SurfRecon Software End User License Agreement

DO NOT DOWNLOAD, INSTALL OR USE THIS SOFTWARE (THE SURFRECON SOFTWARE) UNTIL YOU HAVE READ AND ACCEPTED THIS LICENSE AGREEMENT. BY DOWNLOADING, INSTALLING OR USING THIS SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS LICENSE AGREEMENT AND ACCEPT IT, AND YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THIS LICENSE AGREEMENT YOU DO NOT HAVE A LICENSE AND YOU MUST NOT DOWNLOAD, INSTALL OR USE THE LICENSED SOFTWARE. IF THIS SOFTWARE HAS BEEN DELIVERED TO YOU, AND YOU DO NOT AGREE TO THIS LICENSE AGREEMENT, THEN: (A) YOU MUST NOT INSTALL OR USE THE LICENSED SOFTWARE, AND (B) YOU MUST PROMPTLY RETURN THE LICENSED SOFTWARE (INCLUDING ALL ACCOMPANYING MEDIA, PORTABLE MEMORY DEVICE, DOCUMENTATION, PACKAGING AND MATERIALS) TO THE SOURCE YOU OBTAINED THEM FROM IN AN UNDAMAGED CONDITION TOGETHER WITH A COPY OF YOUR DATED PROOF OF PURCHASE. ANY LICENSE FEE OR PAYMENT BY YOU FOR THIS LICENSE OR FOR A SUBSCRIPTION WILL BE REFUNDED TO YOU IF THE RETURN IS MADE WITHIN 30 DAYS OF YOUR FIRST RECEIPT OF ANY OF THIS SOFTWARE. SURFRECON MAY REQUIRE THAT YOU OBTAIN THE REFUND, IF APPLICABLE, FROM THE SOURCE, IF THE SOURCE IS DIFFERENT THAN SURFRECON. SURFRECON HAS NO OBLIGATION TO MAKE OR CAUSE A REFUND IF YOU DO NOT COMPLY WITH THE FOREGOING.

1. SurfRecon Software — A Product of SurfRecon, Inc. The SurfRecon Software is referred to as the "Software" and is a product of SurfRecon, Inc. ("SurfRecon"). The Software is an e-discovery tool designed to assist law enforcement personnel, personnel managers, and others to discover, analyze, categorize and report the file content (e.g., pornographic or sexual images), if any, of computers and other compatible digital devices. One or more copies of the Software have been or will be provided to Licensee. The Software may be used, copied and distributed by Licensee consistent with this Agreement.

2. Licensee. This License is for, and limited to, one "Licensee" who must be an individual "natural person" and not a corporation, limited liability company, government agency, association, partnership, or other organization or "juristic person." "Licensee" is the individual natural person who accepted this Agreement on behalf of himself or herself. The Licensee is the person to whom the Licensed Software (as defined below) is licensed. Although the Licensed Software is only licensed to the Licensee, the Licensee may use the Licensed Software for his or her employer or as part of his or her services for a customer or client. If other employees or the employer or if other persons desire to use the Licensed Software, they must obtain their own licenses from SurfRecon, and nothing in this Agreement grants or requires SurfRecon to grant such licenses. As further described below, the Licensed Software is licensed to Licensee on a "Named User" basis and may only be used by Licensee as a Named User.

3. The License. Subject to this Agreement and Licensee's compliance with this Agreement, SurfRecon grants to Licensee a nonexclusive, nontransferable license to use the Licensed Software and Documentation (as those terms are defined below) in accordance with this Agreement for Licensee's own use only and only as a Named User (the "License"). "Licensee's own use" includes use by Licensee for his or her personal persons and use by Licensee for his or her employer or as part of his or her services for a customer or client. Rights not expressly granted to Licensee in this Agreement are reserved by SurfRecon. If this License (or the Software) is designated by SurfRecon as a Beta License (or Beta Version) or Evaluation License (or Evaluation Version), then this License is subject to Sections 40 and 41.
  1. Named User. A "Named User" must be an individual natural person who is registered with SurfRecon (however, registration is not necessary for use under an Evaluation License - see Section 40 below). Licensee may register himself or herself with SurfRecon in accordance with SurfRecon's then-current registration procedures for Named Users. A Named User is an individual identified by name. The registration of a Named User is not transferrable to another person. The License is personal and limited to the Licensee as a Named User.
  2. Copies and Distribution to Others. The License includes authorization for Licensee to copy the Licensed Software and to distribute such copies to other persons, provided, however, that such other persons may not use the Licensed Software unless and until they first agree to this Agreement and become Licensees registered as Named Users (however, registration is not necessary for use under an Evaluation License - see Section 40 below). If and when another person agrees to this Agreement, a separate contract is formed between the other person and SurfRecon and a separate license is granted to the other person. Such separate contract is not part of the contract between this Licensee and SurfRecon. Any distribution by Licensee of any copy of any Licensed Software to others must include a copy of this Agreement in a manner that reasonably ensures that the recipient will have full notice of this Agreement and an opportunity to accept it.
  3. Portable Memory Devices, Forensic Computers, and Target Computers. The Software is intended for use on a Portable Memory Device or on a Forensic Computer or on a Target Computer. A "Portable Memory Device" is a memory stick, thumb drive, external hard drive or other portable memory device on which the Software is stored and that can be directly and physically connected to a Target Computer to enable the Software resident on the memory stick, thumb drive, external hard drive or other portable memory device to scan the Target Computer for file content. A "Forensic Computer" is a computer on which the Software is run in order to scan a Target Computer for image content and/or to analyze such image content. A "Target Computer" is a computer or other compatible digital processing device or storage medium (e.g., hard drive) that is scanned for image content or from which image content is obtained and analyzed. A computer can be both a Forensic Computer and a Target Computer when the Software is installed on the computer and used for scanning the computer (in which case the computer functions as both the Forensic Computer and the Target Computer). There is no limit under this License on the number of Portable Memory Devices, Forensic Computers or Target Computers, provided that the Licensed Software may only be deployed or installed under this License on Portable Memory Devices and Forensic Computers that are the property of Licensee or his or her employer (or are leased to Licensee or his or her employer) and are under the control of Licensee or his or her employer.
4. Subscription Fees. Unless Licensee pays SurfRecon's then-current Subscription Fees, the License is an Evaluation License - see Section 40 below. There is no charge for an Evaluation License. Access to and use of File Data (see Section 5 below) requires payment by Licensee to SurfRecon of SurfRecon's then-current Subscription Fees. If the Subscription Fees are not paid by Licensee, then the License automatically converts to an Evaluation License.

5. File Data and Subscription. The SurfRecon Software product includes File Data. "File Data" are the metadata that are relevant to file content and that are provided by SurfRecon to Licensee. File Data do not include graphical images. Limited File Data may be provided with the Software. Additional File Data are available online to Licensee from SurfRecon through a subscription service in accordance with SurfRecon's then-current instructions for downloading or obtaining such additional File Data. To obtain additional File Data, Licensee must register (see Section 18) and sign up for the subscription service, and follow the applicable instructions. Additional information may be required by SurfRecon from the Licensee when registering as a Named User. Whenever the context reasonably permits, any reference in this Agreement to Software or Licensed Software will also apply to File Data. File Data are licensed to Licensee under the terms and restrictions of the License and this Agreement as they apply to Licensed Software. File Data may include subject matter licensed by others to SurfRecon, in which case the license of such subject matter to Licensee is a sublicense by SurfRecon to Licensee. SurfRecon has no obligation to include, provide, or license any File Data that SurfRecon elects to exclude from the License or otherwise withhold. As a subscriber, Licensee will be allocated a maximum amount of queries which can be used each month to access the File Data. The maximum queries depends upon the type of license or subscription purchased. A Home Edition license or subscription entitles Licensee up to 200,000 queries per month; A Business Edition license or subscription entitles Licensee up to 5,000,000 queries per month; and an Elite license or subscription entitles Licensee up to 5,000,000 queries per month. If Licensee exceeds the allotment of queries, SurfRecon may choose to block access to the File Data until the start of the next month. Additional queries is available to subscribers for purchase from SurfRecon for an additional payment.

6. Documentation. "Documentation" means the documentation (in any form, electronic, online, printed or otherwise), if any, provided to Licensee in connection with the Software. Documentation includes the instructions of Section 15. Whenever the context reasonably permits, any reference in this Agreement to Software or Licensed Software shall also apply to Documentation. The Documentation may be used by Licensee, but only to enable or facilitate Licensee's licensed use of the Licensed Software. However, if any documentation received by SurfRecon from any third party licensors of Open Source Software is provided to Licensee, then such documentation will be governed by the applicable Open Source License Agreements if such agreements include any provisions governing such documentation - see Sections 9 and 10 below.

7. Submissions. The Software is designed to allow Licensee to submit data (e.g., metadata) relating to image content (e.g., graphical images) and other file content to SurfRecon. Licensee has no obligation to submit data to SurfRecon, but if Licensee does so, then Licensee must follow SurfRecon's then-current reasonable instructions for submission of data. All data submitted by Licensee to SurfRecon are referred to as "Submissions" and will be the property of SurfRecon. Licensee must not submit any data to SurfRecon where such submission or data infringe, misappropriate or violate any intellectual property, privacy, or other right of any third party or violate any law or government regulation. Licensee will indemnify SurfRecon against, and hold it harmless from, any claims, litigation, judgments, settlements, losses, damages, costs, and attorneys' fees caused by or arising from any such infringement, misappropriation or violation or allegations thereof. Licensee agrees to assign, and hereby assigns, to SurfRecon any intellectual property in or to the data submitted to SurfRecon. There are no monetary payments for this assignment, and as the owner of such Submissions, SurfRecon is free to use, copy, distribute, disclose, publish, display, modify, practice, make, sell, offer for sale, import, export, and otherwise commercialize the Submissions and to create derivative works based thereon and to authorize others to do so. SurfRecon has no obligation to account to Licensee with respect to such Submissions, and no obligation to use, publish, distribute or commercialize any such Submissions.

8. Recommendations, Ideas, etc. If and to the extent that Licensee submits or discloses any recommendations, ideas, inventions, works of authorship, and other subject matter (other than Submissions as defined above) to SurfRecon, SurfRecon will have (and Licensee grants to SurfRecon) an irrevocable, world-wide, non-exclusive license to SurfRecon to use, copy, distribute, disclose, publish, display, modify, practice, make, sell, offer for sale, import, export, and otherwise commercialize the foregoing and to create derivative works based thereon and to authorize others to do so. This includes a license of any intellectual property in or to such recommendations, ideas, inventions, works of authorship, and other subject matter (other than Submissions as defined above) and the right for SurfRecon to grant sublicenses to others.

9. Open Source Software and Licensed Software. The Software may include or be accompanied by Open Source Software. The "Open Source Software" consists of computer programs obtained by SurfRecon from other sources under Open Source License Agreements for inclusion (in an unmodified form or in a modified or derivative work form) in or with the Software. The "Licensed Software" consists of the Software excluding any Open Source Software, but including the SurfRecon Contributions (as defined below). The "Licensed Software" is comprised of computer programs created or acquired by or for SurfRecon as commercial software proprietary to SurfRecon. The Licensed Software also includes the SurfRecon Contributions. To the extent that any Open Source Software is included in or with the Software, such Open Source Software will be governed by Sections 10 to 12 below.

10. Open Source Software and Open Source License Agreements. To the extent that Open Source Software programs are included in or with the Software, they are governed by and licensed or distributed to Licensee under their respective Open Source License Agreements. "Open Source License Agreements" are the licenses or agreements under which Open Source Software programs were obtained by SurfRecon. Copies of such Open Source License Agreements are currently available to Licensee from SurfRecon or are included in the documentation of the Software. Open Source License Agreements do not include any GNU GPL or GNU LGPL license or agreement (see Section 13). SurfRecon has no obligation or liability under or relating to such Open Source License Agreements or any Open Source Software.

11. Derivative Software and SurfRecon Contributions. The Software may include Open Source Software programs that have been modified by or for SurfRecon and derivative works that are based on Open Source Software and that have been created by or for SurfRecon. These modified programs and derivative works are referred to herein as "Derivative Software." The modifications (including changes and additions) to these Open Source Software programs and the derivative works based on these Open Source Software programs created by or for SurfRecon are proprietary to SurfRecon, and SurfRecon claims its copyrights and other proprietary rights thereto. These modifications (including changes and additions) and derivative works are referred to herein as the "SurfRecon Contributions." SurfRecon does not claim any copyright or proprietary rights to the original and unmodified code in the Open Source Software programs (as obtained by SurfRecon under the Open Source License Agreements) from which the Derivative Software was created or to any such original and unmodified code that remains in the Derivative Software. The Open Source Software programs on which the Derivative Software is based are available to Licensee as described in Section 12 below under their applicable Open Source License Agreements. However, such Derivative Software is not licensed to Licensee under these Open Source License Agreements because Derivative Software includes SurfRecon Contributions proprietary to SurfRecon. Instead, the SurfRecon Contributions in the Derivative Software are licensed under Section 3 and this Agreement to Licensee as part of the Licensed Software.

12. Availability of Open Source Software. The Open Source Software, including its source code, is currently available to Licensee from SurfRecon through its website, or if not on the website then by contacting SurfRecon with a written request for such Open Source Software. This does not include or apply to any SurfRecon Contributions.

13. GNU Programs Excluded. Notwithstanding anything to the contrary, the definition of "Open Source Software" as used in this Agreement does not include any computer programs obtained or distributed by SurfRecon under any GNU GPL or GNU LGPL license ("GNU Programs"). If and to the extent that any GNU Programs are provided or distributed, directly or indirectly, by SurfRecon to Licensee they are not considered part of the Software or Licensed Software, but may be used by Licensee in accordance with their applicable GNU GPL or GNU LGPL license and agreement. SurfRecon makes no warranty or representation concerning any GNU Programs and has no obligation concerning any of them. Under no circumstances does SurfRecon give any consent or permission for any of the Software or Licensed Software to be or become subject to any GNU GPL or GNU LGPL license or agreement. "GNU GPL" means any past, present or future GNU General Public License. "GNU LGPL" means any past, present or future GNU Lesser General Public License or GNU Library General Public License.

14. Intellectual Property and Source Code. Licensee agrees that SurfRecon owns the copyrights and intellectual property in and to the Licensed Software, File Data and Documentation. Licensed Software, File Data and Documentation are licensed by SurfRecon to Licensee through the License of this Agreement. Licensee is not entitled to any Licensed Software source code unless, and only to the extent that, such source code is included by SurfRecon in or with the Software provided to Licensee, or SurfRecon otherwise makes such source code available to Licensee. If and to the extent that any such source code is included in or with the Software or made available by SurfRecon to Licensee, then it is part of the Licensed Software licensed by SurfRecon under the License and is governed by this Agreement, and Licensee must keep such source code confidential and not use it for any purpose other than to facilitate the exercise of the License.

15. Instructions. Instructions for the use of the Software are found at www.surfrecon.com/support or included in or with the Software and must be followed by Licensee.

16. Licensed, Not Sold. Licensed Software is not sold, but is licensed to Licensee, i.e., only the license is sold to Licensee.

17. Maintenance Releases, etc. SurfRecon has no obligation under this End User License Agreement to provide any maintenance releases, fixes, patches, work-around solutions, upgrades, or updates to Licensee - see also Section 29. However, if and to the extent that any maintenance releases, fixes, patches, work-around solutions, upgrades, and updates for or to the Software are made available or provided by SurfRecon or its distributors, dealers, OEMs, VARs or other resellers to Licensee, they shall be deemed part of the Software, and shall be SurfRecon Software, Open Source Software, Derivative Software, SurfRecon Contributions, Licensed Software, etc. as applicable in accordance with the definitions and descriptions in this Agreement, and shall be governed by this Agreement (or in the case of Open Source Software the applicable Open Source License Agreements), unless a different license agreement from SurfRecon is provided with or made applicable to such maintenance releases, fixes, patches, work-around solutions, upgrades, and updates (in which case, such different license agreement shall apply and govern).

18. Registration and Software Protection. To use the Licensed Software (other than under the Evaluation License - see Section 40), Licensee must first register as a Named User with SurfRecon through SurfRecon's then-current registration process, which may be through the Internet or by other means. Registration may require acceptance of this Agreement. Licensee must respect and not circumvent SurfRecon's registration process. Registration may require Licensee to pay the Subscription Fees to SurfRecon. Registration and Subscription Fees are not required for an Evaluation License - see Section 40.

19. Copies of Licensed Software. Subject to Section 3, Licensee may make copies of Licensed Software only for archival purposes to back-up the licensed use of the Licensed Software. Subject to Section 3, Licensee may also make copies of the Licensed Software to the extent reasonably needed to exercise rights under the License or this Agreement. Any SurfRecon copyright, trademark, patent and propriety rights notices must be faithfully reproduced and included on copies made by Licensee to the extent that it is practicable to do so. Licensee may not make any other copies of the Licensed Software except as expressly permitted in Section 3.

20. Protection Of Licensed Software. Unless and except as expressly authorized in this Agreement and subject to Section 38 (Severability), Licensee may not: (i) disassemble, decompile or otherwise reverse engineer Licensed Software, or attempt to recreate or discover any source code of or from the Licensed Software, or (ii) modify any Licensed Software or create derivative works based upon Licensed Software, or (iii) rent, lease, sublicense, distribute, transfer, copy, reproduce, or timeshare Licensed Software, or (iv) allow any third party to access or use Licensed Software, or use Licensed Software for an third party (i.e., the License is an internal use license only). Licensee must respect and not circumvent any lawful copy protection or other mechanisms or procedures for protecting the Licensed Software against unlicensed copying, distribution or use, as such copy protection and other lawful mechanisms or procedures may be implemented or reasonably required by SurfRecon from time to time.

21. Licensed Version. Except as otherwise provided in Section 17 above, the only version of Licensed Software licensed to Licensee is the version provided to Licensee in connection with this Agreement and Licensee has no license or rights with respect to any other version of Licensed Software.

22. No Distribution Rights. The License and this Agreement do not include any license, right or authorization to distribute or transfer any Licensed Software or any derivative works or any copy thereof to any third party except as provided in Section 3(b). Licensee may contact SurfRecon concerning the availability of distribution, OEM, VAR, integrator or reseller opportunities.

23. Limited Warranty - Media and Documentation. SurfRecon warrants that if the Software media or printed Documentation, if any, provided by SurfRecon are in a damaged or physically defective condition when delivered and if they are returned to SurfRecon (postage prepaid) within 30 days of the date of first received by Licensee, together with a copy of a dated proof of purchase, then SurfRecon will provide Licensee with replacements at no charge. If the Software is provided or distributed to Licensee on a Portable Memory Device from SurfRecon, then any reference in this Section to media will mean that Portable Memory Device.

24. Limited Warranty - Licensed Software. SurfRecon warrants that if the Licensed Software fails to conform in all material respects to its specifications in the Documentation provided by SurfRecon with the Licensed Software, and if the nonconformity is reported in writing by Licensee (together with a copy of the dated proof of purchase) to SurfRecon within 30 days from the date any Licensed Software is first received by Licensee, then SurfRecon will, at SurfRecon's sole discretion, either remedy the nonconformity or provide a work-around solution, or offer to refund the purchase price to Licensee upon a return of the Licensed Software (including all packaging, media, Portable Memory Device, and documentation) to SurfRecon. If Licensee purchased the License to the Licensed Software from an authorized reseller, then SurfRecon may require the Licensee to obtain the refund from the reseller and Licensee's sole recourse shall be with respect to that reseller. There is no warranty and no obligation to make a refund if the License is purchased or the Licensed Software is obtained from a reseller or other source not authorized by SurfRecon to resell or sell this License. If Licensee desires to accept the offer of a refund, then such offer must be accepted in writing within two weeks of the date the offer is received by Licensee. If the offer is not accepted, then the Licensed Software is accepted "as is" and all warranties are deemed satisfied in full. In the event of a refund, the License and all of Licensee's rights under this Agreement shall terminate. The purchase price means the fee paid by Licensee for the license to use the non-conforming Licensed Software or a fair allocation of the last recent payment of the Subscription Fee. This warranty does not apply to maintenance releases, fixes, patches, work-around solutions, upgrades, and updates (see Section 17), or to Open Source Software or GNU Programs, or to Evaluation Licenses or Evaluation Versions (see Section 40), or to Beta Licenses or Beta Versions (see Section 41) and no right of return or refund applies to any of them.

25. Disclaimer. SURFRECON MAKES NO WARRANTY, PROMISE OR REPRESENTATION NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. EXCEPT AS EXPRESSLY WARRANTED HEREIN, THE SOFTWARE, FILE DATA, AND DOCUMENTATION ARE PROVIDED "AS IS" WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. SURFRECON MAKES NO WARRANTY OR REPRESENTATION WITH RESPECT TO THIRD PARTY SOFTWARE. ANY OPEN SOURCE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. SURFRECON DISCLAIMS AND EXCLUDES ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SURFRECON DOES NOT WARRANT THAT THE SOFTWARE, FILE DATA OR DOCUMENTATION WILL SATISFY LICENSEE'S REQUIREMENTS, OR THAT THEY ARE COMPLETE OR WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED, OR THAT ALL OR ANY PARTICULAR IMAGE OR OTHER CONTENT WILL BE DISCOVERED. SURFRECON HAS NO OBLIGATION TO VERIFY FILE DATA OR TO ENSURE THAT THEY ARE FREE OF THIRD PARTY CLAIMS OR RIGHTS. THIS AGREEMENT GIVES LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MIGHT HAVE OTHER RIGHTS, WHICH MAY VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.

26. Limitation On Liability. THE AGGREGATE LIABILITY OF SURFRECON ARISING FROM OR RELATING TO THIS AGREEMENT, OR ANY OF THE SOFTWARE, FILE DATA, OR DOCUMENTATION (REGARDLESS OF THE FORM OF ACTION OR CLAIM - E.G., CONTRACT, WARRANTY, TORT, STRICT LIABILITY, MALPRACTICE, AND/OR OTHERWISE) SHALL NOT EXCEED THE TOTAL PAYMENT MADE BY LICENSEE UNDER THIS AGREEMENT. SURFRECON SHALL NOT IN ANY CASE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR LOSS OF PROFIT, REVENUE, DATA, OR PROGRAMS, EVEN IF SURFRECON HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. THIS SECTION APPLIES TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MIGHT NOT APPLY.

27. Responsibility For Decisions; Limits on Use. Licensee is responsible for decisions made and actions taken based on Software, File Data or Documentation. The Software is not intended, provided or licensed for use in any hazardous or high risk activity.

28. Sole Remedy and Allocation of Risk. LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY OR DEFECT OR ERROR IN THE SOFTWARE, FILE DATA OR DOCUMENTATION IS SET FORTH IN THIS AGREEMENT, AND SURFRECON WILL HAVE NO OTHER LIABILITY. This Agreement defines a mutually agreed-upon allocation of risk and the payments reflect such allocation of risk.

29. Support. Nothing in this Agreement entitles Licensee to any support, maintenance, services, or new versions or distributions of the Software or any other software, data or documentation. Licensee may contact SurfRecon to determine the availability of support, maintenance, services, and new versions and distributions of Software, and the fees, terms and conditions applicable thereto. See also Section 17.

30. Non-Parties. The officers, directors, employees, shareholders and representatives of SurfRecon are not parties to this Agreement and shall have no personal obligation or liability to Licensee relating to this Agreement or the Software.

31. Taxes. In the event that any sales, use, value added, withholding or other taxes, duties or government fees, assessments or charges are payable because of this Agreement or any License, transaction or payment under this Agreement or for the License, or use of any Software, then Licensee shall pay such taxes, duties, fees, assessments and charges in a timely manner and shall hold SurfRecon harmless therefrom. They are not included in any fees or payments otherwise payable to SurfRecon. If SurfRecon pays any of the foregoing, then Licensee shall promptly reimburse SurfRecon. This Section does not apply to any of SurfRecon's federal, state and local taxes based on SurfRecon's net income.

32. Governing Law. This Agreement shall be governed by the laws of the state of Utah and the United States of America without giving effect to conflict or choice of law principles. The parties agree to exclude application of the "United Nations Convention on Contracts for the International Sale of Goods" to this Agreement. Any litigation between the parties shall be conducted exclusively in a Utah state court or a federal district court of competent subject matter jurisdiction within Utah. The parties agree and submit to such exclusive jurisdiction and venue.

33. Entire Agreement. This Agreement sets forth the entire understanding and agreement between the Parties relating to the subject matter of this Agreement and may be amended only in a writing signed by both Parties. No vendor, distributor, OEM, VAR, reseller, dealer, retailer, sales person or other person is authorized by SurfRecon to modify this Agreement or to make any warranty, representation or promise which is different than, or in addition to, the warranties, representations and promises of this Agreement.

34. Termination. If Licensee breaches this Agreement or engages in abusive conduct or violates SurfRecon's then-current policy concerning use of the Licensed Software or File Data, then SurfRecon may terminate the License by giving written notice of termination to Licensee. Upon termination of the License, Licensee shall uninstall and cease all use of the Licensed Software, File Data and Documentation. In addition, Licensee shall destroy or erase all copies of the Licensed Software, File Data and Documentation within the possession or control of Licensee. Moreover, Licensee shall destroy or return the original Licensed Software media and Documentation, if any, to SurfRecon. Sections 7, 8, 25 to 28, and 30 to 39 and any provisions in this Agreement that protect SurfRecon or its intellectual property or the Licensed Software, File Data or Documentation shall survive any termination of this Agreement.

35. Government End Users. A "U.S. Government End User" shall mean any agency or entity of the government of the United States. No license is granted by SurfRecon to a U.S. Government End User under this Agreement - contact SurfRecon for information about licenses to U.S. Government End Users. If despite the foregoing, this License is construed as a License to a Government End User, then this Section shall apply. The Licensed Software is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), comprising "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 Licensed Software with only those rights set forth herein. The Licensed Software (including related documentation) is provided to U.S. Government End Users: (a) only as a commercial end item; and (b) only pursuant to this Agreement. Manufacturer: SurfRecon, Inc., 1507 Technology Way, Suite 1300, Orem, Utah 84097.

36. Export Laws. Licensee shall not export, re-export, use, disclose or distribute any software, data or documentation in violation of any applicable laws or regulations, including the export laws and regulations of the United States, and shall comply with all such laws and regulations.

37. Construction. In the construction and interpretation of this Agreement, no rule of strict construction shall apply against or in favor of either Party.

38. Severability. In case any one or more of the provisions contained herein shall, for any reason, be or held to be invalid, illegal, or unenforceable in any respect under applicable law, such invalid, illegal or unenforceable provision(s) shall be curtailed, limited, and construed to the extent necessary (and only to such extent) to remove such invalidity, illegality or unenforceability with respect to the applicable law as it shall then be applied. If it is not possible to curtail, limit and/or construe such provisions to make them valid, legal and enforceable, then such provisions shall be severed from this Agreement, and the other provisions of this Agreement shall not be affected thereby. In the event that any restriction or provision in this Agreement is in conflict with applicable law or constitutes a misuse of copyright, patent or other intellectual property or an antitrust violation, then such restriction or provision applies only to the extent that it is not in conflict with applicable law and not a misuse of copyright, patent or other intellectual property or an antitrust violation. Nothing herein implies that any such conflict with law or any such misuse or antitrust violation exists.

39. Assignment. This Agreement and the License are not assignable or transferable by Licensee. SurfRecon may assign or transfer this Agreement to any third party who acquires substantially all of SurfRecon's intellectual property in or to the Licensed Software.

40. Evaluation License. This Section 40 applies only if and to the extent that the License under Section 3 is an Evaluation License. The License is an Evaluation License if the version of the Software provided to Licensee is marked or designated by SurfRecon as an "Evaluation Version" or if Licensee is not registered as a Named User and subscriber to the File Data (see Sections 3(a) and 5). If Licensee registers and subscribes, but then fails to pay the Subscription Fees or ceases to be a subscriber, then the License will automatically convert to an Evaluation License. Notwithstanding anything to the contrary, for an Evaluation Version and an Evaluation License: (a) The Licensed Software may only be used by Licensee for evaluation purposes; and (b) The functionality or features of the Licensed Software may be limited (or some may be disabled or inoperative) by SurfRecon. SurfRecon may include in the Software a mechanism or means that limits or locks the functionality, features or use of the Software or that causes the Software to cease operation.

41. Beta Versions. A "Beta Version" means any version of the Licensed Software that is designated by SurfRecon as a beta version, early adopter version, or early release version. If any of the Licensed Software is a Beta Version, then the following shall apply to such Beta Version. It is understood that a Beta Version may be incomplete or in a stage of development that does not make it ready for productive use. Accordingly, any Beta Version is made available only for non-productive use and should not be relied upon. No warranties or guarantees are made by SurfRecon with respect to any Beta Version.