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Friday, May 18, 2012
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BSP Software - End User License Agreement
Please read the following agreement.
BSP SOFTWARE LLC LICENSE AND MAINTENANCE AND SUPPORT AGREEMENT
BEFORE USING THE PROGRAM, YOU MUST READ THIS LICENSE AND MAINTENANCE AND SUPPORT AGREEMENT CAREFULLY. INSTALLING OR USING THE PROGRAM, INSTALLING REGISTRATION CODES, OPENING PROGRAM PACKAGING OR CLICKING "ACCEPT" IF YOU ARE READING THIS LICENSE ON A COMPUTER SCREEN, MEANS THAT "YOU" ARE AUTHORIZED TO ACCEPT THIS AGREEMENT, THAT YOU HAVE READ AND UNDERSTAND ITS TERMS AND THAT YOU AGREE TO BE BOUND BY IT. IF YOU DO NOT AGREE WITH ANY PART OF THIS AGREEMENT, YOU MAY NOT OPEN, INSTALL OR USE THE PROGRAM, AND MUST IMMEDIATELY RETURN THE PROGRAM UNUSED TO THE PLACE WHERE IT WAS ACQUIRED FOR A FULL REFUND. FOR PURPOSES OF THIS AGREEMENT, THE TERM "YOU" INCLUDES YOURSELF AND ANY ORGANIZATION OR INSTITUTION LICENSING THE PROGRAM OR ON WHOSE EQUIPMENT THE SOFTWARE MAY BE INSTALLED OR USED. 
1. PROGRAM LICENSE GRANT 
In consideration for the license fee paid, BSP Software LLC (hereafter "BSP Software") grants to you, a nonexclusive, restricted right to use the Program solely for your internal business purposes, in accord with the terms of this Agreement ("Program License"). You may use the Program only for the number of Users, resources and/or systems for which you are authorized, as described on the Sales Order. The term "Program" means the object code form of the computer software program described in the Sales Order, and all user manuals, printed materials, and registration files for such Program (collectively "Documentation") and all Updates, Upgrades, and related materials. Programs are customer installable and fees do not include installation.
1.1 Copies; Prohibited Uses. You may make one copy of the Program for backup purposes only. You may not use or provide access to the Program or use the Program for any purpose other than your internal business purposes. You may not use the Program to provide services to any third party without BSP Software's express written consent. You may not modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Program without BSP Software's prior written consent. You may not remove any disclaimer, copyright, trademark, proprietary rights, or other notice included on or embedded in the Program.
1.2 Ownership. BSP Software owns or licenses, and retains all title, copyright, trademark, trade secret, patent, and other proprietary rights in and to the Program. This license is NOT a sale of the Program or any copy of it. You obtain only the rights specified in this Agreement. BSP Software reserves all rights not specifically granted.
1.3 Term of License. This Program License is effective until terminated. BSP Software may terminate this Program License on written notice if you breach any provision of this Agreement. On termination, you must destroy or return to BSP Software all copies of the Program, including all associated materials. 
2. MAINTENANCE & SUPPORT
2.1 General. Maintenance and support agreement shall become effective as of (i) the date of the Order Form, or (ii) when BSP Software begins to furnish Services with respect to the Program, whichever occurs first ("Effective Date"), and shall continue as long as your Program License remains in effect.
2.2 Fees. Annual fees for Maintenance and Support shall be paid prior to the anniversary of the Effective Date each year. You shall also pay any Program License fees for any additional Users added during the prior 12 month period that have not already been paid.
2.3 Termination of Maintenance and Support. BSP Software's Maintenance and Support will terminate: (a) automatically without any requirement of notice if your Program License terminates for any reason; (b) upon thirty (30) days' written notice by either party to the other party for material breach of any provision of this Agreement unless cured within such thirty (30) day period, and (c) immediately upon written notice by either party to the other party if proceedings in bankruptcy, reorganization, receivership, or dissolution are instituted by such other party, or against such other party which are dismissed or terminated within sixty (60) days following the date initiated, or if such other party makes an assignment for the benefit of creditors. In the event of any breach by you, BSP Software may, at its option and in addition to any other rights or remedy under applicable law, suspend performance hereunder until such breach or default is cured, adjust any unpaid and future charges, and/or terminate this Agreement. All your accrued obligations to pay any amount due hereunder shall survive expiration or termination hereof.
2.4 Reinstatement. After termination, you may reinstate Maintenance and Support under this Agreement only with BSP Software's approval, and by paying (a) the then-current list price necessary to bring your Program up to the then-current version, (b) all Maintenance and Support fees for the period of lapse and (c) BSP Software's then-standard Maintenance and Support fee for the ensuing 12 months. 
2.5 Maintenance. Upon payment in full of all applicable Maintenance and Support fees, BSP Software will make Updates and Upgrades available to you if, as and when it makes them generally available to other maintenance customers ("Maintenance"). Updates and Upgrades will, upon installation, automatically become subject to the terms and conditions of the BSP Software license agreement pertaining to the software being updated. "Update" means a bug fix, patch, or other minor revision to or modification of software. "Upgrade" means a major revision of software, as determined by BSP Software in its sole discretion. Updates and Upgrades do not include New Products. "New Product" means a release of software with features or functionality not previously included in the Program or which has been significantly enhanced, as determined by BSP Software in its sole discretion. A New Product typically is identified by a new product or module name.
2.6 Support. Upon payment in full of all applicable maintenance and support fees, BSP Software will respond as described below ("Support") to Error reports that you submit to us during Business Hours by email at support@BSPSoftware.com or by website support ticket at www.bspsoftware.com. The specific contact mechanisms may change as BSP Software may designate from time to time. "Error" means (a) a material failure of your supported BSP Software software to function in accordance with its documentation, or (b) any other alleged material defect in or malfunctioning of your supported BSP Software software. "Business Hours" and "Business Day" mean 9:00 a.m. Central Time to 5:00 p.m. Central Time on weekdays, exclusive of BSP Software company holidays.
2.6.1 Contact with BSP Software support must be channeled through your named contact representative(s). When reporting an Error, the named contact must describe the Error in reasonable detail, indicate the severity of the Error using the terminology set forth in the chart below, and specify any and all error messages observed. BSP Software will use commercially reasonable efforts to respond to your Error reports within the times indicated.

Priority 1: Critical: No useful work can be done.  Targeted resolution of 5 business days.
Priority 2: High: Severe impact - errors which result in a lack of application functionality or cause intermittent system failure.  Targeted resolution of 10 business days.
Priority 3: Medium: Degraded operations - errors causing malfunction of non critical functions.  Targeted resolution for next minor release.
Priority 4: Low:  Minimal impact - attributes and/or options do not operate as stated in documentation.  Targeted resolution set for future release, on business justifiable basis.
Priority 5: Enhancement Request - Targeted resolution set for future release, on business justifiable basis.

2.6.2 BSP Software�s acknowledgements of Error reports will contain either a resolution of the Error or a support plan describing the steps being taken by BSP Software, and any steps to be taken by you, to correct the Error. If BSP Software requests further information about an Error, you must promptly provide the requested information. Information requested by BSP Software may include, by way of example and not limitation, manuals related to your hardware, network, or third party software; examples of software output; or configuration information, including .ini files and database files. BSP Software will use commercially reasonable efforts to correct, within a commercially reasonable period of time, any substantiated Error in the unaltered software reported by you as specified above. BSP Software will determine the form of any Error correction, which may include, by way of example and not limitation, an individual patch, a work around, or maintenance release provided in the normal course of BSP Software maintenance release schedule.
2.6.3 BSP Software provides support for the most current major release of software.  Additionally, BSP Software provides support for the previous major release of software for a period of six months following the release of a new major release version. Customers are expected to install all Updates and Upgrades.
2.6.4 BSP Software will have no obligation to attempt to correct reported Errors that (a) cannot be reproduced or verified; (b) in BSP Software reasonable judgment, should not exist under the circumstances in which the software is being used, taking into account its design specifications; or (c) result from (i) misuse of software by you or others; (ii) modifications to software rendering it non-standard, regardless of who performed the modifications; (iii) failure or interruption of electrical power; (iv) obsolescence of software due to changes in your network, hardware, or third party software; or (v) an accident or other cause external to the software, including, but not limited to, problems or malfunctions related to your network, hardware, or third party software. 
2.6.5 BSP Software does not guarantee that all Errors will be corrected. BSP Software will have no obligation to implement your requests for changes or enhancements.
2.6.6 If BSP Software responds to a reported Error and the Error is determined to be outside the scope of BSP Software�s support obligations, BSP Software may charge for its time and reasonable expenses responding to the reported Error pending your approval for the billable effort. BSP Software time will be billed at its standard daily consulting rate in effect for such services at the time the services are rendered. BSP Software support services do not include professional services. These services are available for additional fees. 
3. LIMITED WARRANTY
All Programs are tools which BSP Software hopes you will find useful. However you are solely responsible for the selection, use, performance, backup, and results associated with any Program use. BSP Software does not warrant that the functions contained in the Program will meet your requirements or that Program operation will be uninterrupted or error free. 
BSP Software warrants that Maintenance, Support, and Services will be provided in a workmanlike manner, but does not warrant any particular result. This warranty gives you specific legal rights. You may have other rights that may vary from jurisdiction to jurisdiction. 
EXCEPT AS EXPRESSLY PROVIDED ABOVE, ALL PROGRAMS ARE PROVIDED "AS IS". BSP SOFTWARE DOES NOT MAKE ANY WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THIS WARRANTY WILL NOT BE ENLARGED OR AFFECTED BY ANY BSP SOFTWARE TECHNICAL OR OTHER ADVICE IN CONNECTION WITH THE PROGRAM.
4. LIMIT OF REMEDIES & LIABILITY
BSP SOFTWARE�S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIM ASSOCIATED WITH THE PROGRAM OR ANY PRODUCT, MAINTENANCE, SUPPORT, OR SERVICE ASSOCIATED WITH THE PROGRAM OR SOFTWARE OR THIS AGREEMENT (THE "PRODUCT") SHALL BE AT BSP SOFTWARE�S SOLE OPTION, RETURN OF THE PURCHASE PRICE OR REPLACEMENT OF THE PRODUCT. NOTWITHSTANDING ANY OTHER PROVISION OF THIS OR ANY OTHER AGREEMENT, BSP SOFTWARE SHALL NOT BE LIABLE FOR (1) ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, STRICT OR INCIDENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES RELATED TO INACCURACY OF ANY DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR LOSS OF PROFITS, DATA OR USE) ARISING OUT OF OR IN CONNECTION WITH ANY USE OR INABILITY TO USE THE PROGRAM OR ANY BSP SOFTWARE SERVICES WHICH MAY BE PROVIDED, OR ANY CAUSE RELATED THERETO, EVEN IF BSP SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (2) ANY AMOUNT IN EXCESS OF THE LESSER OF THE PRICE, FEE OR CHARGE THEREFORE RECEIVED BY BSP SOFTWARE FOR PRODUCT OR SERVICE DURING THE MOST RECENT ANNUAL PERIOD.
BSP Software expressly disclaims liability for any damages caused by you, including but not limited to any failure to follow or observe BSP Software's instructions or Documentation, any failure to back up your data, or any failure or malfunction of any tools, equipment, facilities, or devices not furnished or approved by BSP Software. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, some or all of the above limitations may not apply to you. 
5. U.S. GOVERNMENT CONTRACTS
To the extent any contract, grant, agreement or activity based on this Agreement ("Procurement") orders items for use, disclosure or reproduction by or on behalf of any U.S. or other government ("Government"): (1) all applicable U.S. federal procurement contract clauses mandatory required by federal statute to be included shall be incorporated herein by reference (provided no other clauses shall be incorporated without BSP Software's express advance written approval); (2) all Software is acknowledged to be licensed solely as "commercial" computer software provided only under the license contained herein, which license shall govern all use, disclosure and reproduction of said Software and supersede all conflicting terms or conditions, and (3) all technical data is provided only for the specific purposes described herein and with Limited Rights as provided in FAR �52.227-14 [ALT II(g)(2)] (or DFARS �252.227-7013 RIGHTS IN TECHNICAL DATA-NONCOMMERCIAL ITEMS (NOV 1995)) (or identical provisions of the ordering Government). If this clause and license do not entirely meet your and the Government�s needs without exception, or are inconsistent with any aspect of applicable Procurement, law or regulation, you and the Government each agree to return the Software and/or technical data, unused, to BSP Software. 
6. CONFIDENTIAL INFORMATION
You agree that all BSP Software-furnished information that is labeled "confidential", "proprietary" or the like ("Confidential Information") contains valuable proprietary information and/or trade secrets developed by BSP Software or its licensor at great expense. You will hold this Confidential Information in confidence and will not use, reproduce or distribute it except to your employees (and agents who agree to this provision) who may use it only as part of their responsibilities to you. You will report any unauthorized use or disclosure of any Confidential Information.
7. MISCELLANEOUS PROVISIONS
7.1 Export. You will deal with all Programs and technical data relating thereto in conformity with all U.S. export licensing laws and shall not trans-ship, divert, re-export or otherwise dispose of any U.S.-origin goods or technology except as U.S. laws and regulations expressly permit. 
7.2. Entire Agreement; Amendment and Waiver. This Agreement (including the Sales Order and any supplemental terms agreed in writing) constitutes the complete and exclusive agreement between you and BSP Software and supersedes any proposal or prior agreement or other communication with BSP Software relating to the subject of this Agreement. This Agreement may be modified, changed or amended only in a writing signed by both parties. Only an authorized officer of BSP Software shall have any actual or apparent authority to sign or modify the terms hereof. No delay or failure to exercise any right provided herein shall affect either party's right to enforce that right or any other right hereunder at any other time, and no waiver or consent granted in any instance shall be deemed a waiver or consent in any other instance. 
7.3. Severability. If any provision hereof is declared invalid by any lawful tribunal, it shall be adjusted to conform to legal requirements of that tribunal and that modification shall automatically become a part of the Agreement. Or, if no such adjustment can be made, the provision shall be deleted and this Agreement's remaining provisions shall remain in full force and effect.
7.4. Independent Contractors. BSP Software and you are independent contractors, and neither party shall be, nor represent itself to be, the joint venture, franchiser, franchisee, partner, broker, employee, servant, agent or representative of the other party for any purpose. Neither party shall be responsible for the acts or omissions of the other, nor shall either party have any authority to make any representation or incur any obligation on behalf of the other party unless expressly authorized herein.
7.5. Assignment. Neither this Agreement nor rights under it may be assigned, nor shall any obligation be delegated by you without BSP Software's prior written consent. Any other attempted assignment or delegation by you shall be void. In the event of an assignment permitted hereunder, the provisions hereof shall be binding upon and inure to the benefit of the assignee.
7.6. Force Majeure. Except for payment obligations, neither party will be liable for any failure or delay in performance due of any obligation, in whole or in part, due to any cause beyond that party's reasonable control.
7.7. Limitation of Actions. No action, regardless of form, may be brought by either party more than twelve (12) months after the cause of action has arisen, except that BSP Software may bring an action at any time for non-payment or relating to its intellectual property rights.
7.8. Governing Law; Survival. This Agreement, and all actions relating to this Agreement, the parties' relationship, or goods or services provided, purchased or licensed hereunder, shall be governed and construed in accord with the laws of the State of Illinois, USA, without reference to its conflict of laws provisions or the UN Convention for the International Sale of Goods; and any such action shall be brought and tried in Illinois. Both parties hereby submit to the exclusive jurisdiction of the federal and state courts located in Chicago, Illinois over any claim or dispute arising out of this Agreement and waive any right each may have under applicable law or otherwise to a right to a trial by jury. The remedies set forth in this Agreement are not exclusive unless expressly so provided and, unless exclusive are in addition to all other remedies available under applicable law. The parties' rights and obligations under any provision which by its express terms or very nature continues in effect beyond the effective term hereof, shall survive any expiration or termination of this Agreement until fulfilled.
7.9. Notices. Any notice or communication required or permitted hereunder shall be in writing and be deemed received as of the date shown to be delivered to the you at the address set forth in the signature block on the Order Form, or to BSP Software at the following address: 1701 Golf Road, Tower III, Suite 604, Rolling Meadows, Illinois, 60008 USA or such other address as either party may from time to time notify to the other pursuant to this Section.

YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN.  BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO INSTALL THE PROGRAM, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS.
Do you accept all of the terms of the preceding License Agreement? If you Choose No, you will not be able to continue. To continue you must accept this agreement.
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