Affinity Algorithms, LLC. License Agreement

1. Definitions

1. “Software” shall mean the version of the software applications and/or services available on the and the media and Documentation provided by Affinity Algorithms to Licensee and for which Licensee is granted a use license pursuant to this Agreement.
2. “Documentation” shall mean the printed or online written reference material furnished to Licensee in conjunction with the Software, including, without limitation, instructions, testing guidelines, and end user guides.
3. “Intellectual Property Rights” shall mean all intellectual property rights, including, without limitation, patent, copyright, trademark, and trade secret, recognized in any jurisdiction worldwide, whether perfected or not, and any similar and other proprietary rights.
4. “Updates” shall mean a modification, error correction, bug fix, new release, or other update to or for the Software.

2. License grant, use and ownership

1. Limited License. Subject to the terms and conditions of this Agreement, Affinity Algorithms grants to Licensee a non-exclusive, revocable (at any time and for any reason, at Affinity Algorithms’ sole discretion), royalty-free, non-transferable, non-assignable license (without the right to sublicense):
   1. to use the Software in support of Licensee’s authorized use of the Software, and
   2. to use the Software solely for purposes of testing and evaluation to determine whether or not to license generally available commercial versions of the Software if such versions ever become available. Licensee acknowledges and agrees that Affinity Algorithms, in its sole discretion, may restrict Licensee’s access to the services portion of the Software at any time. If Licensee accesses any services portion of the Software, then Licensee must comply with the associated terms of service, if any.
2. Evaluation Feedback. The purpose of this limited license is the testing and evaluation of the Software and Documentation and development by Licensee of Licensee products that interoperate with the Software. In furtherance of this purpose, Licensee shall provide feedback to Affinity Algorithms concerning the functionality and performance of the Software from time to time as reasonably requested by Affinity Algorithms, including, without limitation, identifying potential errors and improvements (collectively the “Feedback”). Licensee will provide Feedback in a manner that is mutually agreeable to the parties. Affinity Algorithms may use Feedback, without restriction in any manner now known or in the future conceived, to improve or enhance its products and, accordingly, and you hereby grant to Affinity Algorithms and its subsidiaries, a non-exclusive, perpetual, irrevocable, royalty-free, transferable, worldwide right and license, with the right to sublicense (i) to use, reproduce, disclose, distribute, modify, prepare derivative works of and otherwise exploit the Feedback and other information you provide to Affinity Algorithms under this Agreement, and (ii) to make, use, sell, offer to sell, import and export any product or service that incorporates the Feedback and other information you provide to Affinity Algorithms under this Agreement.
3. Restrictions. Licensee shall not disclose, provide, or disseminate in any manner the Software (including the Documentation) or Confidential Information to any third party, including but not limited to its partners, affiliates or subsidiaries. Except to the extent contrary to any applicable laws, Licensee will not, and will not permit any third party to, sublicense, rent, copy, modify, create derivative works of, translate, reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form any portion of the Software or accompanying Documentation. Without limiting the generality of the foregoing, Licensee shall not use the Software for Licensee’s product development or any other commercial purpose, including, but not limited to sales or marketing activities, except as expressly permitted in this Agreement. The Software and all performance data and test results, including without limitation, benchmark test results (collectively “Performance Data”), relating to the Software are the Confidential Information of Affinity Algorithms, and will be treated in accordance with the terms of Section 4 of this Agreement. Accordingly, Licensee shall not publish or disclose to any third party any Performance Data relating to the Software.
4. Ownership. Affinity Algorithms shall own and retain all right, title and interest in and to the Intellectual Property Rights in the Software and any derivative works thereof. Licensee does not acquire any other rights, express or implied, in the Software. All rights not expressly granted hereunder are reserved to Affinity Algorithms.
5. No Support Services. Affinity Algorithms is under no obligation to support the Software in any manner or to provide any Updates to Licensee. In the event Affinity Algorithms, in its sole discretion, supplies any Update to Licensee, the Update shall be deemed Software under this Agreement and shall be subject to the terms and conditions of this Agreement.

3. Term and termination

Unless otherwise terminated as specified under this Agreement, Licensee’s rights with respect to the Software will terminate upon the earlier of (a) the initial commercial release by Affinity Algorithms of a generally available version of the Software or (b) automatic expiration of the Software based on the system date. Either party may terminate this Agreement at any time for any reason or no reason by providing the other party advance written notice thereof. Licensee agrees that this Agreement will automatically terminate without notice in the event Licensee discloses the Software in breach of Section 4 (Confidentiality) below. Upon any expiration or termination of this Agreement, the rights and licenses granted to Licensee under this Agreement shall immediately terminate, and Licensee shall immediately cease using, and will destroy or render practically inaccessible the Software, Documentation, and all other tangible items in Licensee’s possession or control that contain Confidential Information. The rights and obligations of the parties set forth in this document survive termination or expiration of this Agreement for any reason.

4. Confidentiality

1. “Confidential Information” shall mean the Software, all information regarding the Software (including any trade secrets, know-how, inventions, techniques, processes, and algorithms embodied in the Software), Documentation, Performance Data, any Updates, Affinity Algorithms products, product roadmaps, and other technical, business, financial and product development plans, forecasts and strategies, and other information provided by Affinity Algorithms to Licensee under this Agreement, whether disclosed orally, in writing, or by examination or inspection, other than information that Licensee can demonstrate (i) was already known to Licensee, other than under an obligation of confidentiality, at the time of disclosure; (ii) was generally available in the public domain at the time of disclosure to Licensee; (iii) became generally available in the public domain after disclosure other than through any act or omission of Licensee; (iv) was subsequently lawfully disclosed to Licensee by a third party without any obligation of confidentiality; or (v) was independently developed by Licensee without use of or reference to any information or materials disclosed by Affinity Algorithms or its suppliers. If Licensee wishes to disclose to Affinity Algorithms any information under this Agreement that Licensee considers proprietary or confidential to Licensee (“Licensee Information”), then Licensee agrees such disclose will be governed by a separate non-disclosure agreement (“NDA”) by and between the parties. If Licensee is required to disclose Confidential Information by applicable law or court order, Licensee shall notify Affinity Algorithms of the required disclosure promptly in writing and shall cooperate with Affinity Algorithms in any lawful action to contest or limit the scope of the required disclosure. Licensee shall not use any Confidential Information for any purpose other than as expressly authorized under this Agreement. In no event shall Licensee use the Software or any Confidential Information to develop, manufacture, market, sell, or distribute any product or service, including any Affinity Algorithms products except as expressly set forth in this Agreement. Licensee shall not disclose any Confidential Information to any third party. Without limiting the foregoing, Licensee shall use at least the same degree of care that it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care, to prevent the disclosure of such Confidential Information.
2. Additional Confidentiality Restrictions for Highly Confidential Software. For certain Software designated by Affinity Algorithms in writing as highly confidential (“Highly Confidential Software”), Licensee agrees that the following, additional confidentiality obligations and restrictions will apply:
   1. Improper Disclosure of Highly Confidential Software. Licensee acknowledges that damages due to Licensee’s improper disclosure of Highly Confidential Software or related information concerning product features, future technologies and roadmaps may be irreparable and that monetary damages would be inadequate to compensate Affinity Algorithms for any breach of this Agreement. In the event that Affinity Algorithms reasonably believes that Licensee has disseminated Highly Confidential Software or related information concerning product features, future technologies and roadmaps to an unauthorized party, Licensee will be immediately removed from Affinity Algorithms’ Software program and will not be permitted to participate in any Affinity Algorithms Software program in the future. Additionally, all rights and licenses granted to Licensee under this Agreement shall immediately terminate in accordance with Section 3 herein (Term and Termination), and (b) in addition to all other remedies available in law or otherwise, Affinity Algorithms is entitled to seek equitable relief, including injunction and preliminary injunction against the threatened breach of this Agreement or the continuation of any such breach.

5. Limitation of liability

It is understood that the Software is provided without charge for the purposes expressly permitted under this Agreement. Accordingly, to the fullest extent permitted by law, but subject always to this Section 5, the total liability of Affinity Algorithms and its licensors arising out of or related to this Agreement shall not exceed $1.00. To the fullest extent permitted by law, in no event shall Affinity Algorithms or its licensors have liability for any indirect, incidental, special, or consequential damages or damages for loss of business profits, business interruption, or loss of business information, however caused and on any theory of liability (including without limitation, tort, statute, contract or other), even if Affinity Algorithms and its licensors have been advised of the possibility of such damages. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy. The parties acknowledge that the various considerations due to Affinity Algorithms in accordance with the terms of this Agreement were taken into account in determining the limitation of liability set forth in this Section 5. Licensee acknowledges and agrees this limitation is an essential element of this Agreement and that Affinity Algorithms would not enter into this Agreement without these limitations on its liability.

6. Warranty disclaimer

It is understood that the Software and any Updates may contain errors and are provided for the purposes expressly permitted under this Agreement. To the fullest extent permitted by law, and subject to Section 5, the Software, and any Updates are provided “as is” without warranty of any kind, whether express, implied, statutory, or otherwise. To the fullest extent permitted by law, and subject to Section 5, Affinity Algorithms and its licensors specifically disclaim all implied warranties of merchantability, noninfringement, and fitness for a particular purpose. Licensee acknowledges that Affinity Algorithms has not publicly announced the availability of the Software, that such Software may contain features currently under development, that Affinity Algorithms has not promised or guaranteed to Licensee that such Software will be announced or made available to anyone in the future, that Affinity Algorithms has no express or implied obligation to Licensee to announce or introduce the Software, that Affinity Algorithms may not introduce a product similar to or compatible with the Software, and that any version number (if any) referenced is subject to change and does not in any way represent Affinity Algorithms’ commitment to release any product in the future. Accordingly, Licensee acknowledges that any research or development that it performs regarding the Software or any product associated with the Software is done entirely at Licensee’s own risk. Specifically, the Software may contain features, functionality or modules that may not be included in the generally available commercial version of the Software, if released, or that will be marketed separately for additional fees.

7. Other provisions

1. Governing Law, Injunctive Relief and Legal Costs.
   1. Choice of Law. This Agreement and any dispute arising out of or related to this Agreement or the Software (“Dispute”) will be governed by Texas law, without regard to its choice of law principles. The United Nations Convention for the International Sale of Goods shall not apply.
   2. Injunctive Relief. Either party may, at its sole discretion, seek preliminary judicial relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief). Also, the provisions of this Section 7 (a) may be enforced by any court of competent jurisdiction.
2. Export Regulations. The Software is of United States origin and is provided subject to the U.S. Export Administration Regulations. Diversion contrary to U.S. law is prohibited. Without limiting the foregoing, you agree that (1) you are not, and are not acting on behalf of, any person who is a citizen, national, or resident of, or who is controlled by the government of, Cuba, Iran, North Korea, Sudan, or Syria, or any other country to which the United States has prohibited export transactions; (2) you are not, and are not acting on behalf of, any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (3) you will not use the Software for, and will not permit the Software to be used for, any purposes prohibited by law, including, without limitation, for any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons.
3. Modification. This is the entire agreement between the parties relating to the subject matter hereof and to the fullest extent permitted by law, all other terms, representations, negotiations, arrangements or understandings are rejected. This Agreement supersedes and replaces any other agreements, representations, negotiations, arrangements or understandings between the parties and Licensee hereby waives any form requirements that may be contained in previous agreements and agrees that this Agreement shall take precedent with respect to its subject matter. No party has entered into this Agreement relying on any representations made by or on behalf of the other, other than those expressly made in this Agreement. No waiver or modification of this Agreement shall be valid unless in writing signed by each party.
4. Language of Contract. The parties have required that this Agreement and all documents relating thereto be drawn up in English.
5. Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
6. Waivers. Any waiver of these terms must be in writing and signed by the waiving party to be effective.
7. Data Collection and Privacy.
   1. Consent for Collection and Use of Technical Data. You agree that Affinity Algorithms may periodically collect, process and store technical and related information about your use of the Software, including without limitation: internet protocol address, internet browser version, the successful installation and launch of Software, and Software usage statistics (collectively, “Technical Data”). Affinity Algorithms will use Technical Data for internal statistical and analytical purposes to facilitate support, invoicing or online services, the provisioning of updates, and the development of Affinity Algorithms products and services. Affinity Algorithms may transfer Technical Data to other companies in the Affinity Algorithms worldwide group of companies from time to time.
   2. Log Files. You acknowledge that correspondence and log files generated in conjunction with a request for support services may contain sensitive, confidential or personal information. You are solely responsible for taking the steps necessary to protect such data, including obfuscating the logs or otherwise guarding such information prior to sending it to Affinity Algorithms.
8. Independent Parties. The parties are independent. Nothing in this Agreement shall be construed to create a partnership, joint venture, contractor, or agency relationship between the parties.

8. Assignment

Licensee shall not and cannot assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law, merger, acquisition of stock or assets, or otherwise without the prior written consent of Affinity Algorithms. Any attempted assignment or transfer in violation of the foregoing will be null and void. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.

9. Contact information

If you have any questions about this Agreement, please direct all correspondence to: admin@affinityalgo.com. Affinity Algorithms and UGTU are trademarks of Affinity Algorithms, LLC.