End User Software License Agreement

This Agreement is between the Customer specified at the end of this document (“Customer” or “Licensee”), and WDG (collectively, on occasion, “the Parties”). This Agreement states the terms and conditions upon which WDG licenses the software and accompanying items described in the attached Software Detail Addendum (Addendum 1) (collectively, the “Software”) and online, electronic, or printed documentation (“Materials”). This Agreement does not cover hardware support, warranty, or maintenance. If the Customer requires hardware support, contact WDG for an additional Hardware Support Maintenance Agreement.

1. Rights Granted. WDG licenses, not sells, the Software and Materials to Customer to do the following with the Software:
• Install and use the Software; and
• Use the Software for your own internal business purposes.
This license is non-exclusive, non perpetual and non-transferable.

2. License Fee. In exchange for the license granted in the “Rights Granted” section above, Customer agrees to pay to WDG or its authorized reseller a monthly, quarterly or annual “Service Level” and/or “Subscription” fees (the “Fees”) detailed in this document. Customer must pay the Fees either monthly, quarterly or annually, as stated in this document on the due date indicated therein. WDG reserves the right to increase rates annually for similar services and product features. Such Fees are exclusive of any federal, state, municipal or other governmental taxes, duties, licenses, fees, excises or tariffs (“Charges”) imposed on the production, storage, licensing, sale, transportation, import, export, or use of the Software. Licensee agrees to pay, and to indemnify and hold WDG harmless from such Charges; provided, however, Licensee shall not be responsible for taxes based on WDG’s income. Licensee shall, if applicable, provide an exemption certificate acceptable to WDG and the applicable authority as necessary. All amounts payable hereunder by Licensee shall be payable in United States funds without deductions for taxes, assessments, fees, or charges of any kind. Checks shall be made payable to
WDG and shall be forwarded to:
Wolin Design Group
2390 East Orangewood Avenue Suite 300
Anaheim, CA 92806
Attn: Accounts Receivable
The fee is due prior to the license renewal extension provided by WDG. WDG reserves the right not to renew the license. WDG reserves the right to terminate and uninstall the Software if the fee is not paid.

3. Number of Concurrent Session Licenses. Unless the Software Detail Addendum expressly states that the number of sessions of the Software is unlimited, then the use of the Software by Licensee is limited to the number of concurrent sessions indicated in the Software Detail Addendum and for which Licensee has paid WDG license fees. For each session, one individual or software application may install and use the Software on an unlimited number of computers provided that only that individual or software application may use the Software and only one copy of the Software is in use at any one time. A separate license is required for each additional individual concurrent session. This Agreement is valid for one database instance used for test purposes and one database instance for production.

4. Licensee Obligations. Except as expressly set forth in the Agreement otherwise, Licensee agrees: (a) not to remove from any copies of the Software or Materials any product identification, copyright or other notices; and (b) not to reproduce, modify, translate or create derivative works of all or any portion of the Software except as expressly permitted by this Agreement. Licensee further agrees that it shall not make any use of the Software and Materials except as specifically permitted by this Agreement.

5. No Additional Services. Under the terms of this license or Agreement, WDG is not responsible for installing, supporting, maintaining, or updating the Software, training Customer to install, use, support, maintain, update, or modify the Software, or for converting, entering, or verifying any data. WDG and its authorized resellers provide maintenance, support, training, upgrade protection and consulting services for a fee under separate written agreements. This Agreement does not cover hardware support. Hardware support can be provided only under a separate Hardware Support Maintenance Agreement between Customer and WDG.

6. Maintenance. WDG scheduled and unscheduled maintenance windows are described below:
Category 1 – Scheduled Maintenance. A weekly scheduled maintenance period may be scheduled (i) in the case of WDG, every Wednesday between 9:00PM PST to 2:00AM PST, to perform system maintenance, backup, and upgrade functions for the Cloud Services. If scheduled maintenance is required outside of the scheduled maintenance period described above, WDG will notify Customer at least two (2) business days in advance.
Category 2 – Unscheduled Maintenance. Unscheduled maintenance may be required to resolve issues that are critical for Customer and/or performance of the Cloud Services. WDG will use its commercially reasonable efforts to notify Customer at least six (6) hours prior to the unscheduled maintenance.

7. Additional Restrictions.
(a) The Software may not be sold, leased, assigned, loaned or otherwise transferred or provided to a third party, except that the Agreement may be assigned in the circumstances described in WDG’s Software License Transfer Agreement. Licensee may not use the Software to provide services to third parties, including hosted application services, or to otherwise operate a services bureau.
(b) The Software may not be modified by Licensee unless WDG obtains a license to the source code version of the Software in accordance. Source code is not included with this Agreement.
(c) Licensee is not permitted to make copies of the Software or Materials, other than that number of copies which is necessary to exercise Licensee’s rights granted hereunder. Licensee shall maintain a record of the location of all permitted copies.

8. Limitations on Liability. In no event will WDG or its subsidiaries, affiliates, licensors, employees, agents, or representatives be liable for any damages whatsoever, including, but not limited to, lost revenue or profits or other direct, indirect, special, incidental, or consequential damages, even if they have been advised of the possibility of such damages, except to the extent any applicable law prohibits this disclaimer.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WDG AND ITS SUBSIDIARIES, AFFILIATES, LICENSORS, EMPLOYEES, AGENTS, REPRESENTATIVES, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, DISTRIBUTORS, DEALERS OR SUPPLIERS (“REPRESENTATIVES”) ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO: DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR INVESTMENT, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OTHERWISE, EVEN IF WDG OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME STATES DO NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WDG AND YOU. WDG WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE OR SERVICES WITHOUT SUCH LIMITATIONS.

9. No Warranties. THE SOFTWARE AND THIS LICENSE AGREEMENT ARE PROVIDED AS IS WITH NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING THE WARRANTY OF DESIGN, TITLE, ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL SATISFY LICENSEE’S REQUIREMENTS, THAT THE LICENSED SOFTWARE IS WITHOUT DEFECT OR ERROR OR THAT OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE FROM MALICIOUS CODE. For purposes of this paragraph, “malicious code” means any program code designed to contaminate other computer programs or computer data, consume computer resources, modify, destroy, record, or transmit data, or in some other fashion usurp the normal operation of the computer, computer system, or computer network, including viruses, Trojan horses, droppers, worms, logic bombs, and the like. WDG shall not be liable for the accuracy of any information provided by WDG or third-party technical support personnel, or any damages caused, either directly or indirectly, by acts taken or omissions made by Customer as a result of such technical support. Customer assumes full responsibility for the selection of the Software to achieve Customer’s intended results, and for the installation, use and results obtained from the Software. Customer also assumes the entire risk as it applies to the quality and performance of the Software. Should the Software prove defective, Customer (and not WDG) assumes the entire liability of any and all necessary servicing, repair or correction.

10. No Refunds or Returns. Customer will forfeit all paid monies and license fees to date in the event of a cancellation of the contract.

11. U.S. Government. All Software and related documentation are provided with restricted rights. Use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in subdivision (b)(3)(ii) of the Rights in Technical Data and Computer Software Clause at 252.227-7013.

The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and the Department of Defense Federal Acquisition Regulations Sections 252.227-7014 (a) (1), (5). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227-7202-1 through 227-7202-4 (JUNE 1995), all U.S. Government End Users acquire the Software (or Licensed Product) with only those rights set forth herein.

12. Export Restrictions. Customer acknowledges and agrees that the Software is subject to restrictions and controls imposed by the Export Administration Act and the Export Administration Regulations (“the Acts”). Customer agrees and certifies that neither the Software nor any direct product thereof is being or will be used for any purpose prohibited by the Acts, nor will any information acquired under the Agreement or any Software utilizing any such information shall be exported to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other government approval without first obtaining such license or approval. If Customer is using the Software outside of the United States, compliance is required with the applicable local laws of Licensee’s country, U.S. export control law, and the English version of this Agreement. Customer agrees and certifies that Customer is not a citizen or permanent resident of the following countries: Cuba, Iran, Iraq, North Korea, Libya, Sudan or Syria.

13. Termination. This Agreement may be terminated by WDG immediately and without notice if Customer fails to comply with any term or condition of this Agreement (Breach). At the termination or expiration of the Agreement (a) Licensee must destroy all copies of the Software (except those already incorporated into Licensee’s Products); provided, however, that Licensee may keep a reasonable number of copies of the Software, solely to support customers that have previously purchased the Licensee’s Products; (b) all fees due to WDG shall immediately become due and payable by Licensee to WDG. Excluding Breach of Agreement, customer and WDG may terminate this agreement with 90 days written notice.

14. Intellectual Property Rights; No Separation of Technology or Parts. Licensee agrees that the Software and Materials, including the structure, sequence and organization of the Software are proprietary and confidential to WDG, and Licensee will take all reasonable measures to protect the confidentiality of the Software and Materials unless, and to the extent, WDG makes them available to the public without such restrictions. Licensee further agrees that all right, title and interest in and to the Software (and all intellectual property rights embodied therein) or any modification or improvement thereof made by WDG is proprietary to WDG. All rights therein not expressly granted to Licensee under the Agreement are reserved by WDG. The software, including but not limited to, the database schema, design techniques, and screen designs are proprietary and considered intellectual property of WDG. Customer may not attempt to duplicate or reverse engineer the software. Any use of the software, including but not limited to, the database schema, design techniques, and screen designs require compliance with Sections 1 and 2 of this Agreement.

15. Copyright. The Software and Materials are owned by WDG and/or its licensors, and are protected by United States copyright laws and international treaty provisions. Customer may not remove the copyright notice from any copy of the Software or any copy of the Materials.

16. Trademarks. WDG, the WDG logo, WDGCORP.COM, DA VINCI SUPPLY CHAIN BUSINESS SUITE, ICON WMS, ICON TMS, MIRO WMS, AND CARTONLOGIC.COM, among others, are registered trademarks and/or registered service marks of WDG in the United States and other countries. Other parties’ trademarks or service marks are the property of their respective owners and should be treated as such.

17. No Solicitation of Employees, Representatives and Distributors. Customers may not hire any of WDG’s employees, representatives or distributors prior to one year after termination of employment or contract with WDG.

18. General Provisions. This Agreement sets forth WDG’s and its Representatives’ entire liability and your exclusive remedy with respect to the Software. This Agreement does not limit any rights that WDG may have under trade secret, copyright, patent, or other laws. The Representatives of WDG are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on WDG, other than those in writing signed by an officer of WDG. Accordingly, such additional statements are not binding on WDG and Customer should not rely upon such statements.

19. Severability. If any provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the remaining provisions of the Agreement shall not be affected thereby.

20. Headings. The paragraph headings and captions of this Agreement are included merely for convenience of reference and are not to be considered part of, or to be used in interpreting the Agreement and in no way limit or affect any of the contents of the Agreement or its provisions.

21. Governing Law. This Agreement shall be construed in accordance with and all disputes hereunder shall be governed by the laws of the State of California as applied to transactions taking place wholly within California between California residents, except as to copyright and trademark matters, which are covered by federal laws. The parties exclude in its entirety the application to the Agreement of the United Nations Convention on Contracts for the International Sale of Goods.

22. Jurisdiction and Venue. The California state courts of Orange County, California (or, if there is exclusive federal jurisdiction, the United States District Courts within Orange County, California) shall have exclusive jurisdiction and venue over any dispute arising out of the Agreement, and Licensee hereby consents to the jurisdiction of such courts. This Agreement is deemed entered into at Orange, California, and shall be construed as to its fair meaning and not strictly for or against either party.

23. Assignment. Licensee shall not directly or indirectly sell, transfer, assign, convey, pledge, encumber or otherwise dispose of the Agreement without the prior written consent of WDG, which consent shall not be unreasonably withheld. Assignments shall include assignments or transfers of the Agreement as part of a corporate reorganization, consolidation, merger or sale of substantially all assets or any other change of control.

24. Relationship of the Parties. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the Parties. The relationship between the parties shall at all times be that of independent contractors. Neither party shall have authority to contract for or bind the other in any manner whatsoever. The Agreement confers no rights upon either party except those expressly granted herein.

25. Counterparts. The Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

26. Entire Agreement. This Agreement incorporates in its entirety the Terms and Conditions of this Agreement (pages 4 through 14) and together constitutes the complete, entire, final and exclusive statement of the terms and conditions of the Agreement between the parties. The Agreement supersedes, and the terms of the Agreement govern, any prior or collateral agreements between the parties with respect to the subject matter hereof. The Agreement may not be modified except in a writing executed by duly authorized representatives of the Parties. The Terms and Conditions of the Agreement shall prevail notwithstanding any variance with the terms and conditions of any other instrument submitted by Licensee.

27. Attorney’s Fees

In any action or proceeding hereafter brought or commenced by any party to the Agreement for the purpose of enforcing any term hereof, or for the purpose of enforcing any rights that derive from the Agreement, including, but not limited to, the costs and fees involved in the entry of judgment as a result of default hereunder, such party shall be entitled to his/her/its reasonable attorney’s fees and costs incurred in such action or proceeding.

28. Corporate Authority

If any Party to this Agreement is a corporation, partnership, or other entity, the person signing this Agreement warrants that he/she is authorized and has authority to sign this Agreement on behalf of the corporation, partnership or other entity.

EACH PARTY WHO SIGNS THIS AGREEMENT REPRESENTS AND WARRANTS THAT HE OR SHE HAS CAREFULLY READ AND FULLY UNDERSTANDS THIS AGREEMENT AND ITS FINAL AND BINDING EFFECT; HAS BEEN AFFORDED SUFFICIENT TIME AND OPPORTUNITY TO REVIEW THIS AGREEMENT WITH ADVISORS OR ATTORNEYS OF HIS OR HER CHOICE; HAS HAD AN OPPORTUNITY TO NEGOTIATE WITH REGARD TO THE TERMS OF THIS AGREEMENT; IS FULLY COMPETENT TO MANAGE HIS OR HER OWN BUSINESS AFFAIRS AND TO ENTER INTO OR SIGN THIS AGREEMENT; HAS SIGNED THIS AGREEMENT KNOWINGLY, FREELY AND VOLUNTARILY; AND THAT THE ONLY PROMISES MADE TO INDUCE HIM OR HER TO SIGN THIS AGREEMENT ARE THOSE STATED HEREIN. IN WITNESS THEREOF, the parties hereto have caused this agreement to be executed by their duly authorized representatives as of the day and year signed below