PROBABILITY MANAGEMENT TEST SITE AGREEMENT

RECITALS 

This Agreement made by and between Probability Management, Inc. (the “Licensor”) and the signer of this document (the “Licensee”) whereby the Licensor grants Licensee the non-transferable limited right to test and provide feedback to the Licensor with regard to the Probability Management Beta Test Data Table Macros for Excel (the “Macros") in accordance with these terms and conditions:

GRANT 

1.         Licensor grants Licensee a fully paid, personal, royalty-free, non-transferrable, and non-exclusive license to use the Macros for the term specified in Paragraph 2.  It is understood and agreed that the Licensor is not making an offer for a sale or license of any product and that Licensee makes no commitment to purchase anything from Licensor; this Agreement is solely for testing, evaluating, and reporting on the Macros. This Agreement does not include the right to release or otherwise use any reports or data developed from, derived from, or otherwise based on the Macros.

TERM 

2.          Testing Period.  The “Testing Period” shall be for the period beginning on the date of delivery or downloading of the Macros and extending until the Macros are authorized for general release by Licensor or until Licensor terminates this agreement, whichever occurs earlier.  Licensee may install and use the Macros, and shall record any defects, deviations, or other problems encountered with the Macros.  Licensee may report all such problems to Licensor.  All such reports and all rights therein shall be the sole and exclusive property of Licensor. 

3.         Effect of Failure to Timely Return the Macros.  In the event that Licensee fails to timely return the Macros by the end of the Testing 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 Macros as well as a Court Order enjoining any further use of the Macros.

LICENSE TERMS 

4.         (a) Use.  Licensee shall have the right to use the Macros or any portion thereof on a single computer only to evaluate and test the Macros.

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

OBLIGATIONS OF THE PARTIES    

5.         Single Copy.  Licensor will provide Licensee with one copy of the Macros for Licensee’s use, evaluation, and testing. 

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

7.          Reports.  Licensee will provide Licensor with a report on its use of the Macros and its comments regarding the Macros and its use, periodically, and no later than the end of the license term.  These comments include, but are not limited to, specific details on (i) the results of all evaluations and tests (ii) any errors found by Licensee. 

 8.        Confidentiality. Licensor shall maintain the confidentiality of the Macros and shall not disclose to any party any aspect of the Macros or any aspect of the testing or evaluation performed by Licensor under this Agreement including, but not limited to, errors, accuracy, or performance of the Macros.  No publicity, publication, or disclosure of the results of the testing or evaluation shall be made available by Licensee to any third party without the written consent of Licensor.

WARRANTIES 

9.          No Warranties.  LICENSOR MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, REGARDING THE MACROS, THEIR PERFORMANCE, OR THE RESULTS WHICH CAN BE ACHIEVED WITH THEM.  IT IS UNDERSTOOD BY LICENSEE THAT THE MACROS HAVE NOT BEEN TESTED OR DEBUGGED AND THAT LICENSOR MAKES NO REPRESENTATIONS REGARDING THEIR USE.  THE MACROS ARE PROVIDED ON AN "AS IS" BASIS AND LICENSOR HEREBY EXCLUDES ANY AND ALL IMPLIED WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

REMEDIES  

10.       Exclusive Remedies and Limitation of Liability.  LICENSEE SHALL NOT USE THE MACROS IN PRODUCTION AND LICENSEE SHALL NOT BASE ANY PROGRAM OR OTHER PRODUCT ON THE MACROS.  FURTHER, LICENSEE SHALL NOT ENTRUST TO THE MACROS 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 MACROS TO LICENSOR.  LICENSOR ASSUMES NO LIABILITY THAT MAY ARISE OUT OF THE USE OR POSSESSION OF THE MACROS.

11.       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.

12.       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

13.       Licensor’s Rights.  The Macros 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 Macros are and will remain in Licensor.  This Beta Test Site Agreement and the licenses granted hereunder may not be assigned, sublicensed, or otherwise transferred by the Licensee without prior written consent from Licensor.

TERMINATION

14.       Termination.  The license shall terminate at the end of its license term which extends until the Macros are authorized for general release by Licensor or until Licensor terminates this agreement, 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 Macros and all copies wherever located and without demand or notice.

GENERAL

15.       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 Beta Test Site Agreement are exclusive.