Pivot End User License Agreement

This document contains both Pivot Solutions’ Pivot 360 and IM Trader End User License Agreement and the AIM (“AOL Instant Messenger’) terms of service. Please be sure you read the entire document.

PIVOT SOLUTIONS END USER LICENSE AGREEMENT

PIVOT 360 AND IM TRADER® CLIENT SOFTWARE

PIVOT, INC. (“LICENSOR”) IS WILLING TO LICENSE THIS SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT THE TERMS CONTAINED IN THIS LICENSE, BY ACCEPTING THE TERMS THEREIN AS PART OF THE TERMS AND CONDITIONS OF THE PIVOT, INC. LICENSE AGREEMENT AS WELL AS THE TERMS THEREIN.

Your use of the Software indicates your acceptance of these terms and conditions, including the AIM Terms of Service which are included within this agreement. Your use of the software will imply your acceptance of these conditions.

1. Definitions

(a) “Agreement” or “License Agreement” means this End User License Agreement.

(b) “Software” means the Software, in object code only, provided by LICENSOR to you hereunder, together with all LICENSOR-authorized updates, replacements or modifications provided to you. This Software may contain software licensed to LICENSOR by third parties.

(c) “Documentation” means the user guides, reference manuals, installation materials and other written materials relating to the Software that LICENSOR makes available in electronic form at LICENSOR’s Web Site at www.pivotinc.com.

(d) “Service” means LICENSOR’s IM Trader® or Pivot 360 service accessible through use of the Software.

(e) “Web Site” means the Internet site located at www.pivotinc.com.

2. Limited Use License: LICENSOR grants to you the nontransferable (except as provided below), non-exclusive right, without the right to sublicense or rent, to use the Software solely for its intended purpose. You may physically transfer the Software from one computer to another. You may not distribute copies of the Software or the accompanying Documentation to others, nor may you modify or translate the Software or Documentation.

3. Title: This Agreement is not a sale of the Software or any copy. LICENSOR (or its licensors) retains all rights, interest, title and ownership of the Software and the Documentation, including patents, copyrights, trademarks, trade secrets, and other proprietary rights applicable thereto, and all copies, regardless of the form or media on or in which the original or any copy may exist. The Software and the Documentation are protected by United States and other applicable laws and by international treaty provisions. Except as stated herein, this Agreement does not grant you any rights to patents, copyrights, trade secrets, trademarks or any other rights in respect of the Software and Documentation.

4. Confidentiality: You acknowledge that the Software and Documentation contain proprietary and confidential property of LICENSOR and/or LICENSOR’s licensors (collectively, “Confidential Information”). You will not disclose, provide or otherwise make available any such Confidential Information to any third parties.

5. Other Restrictions: You may not copy, nor encourage or allow copying of, the Software or Documentation. You may not cause or permit the disclosure, copying, renting, licensing, sublicensing, leasing, dissemination or other distribution of the Software or the Documentation by any means or in any form, without the prior written consent of LICENSOR. You may not use the Software to conduct a service bureau or similar business for the benefit of third parties. You agree that you will not, directly or indirectly, reverse engineer, disassemble, decompile or otherwise alter the Software.

This Software incorporates certain third party software. You acknowledge that such third party licensors own any and all of third party software incorporated in the Software and the trademarks, logos and icons associated with such third party software and you agree not to violate the copyright and trademarks of such third party software licensors.

6. DISCLAIMER OF WARRANTIES AND CONDITIONS: YOUR USE OF THIS PRODUCTS AND SOFTWARE IS AT YOUR SOLE RISK. THE PRODUCTS AND SOFTWARE ARE PROVIDED “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE” FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. SPECIFICALLY, THE LICENSOR OR ITS VENDORS DISCLAIMPLIED WARRANTIES THAT THE PRODUCTS AND SOFTWARE ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. THE LICENSOR AND ITS VENDORS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PRODUCTS AND SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE PRODUCTS AND SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PRODUCTS AND SOFTWARE WILL BE CORRECTED. THE LICENSOR AND ITS VENDORS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS, SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. LICENSOR PROVIDES THE PRODUCTS AND SOFTWARE ON A COMMERCIALLY REASONABLE BASIS AND DOES NOT GUARANTEE THAT USERS WILL BE ABLE TO ACCESS OR USE THE PRODUCTS AT TIMES OR LOCATIONS OF THEIR CHOOSING, OR THAT LICENSOR WILL HAVE ADEQUATE CAPACITY FOR THE PRODUCTS AS A WHOLE.

7. Limitation of Liability: IN NO EVENT WILL LICENSOR, ITS LICENSORS AND SERVICE PROVIDERS BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM LOSS OF DATA, LOSS OF USE, OR LOSS OF ANTICIPATED PROFITS) RESULTING FROM EITHER THE SOFTWARE OR DOCUMENTATION OR BOTH, EVEN IF LICENSOR OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM A PARTY’S GROSS NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. LICENSOR’S OR ITS LICENSORS’ LIABILITY TO YOU OR ANY RELATED THIRD PARTY FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO ONE THOUSAND DOLLARS ($1,000.00). Some jurisdictions do not allow the exclusion or limitation of incidental, consequential, special, punitive or indirect damages, or the limitation of liability to specified amounts, so the above limitation or exclusion may not apply to you.

8. Term: This Agreement is effective until terminated. This Agreement shall terminate automatically and your access to the Service will be suspended and your rights to continue using the Software will terminate if you breach or otherwise fail to comply with any term or condition contained herein, as applicable, or in the applicable terms and conditions located at www.pivotinc.com.

9. U.S. Government Restricted Rights. This Software and Documentation are “commercial items” as that term is defined in 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). Absent a written agreement to the contrary, the U.S. Government’s rights with respect to the Software or Documentation are limited by the terms of this Agreement, pursuant to U.S. Federal Acquisition Regulations §12.212(a) and/or Defense Federal Acquisition Regulations Supplement § 227.7202-1 through 227.7202-4, as applicable.

10. Export: You acknowledge that the Software, Documentation and/or technical data associated therewith (“Technical Data”) are subject to the export control laws of the United States. You agree that you shall comply with all applicable U.S. export control laws and regulations, and shall not export or re-export the Software, Documentation and/or Technical Data, or direct products thereof, except as authorized by U.S. law.

Without limiting the foregoing, you acknowledge that you are not a person or entity prohibited from receiving U.S. exports or a person or entity which engages in the development, production, or stockpiling of missiles or nuclear, chemical, or biological weapons. You further acknowledge that (i) you are not located in, and (ii) are not a national of U.S.-embargoed country or area. You agree not to export, re-export or otherwise disclose the Software, Documentation and/or Technical Data to any national of the above-listed countries, or to any other person or entity prohibited from receiving U.S. exports or to any entity which engages in the development, production or stockpiling of missiles or nuclear, chemical or biological weapons.

Without limiting any of the foregoing, in the event you export the Software, Documentation or Technical Data from the country in which you first received it, you assume the responsibility for compliance with all applicable export and re-export regulations, as the case may be.

11. General: This Agreement constitutes the entire agreement between the parties, and supersedes all prior written or oral agreements pertaining to the subject matter hereof. This Agreement shall not be amended, altered or changed by any purchase order or other instrument submitted by you, whether formally rejected by LICENSOR or not. If LICENSOR provides any modification, enhancement, replacement or update for the Software to you, such modification, enhancement, replacement, or update shall be governed by the terms of this Agreement, or any additional or different terms and conditions that LICENSOR may require as a condition to your using such modification, enhancement, replacement or update. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and shall not affect the enforceability of any other provision of this Agreement. You shall be responsible for and shall pay, and shall reimburse LICENSOR on request if LICENSOR is required to pay, any sales, use, value added (VAT), consumption or other tax (excluding any tax that is based on LICENSOR’s net income), assessment, duty, tariff, or other fee or charge of any kind or nature that is levied or imposed by any governmental authority on the Software or the Documentation. LICENSOR will not be deemed in default of any obligation hereunder nor be liable for any failure or delay in performance which results directly or indirectly from any cause beyond its reasonable control, including without limitation, “Acts of God,” delays or failures in the Internet or related carriers and third-party equipment, acts of civil or military authority, strikes, fire, theft, delays by suppliers, or action or inaction by you or any third party.

 

12. Respect for Rights and Indemnification: You agree that you shall only use the Software, the Documentation and the Service in a manner that complies with this Agreement, and all applicable laws in the jurisdiction in which you use the Software and Documentation, including but not limited to, applicable restrictions concerning copyright and other intellectual property rights. This Software is intended for use only with properly licensed media and content. It is your responsibility to ascertain whether any copyright, patent, or licenses are necessary and to obtain any such licenses to duplicate, modify, transmit, distribute, and/or create or compress such media or content. You agree to indemnify, defend, and hold harmless LICENSOR and its affiliates, licensors, suppliers, officers, directors, employees and agents from and against any and all losses, damages, costs, expenses (including reasonable court costs and attorneys’ fees), fines, or claims arising from or relating to any claim (i) connected with your use of the Software and./or the Service; or (ii) that the Software and Documentation was used by you in connection with the duplication, modification, transmission or distribution of or any other action relating to any content or materials in violation of another party’s rights or in violation of any law.

You may not use the Software in conjunction with any device or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction.

13. Choice of Law: This Agreement will be governed by, and any arbitration hereunder shall apply, the laws in force in the Commonwealth of Massachusetts excluding (i) the application of its conflicts of law rules; (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods (the “1974 Convention”); and (iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980.