Ten Thousand Dice 2.40

TEN THOUSAND DICE LICENSE AGREEMENT

BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING THE

TEN THOUSAND DICE SOFTWARE (THE PRODUCT), THE INDIVIDUAL

OR ENTITY LICENSING THE PRODUCT (LICENSEE) IS CONSENTING

TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT.

IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS

AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE

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TEN THOUSAND DICE LICENSE AGREEMENT

BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING THE

TEN THOUSAND DICE SOFTWARE (THE PRODUCT), THE INDIVIDUAL

OR ENTITY LICENSING THE PRODUCT (LICENSEE) IS CONSENTING

TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT.

IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS

AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE

SELECTED, AND LICENSEE MUST NOT INSTALL OR USE THE PRODUCT.

1. LICENSE GRANT. Earl N. Waud (ENW Software) grants Licensee a

non-exclusive and non-transferable license to reproduce and use for

personal or internal business purposes the executable code version of

the Product, provided any copy must contain all of the original proprietary

notices. This license does not entitle Licensee to receive from ENW

Software hard-copy documentation, technical support, telephone assistance,

or enhancements or updates to the Product. Licensee may not redistribute

the Product. In the event Licensee wishes to redistribute or sublicense

the Product, either for profit or otherwise, Licensee must first obtain

written permission from ENW Software to do so.

2. RESTRICTIONS. Except as otherwise expressly permitted in this

Agreement, Licensee may not: (i) modify or create any derivative works

of the Product or documentation, including translation or localization;

(ii) decompile, disassemble, reverse engineer, or otherwise attempt to

derive the source code for the Product (except to the extent applicable

laws specifically prohibit such restriction); (iii) redistribute, encumber,

sell, rent, lease, sublicense, or otherwise transfer rights to the Product;

(iv) remove or alter any trademark, logo, copyright or other proprietary

notices, legends, symbols or labels in the Product; or (v) publish any

results of benchmark tests run on the Product to a third party without

ENW Softwares prior written consent.

3. TERMINATION. Without prejudice to any other rights, ENW Software may

terminate this Agreement if Licensee breaches any of its terms and

conditions. Upon termination, Licensee shall destroy all copies of the

Product.

4. PROPRIETARY RIGHTS. Title, ownership rights, and intellectual property

rights in the Product shall remain in ENW Software and/or its suppliers.

Licensee acknowledges such ownership and intellectual property rights and

will not take any action to jeopardize, limit or interfere in any manner

with ENW Softwares or its suppliers ownership of or rights with respect

to the Product. The Product is protected by copyright and other

intellectual property laws and by international treaties. Licensee agrees,

at its expense, to defend and hold ENW Software and its affiliates harmless

from any and all costs, damages and reasonable attorneys fees resulting

from any claim that Licensees use of the Product has injured or otherwise

violated any right of any third party or violates any law.

5. DISCLAIMER OF WARRANTY. THE PRODUCT IS PROVIDED ON AN

AS IS BASIS, WITHOUT WARRANTY OF ANY KIND, INCLUDING

WITHOUT LIMITATION THE WARRANTIES THAT IT IS FREE OF

DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR

NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND

PERFORMANCE OF THE PRODUCT IS BORNE BY LICENSEE. SHOULD

THE PRODUCT PROVE DEFECTIVE IN ANY RESPECT, LICENSEE AND

NOT ENW SOFTWARE OR ITS SUPPLIERS OR RESELLERS ASSUMES

THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER

OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.

NO USE OF THE PRODUCT IS AUTHORIZED HEREUNDER EXCEPT UNDER

THIS DISCLAIMER.

6. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY

APPLICABLE LAW, IN NO EVENT WILL ENW SOFTWARE OR ITS SUPPLIERS

OR RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR

CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO

USE THE PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR

LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR

MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES,

EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF

THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE)

UPON WHICH THE CLAIM IS BASED. IN ANY CASE, ENW SOFTWARES

ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL

NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES LICENSEE PAID

FOR THIS LICENSE (IF ANY) AND FEES FOR SUPPORT OF THE PRODUCT

RECEIVED BY ENW SOFTWARE UNDER A SEPARATE SUPPORT AGREEMENT

(IF ANY), WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED

BY THE NEGLIGENCE OF ENW SOFTWARE TO THE EXTENT APPLICABLE LAW

PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME

JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF

INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND

LIMITATION MAY NOT BE APPLICABLE. ENW SOFTWARE IS NOT

RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED

BY LICENSEE OR A THIRD PARTY THAT IS ACCESSED THROUGH THE

PRODUCT AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.

7. EXPORT CONTROL. Licensee agrees to comply with all export laws and

restrictions and regulations of the United States or foreign agencies or

authorities, and not to export or re-export the Product or any direct product

thereof in violation of any such restrictions, laws or regulations, or

without all necessary approvals. As applicable, each party shall obtain and

bear all expenses relating to any necessary licenses and/or exemptions with

respect to its own export of the Product from the U.S.

8. HIGH RISK ACTIVITIES. The Product is not fault-tolerant and is not

designed, manufactured or intended for use or resale as on-line control

equipment in hazardous environments requiring fail-safe performance, such as

in the operation of nuclear facilities, aircraft navigation or communication

systems, air traffic control, direct life support machines, or weapons

systems, in which the failure of the Product could lead directly to death,

personal injury, or severe physical or environmental damage (High Risk

Activities). Accordingly, ENW Software and its suppliers specifically

disclaim any express or implied warranty of fitness for High Risk

Activities. Licensee agrees that ENW Software and its suppliers will not be

liable for any claims or damages arising from the use of the Product in such

applications.

9. U.S. GOVERNMENT END USERS. The Product is a commercial item, 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). 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 Product with only those rights set forth

herein.

10. MISCELLANEOUS. (a) This Agreement constitutes the entire agreement

between the parties concerning the subject matter hereof. (b) This Agreement

may be amended only by a writing signed by both parties. (c) Except to the

extent applicable law, if any, provides otherwise, this Agreement shall be

governed by the laws of the State of California, U.S.A., excluding its

conflict of law provisions. (d) Unless otherwise agreed in writing, all

disputes relating to this Agreement (excepting any dispute relating to

intellectual property rights) shall be subject to final and binding

arbitration in San Diego, California, under the auspices of the American

Arbitration Association (AAA), with the losing party paying all costs of

arbitration. (e) This Agreement shall not be governed by the United Nations

Convention on Contracts for the International Sale of Goods. (f) If any

provision in this Agreement should be held illegal or unenforceable by a

court having jurisdiction, such provision shall be modified to the extent

necessary to render it enforceable without losing its intent, or severed

from this Agreement if no such modification is possible, and other

provisions of this Agreement shall remain in full force and effect. (g)

A waiver by either party of any term or condition of this Agreement or any

breach thereof, in any one instance, shall not waive such term or condition

or any subsequent breach thereof. (h) The provisions of this Agreement which

require or contemplate performance after the expiration or termination of

this Agreement shall be enforceable notwithstanding said expiration or

termination. (i) Licensee may not assign or otherwise transfer by operation

of law or otherwise this Agreement or any rights or obligations herein

except in the case of a merger or the sale of all or substantially all of

Licensees assets to another entity. (j) This Agreement shall be binding

upon and shall inure to the benefit of the parties, their successors and

permitted assigns. (k) Neither party shall be in default or be liable for

any delay, failure in performance (excepting the obligation to pay) or

interruption of service resulting directly or indirectly from any cause

beyond its reasonable control. (l) The relationship between ENW Software

and Licensee is that of independent contractors and neither Licensee nor

its agents shall have any authority to bind ENW Software in any way. (l) ENW

Software may change the terms of this Agreement from time to time. By

continuing to use the Product beyond a period of 30 days after notice of

such change has been provided on a public website of ENW Software or its

affiliate for the first time, Licensee signifies its consent to the revised

terms.