, Documentation, or any other products or services that Komodo provides, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Komodo is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. You hereby assign to Komodo all right, title, and interest in, and Komodo is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Komodo is not required to use any Feedback.
6. License Restrictions. You shall not, and shall not permit others to:
   1. use the Free Version other than as set forth in the Documentation or this EULA;
   2. copy the Free Version or Documentation, except as expressly permitted in this EULA;
   3. use the Free Version or Documentation other than as expressly permitted in this EULA;
   4. use the Free Version in a service bureau or time-sharing environment (including without limitation using the Free Version to provide third parties a service consisting solely of the collection and entry of data into the Free Version);
   5. modify, disassemble, reverse engineer, decompile, translate or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Free Version or the Documentation (or any portions thereof);
   6. sell, assign, transfer, sublicense, lease, pledge, rent or otherwise share Your rights under this EULA;
   7. create any derivative works based upon the Free Version or Documentation (or any portions thereof);
   8. modify, obscure or remove any product identification or proprietary notices on the Free Version, the Documentation or copies thereof;
   9. except as specified in the applicable Documentation, modify or incorporate the Free Version into or with other software, or
   10. use the Free Version or Documentation in violation of any applicable law, regulation or rule.
   The Free Version contains technological copy protection or other security features designed to prevent unauthorized use of the Free Version. For avoidance of doubt, You shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.
7. Your Use of Free Version. You acknowledge and agree that under no circumstances will Komodo or any of its licensors or suppliers be responsible for any loss, damage or liability arising out of any acts or omissions (including, without limitation, mistakes or other errors) made by You as a result of Your use of the Free Version. Without limiting the generality of the foregoing, You acknowledge and agree that You are responsible and liable for any and all use of the Free Version, including without limitation, Your acts and omissions (and failures) to obtain all necessary consents, approvals, and authorizations to run and/or deploy the Free Version on any and all networks and/or systems. You hereby agree that Your use of the Free Version shall comply with all applicable law. You further agree to maintain all security regarding Free Version account IDs, passwords and connectivity with the Free Version. If Your account ID or password is stolen or otherwise compromised and such theft or compromise is not due to the fault of Komodo, Komodo shall not be responsible for any ensuing unauthorized use of the Free Version.
8. Subscription Validation Technologies. You acknowledge and agree that the Free Version may include, and Komodo has the right to utilize, technological means to verify Your use of the Free Version during the term of this EULA and/or disable Your ability to use the Free Version after the termination of the License granted by Komodo to You under this EULA (including, without limitation, incorporating "call-home" functionality).

3. MAINTENANCE AND UPDATES

1. No Obligation to Provide Free Version Maintenance. Komodo has no obligation under the terms of this EULA to provide You with any technical support or maintenance for the Free Version.
2. No Entitlement to Free Version Updates. The License granted to You under this EULA is limited to the version of the Free Version that is the subject of the License and You shall not be entitled to any subsequent Free Version Updates. However, in Komodo's sole discretion, Komodo may offer Free Version Updates to You, and this EULA shall apply to any such Free Version Updates.
3. Automatic Updates: The software periodically checks for system and app updates, and downloads and installs them for you. By accepting this agreement, you agree to receive these types of automatic updates without any additional notice.
4. Disabling Software. The software contains code which may be used to disable such software. Customer agrees and acknowledges that upon any termination or expiration of this agreement, and provided that the parties have not agreed in writing to renew this agreement, the software may, at Komodo discretion, cease to function in some or all respects, and customer may lose access to data made with, or stored using, the software. Customer agrees to indemnify Komodo from any liability, including liability due to third party claims, resulting from such disabling of such software. Customer agrees and acknowledges that the disabling of the software is a key feature of the license rights and responsibilities conveyed under this agreement.

4. TERM AND TERMINATION

1. Term. This term of this EULA shall begin upon the earlier of Your acceptance of this EULA or Your use of the Free Version and shall remain in effect until terminated pursuant to the provisions of this EULA.
2. Termination for Convenience. You may terminate this EULA at any time, without cause, by removing and destroying any copies of the Free Version from memory and/or storage in Your computer systems. Komodo may, at any time, terminate this EULA and all Licenses to the Free Version immediately, upon written notice (email to Your email address on file with Komodo to be sufficient), at Komodo's sole discretion for any reason or no reason.
3. Effect of Termination. Notwithstanding Komodo rights set forth herein, in the event of termination of this EULA, Your use of the Free Version may be completely disabled. Notwithstanding the foregoing, upon termination of this EULA, You shall immediately cease using the Free Version and Documentation and shall:
   1. remove and destroy any copies of the Free Version from memory and/or storage in Your computer systems; and
   2. at Komodo's request, provide Komodo with that You have complied in full with Your obligations under this Section 4.c.
   Without limiting anything set forth in this EULA, terminating this EULA will not relieve You of any liabilities or obligations arising from Your use of the Free Version or Documentation prior to termination. Additionally, termination of this EULA shall not affect any of Komodo's rights or remedies, and Komodo's right to terminate this EULA is in addition to all other rights and remedies that may be available at law, in equity, or otherwise.

5. CONFIDENTIALITY

1. Confidentiality Obligations. You shall only use Confidential Information in furtherance of Your performance under this EULA. You shall protect the Confidential Information by using the same level of care and discretion as You use for Your own information of like importance, and in no event less than a reasonable degree of care. You shall not use or disclose the Confidential Information without the express written consent of Komodo. Any improper use or disclosure of Confidential Information shall be treated as Your material breach of this EULA.
2. Komodo's Rights in Confidential Information. Komodo shall retain all rights, title and interest in and to the Confidential Information. Nothing herein shall be construed as a grant by Komodo to You of any rights in or to the Confidential Information. Any use, disclosure, reproduction or transfer of all or part of Confidential Information, or copies or compilations thereof, except in accordance with these provisions is strictly prohibited.
3. Compelled Disclosure. In the event You are legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or other legal process) to disclose any Confidential Information, then You shall provide Komodo with prompt prior written notice so that Komodo may seek a protective order or other appropriate remedy, and You shall reasonably cooperate with Komodo's efforts to obtain such relief at no cost to Komodo. Any Confidential Information disclosed pursuant to this Section 5.c. shall remain subject to the confidentiality obligations set forth in this EULA for all other purposes.
4. Violation. If You become aware of any actual, threatened or impending act by any person or entity that is or might be in violation of any of the restrictions herein with respect to use, disclosure, or copying of Confidential Information, then You shall notify Komodo immediately and shall work with Komodo to remedy the situation. This provision shall not limit any other remedy (including injunctive relief without the need to post a bond) that may be available to Komodo herein at law or in equity.
5. Injunctive Relief. You acknowledge that disclosure of any Confidential Information in violation of this EULA may give rise to irreparable injury to Komodo and, as a matter of law, such injury is inadequately compensable in damages. Accordingly, Komodo may seek injunctive relief without the need to post a bond against the breach or threatened breach of confidentiality, in addition to any other legal and equitable remedies which may be available.
6. Return of Confidential Information. Upon the termination of this EULA, and at any time upon the request of Komodo, You shall return all of the Confidential Information (and all copies and derivative works thereof), and/or shall delete or erase such Confidential Information and copies and derivative works thereof from the computer systems in Your possession or under Your control or any Confidential Information in the possession or under the control of a third party that acquired the Confidential Information from You. Komodo shall have the right to require You to verify, to the Komodo's reasonable satisfaction, that all Confidential Information has been returned, deleted, or otherwise protected from use or disclosure under the terms of this EULA.

6. DISCLAIMER OF WARRANTIES

THE FREE VERSION IS PROVIDED "AS IS" AND KOMODO DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY AND ALL WARRANTIES, REPRESENTATIONS AND GUARANTEES WITH RESPECT TO THE FREE VERSION, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY KOMODO, ITS LICENSORS OR REPRESENTATIVES OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, OR ANY IMPLIED WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS).

KOMODO MAKES NO WARRANTY OF ANY KIND THAT THE FREE VERSION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

7. INDEMNIFICATION

You shall indemnify, hold harmless, and defend Komodo, its affiliates and subsidiaries, and its and their employees, directors, officers, managers, shareholders, agents, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under this EULA, relating to any claim of a third party arising out of or occurring in connection with Your:

1. breach or violation of this EULA,
2. negligence or willful misconduct;
3. use of the Free Version or Documentation in a manner not authorized or contemplated by this EULA;
4. use of the Free Version in combination with data, software, hardware, equipment or technology not provided by Komodo;
5. modifications to the Free Version not made by Komodo;
6. use of the Free Version other than the most current version of the Free Version or Documentation delivered or made available to You (including, without limitation, applying and updating with all Free Version Updates);

provided that You may not settle any such claim against Komodo unless Komodo consents to such settlement, and further provided that Komodo will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.

8. LIMITATION OF LIABILITY

IN NO EVENT WILL KOMODO (OR ITS AFFILIATES, SUBSIDIARIES, OR LICENSORS) BE LIABLE UNDER OR IN CONNECTION WITH THIS EULA UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY:

1. CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES;
2. INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS;
3. LOSS OF GOODWILL OR REPUTATION;
4. USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY;
5. COST OF REPLACEMENT SOFTWARE,

IN EACH CASE REGARDLESS OF WHETHER KOMODO WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, IN NO EVENT WILL KOMODO'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS EULA UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED $[100]. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS EULA SHALL NOT INCREASE THE FOREGOING LIMIT.

IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASED, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."

9. MISCELLANEOUS TERMS

1. Export Restrictions. You may not use or otherwise export or re-export the Free Version except as authorized by United States law and the laws of the jurisdiction in which the Free Version was obtained. In particular, but without limitation, the Free Version may not be exported or re-exported: (i) into any U.S. embargoed countries; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using the Free Version, You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use the Free Version for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.
2. Government Rights. The Free Version and Documentation are "Commercial Items" as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users: (i) only as Commercial Items; and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are reserved under the copyright laws of the United States.
3. Assignment. You may not assign or otherwise transfer any of Your rights or obligations under this EULA, whether by operation of law or otherwise, without the prior written consent of Komodo, and any such attempt to do so shall be null and void. The rights and liabilities of the Parties hereto will bind and inure to the benefit of their permitted, respective successors, executors and administrators, as the case may be.
4. Governing Law; Venue. This EULA is made in accordance with and shall be governed and construed under the laws of the State of [Utah], excluding its conflicts of laws provisions, and without regard to the provisions of any federal or state enactment of the Uniform Computer Information Transactions Act. The Parties expressly agree that the United Nations Convention on the International Sale of Goods shall not apply to this EULA. The state or federal courts of proper jurisdiction located in or nearest to [Salt Lake City, Utah] shall have exclusive jurisdiction to adjudicate any dispute arising out of this EULA and the Parties hereby irrevocably agree to submit to the personal and exclusive jurisdiction and venue of such courts. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS EULA OR THE TRANSACTIONS CONTEMPLATED HEREBY.
5. Entire Agreement. This EULA constitutes the entire agreement between the Parties with respect to its subject matter, and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this EULA will be binding unless in writing and signed by duly authorized representatives of Komodo and You.
6. Notices. Any and all notices or demands provided for, permitted or required to be given in connection with this EULA shall be in writing and be conclusively deemed to have been given if: (i) personally delivered to the Party entitled to receive the same; (ii) within five (5) days after depositing it in a United States mailbox either by certified or registered mail, postage prepaid, in a sealed envelope addressed to the name and address of the Party entitled to receive the same; or (iii) one (1) day if sent by first class overnight, nationally recognized delivery or courier service, prepaid in a sealed envelope or package addressed to the name and address of the Party entitled to receive the same. Any notices sent to You shall be sent to your respective address and contact that You have provided to Komodo. Any notices to Komodo shall be sent to:
   Komodo Systems Incorporated
   2255 E Sunnyside Ave #58369
   Salt Lake City, UT 84158

   A Party's address for notice may be changed at any time by giving ten (10) days' prior written notice to the other Party in the manner described in this Section 9.f.

7. Severability. If any provision in this EULA is held to be invalid or unenforceable, such provision shall be amended to achieve as nearly as possible the objectives of, and the same economic effect as the original provision, and all other provisions shall remain in full force and effect.
8. Waiver. All waivers of performance of or adherence to the terms and conditions of this EULA must be in writing and signed by the Party waiving the same. The failure of a Party to require the performance of any obligation herein, or the waiver by a Party of any breach hereof, shall not constitute a waiver of future performance or any subsequent breach.
9. Survival. Any of the provisions of this EULA which by their sense and nature are intended to survive the termination of this EULA shall so survive any such termination of this EULA.
10. Representations. Each Party represents and warrants to the other that: (i) it has full authority to enter into this EULA; (ii) that the execution and/or performance of this EULA does not and will not violate or interfere with any other agreement by which such Party is bound: (iii) such Party will not enter into any agreement whose execution and/or performance would violate or interfere with this EULA; and (iv) neither Party or its respective officers, employees or agents has solicited or received from the other Party any sum, gift or gratuity or other thing of value as an inducement to securing or maintaining the performances hereunder.