PROBABILITY MANAGEMENT END USER LICENSE AGREEMENT

RECITALS

 This Agreement made by and between Probability Management, Inc. (the “Licensor”) and You (the “Licensee”) whereby the Licensor grants Licensee the non-transferable limited right to use and modify materials, including but not limited to templates, macros, formulas, documentation and other computer software and information provided by Probability Management (the “Materials") in accordance with these terms and conditions.

 Licensee agrees to these terms in one of three ways: 1) by downloading and using the Materials; 2) by indicating assent to these terms while becoming a member/user of Probability Management; and/or 3) by indicating assent to these terms when downloading or installing the Materials:

GRANT

 1.        

(a) Use. Licensor grants Licensee a fully paid, personal, royalty-free, non-transferrable, and non-exclusive license to use or modify the Materials for the Licensee’s own internal business purposes for the term specified in Paragraph 2. The right to modify is expressly conditioned on a requirement that all copyright notices currently affixed to the Materials remain.

(b) No Distribution. This Agreement does not include the right to distribute the Materials to others. Instead please refer non-members to the website www.ProbabilityManagement.org to register for membership.

 TERM

 2.          Use Period.  The “Use Period” shall be for the period during which Licensee is a member in good standing of Licensor’s membership program.

 3.         Effect of Failure to Timely Return the Materials.  In the event that Licensee fails to timely return the Materials by the end of the Use Period without the written consent of Licensor, Licensor shall have the right to obtain a Court Order requiring the delivery of all originals and all copies of the Materials as well as a Court Order enjoining any further use of the Materials.

 LICENSE TERMS

4.         (a) Single Business Only.  Licensee’s right to use or modify the Materials or any portion thereof is limited to the computers within Licensee’s business unit (but excluding any separately incorporated subsidiaries).

            (b) Copies.  The license granted herein includes the right to copy the Materials for the purpose of (i) using the Materials (ii) for archival or emergency restart purposes.  Except as provided herein, no right to reprint or copy the Materials in whole or in part is granted.

OBLIGATIONS OF THE PARTIES  

5.         Single Copy.  Licensor will provide Licensee with one copy of the Materials for Licensee’s use.

6.         Errors and Problems.  During the term of this Agreement, Licensee agrees to inform Licensor of all errors, difficulties, or other problems with the Materials.

 7.         Confidentiality. Licensor shall maintain the confidentiality of the Materials and shall not disclose to any party any aspect of the Materials.

WARRANTIES

8.          No WarrantiesLICENSOR MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, REGARDING THE MATERIALS, THEIR PERFORMANCE, OR THE RESULTS WHICH CAN BE ACHIEVED WITH THEM.  IT IS UNDERSTOOD BY LICENSEE THAT THE MATERIALS HAVE NOT BEEN TESTED OR DEBUGGED BY A BROAD USER BASE AND THAT LICENSOR MAKES NO REPRESENTATIONS REGARDING THEIR USE.  THE MATERIALS ARE PROVIDED ON AN "AS IS" BASIS AND LICENSOR HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE LICENSEE ASSUMES ALL RISK IN THEIR USE.

 REMEDIES

9.         Exclusive Remedies and Limitation of Liability.  LICENSEE SHALL NOT USE THE MATERIALS WITHIN ANY OTHER PROGRAM OR OTHER PRODUCT.  FURTHER, LICENSEE SHALL NOT ENTRUST TO THE MATERIALS ANY DATA OR OTHER INFORMATION WHICH IS NOT FULLY BACKED UP.  LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM UNDER THIS AGREEMENT, WHETHER IN CONTRACT, IN TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, IS TO CEASE USE OF AND TO RETURN THE MATERIALS TO LICENSOR.  LICENSOR ASSUMES NO LIABILITY THAT MAY ARISE OUT OF THE USE OR POSSESSION OF THE MATERIALS.

 10.       Arbitration.  Except where injunctive relief or other Court Orders are sought pending arbitration, any disagreement, dispute, or controversy arising out of or in connection with this Agreement, the Parties agree to binding arbitration before a retired Judge affiliated with JAMS-ENDISPUTE in Santa Clara County, California under the then prevailing rules of JAMS‑ENDISPUTE, or such other location that the parties may agree upon in writing.  The arbitrator's award shall be final and judgment upon any award by the arbitrator may be entered by the state or federal court having jurisdiction.

 11.       Choice of Law.  This Agreement shall be governed by and interpreted in accordance with the laws of the State of California.  It is acknowledged and agreed that this provision includes the California choice of law rules, so that each party is precluded from arguing that under California choice of law decisions some other states’ law would apply.

 PROPRIETARY RIGHTS

12.       Licensor’s Rights.  The Materials and all copies thereof are proprietary to and the property of Licensor, and title thereto remains in Licensor.  All applicable rights in copyrights, trademarks, and trade secrets in the Materials are and will remain in Licensor.  The licenses granted hereunder may not be assigned, sublicensed, or otherwise transferred by the Licensee without prior written consent from Licensor.

 TERMINATION

13.       Termination.  The license shall terminate at the end of the Use Period or when Licensor terminates this agreement for material breach, whichever occurs earlier. If Licensee fails to comply with any of its obligations hereunder, Licensor shall have the right, at any time, to terminate the license and take immediate possession of the Materials and all copies wherever located and without demand or notice.

GENERAL

14.       Entire Agreement.  This Agreement is the entire agreement between the parties relating to the subject matter hereof and may only be modified in writing and signed by both parties.  If any of the provisions of this License Agreement are invalid under any applicable statute or rule of law, such provisions or portions thereof are to that extent deemed to be omitted.  The waiver or failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.  Licensee’s remedies in this Agreement are exclusive.

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