Stratodesk Corp., Software End User License Agreement CAREFULLY READ ALL TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT ("LICENSE", "AGREEMENT" OR "EULA"). BY INSTALLING OR USING STRATODESK'S SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND IT, AND YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, CLICK CANCEL AND DO NOT INSTALL, COPY OR USE THE SOFTWARE IN ANY MANNER. In this Agreement, the term "you" or "your" means you as the natural person or the entity that is agreeing to be bound by the terms and conditions of this Agreement. 1. SOFTWARE. Software ("Software") consists of any or all of the following: (i) Stratodesk's NoTouch OS Software; and Stratodesk's NoTouch Center Software; and Stratodesk Virtual Appliance (ii) documentation; (iii) updates; (iv) upgrades; or (v) any copy of the Software, documentation, updates or upgrades provided by Stratodesk Corp. ( "Stratodesk"). Stratodesk in its sole discretion, may revise, change or discontinue any component, part or feature of the Software at any time and without notice. 2. LICENSE. Stratodesk hereby grants you, and you agree to accept, subject to the terms of this Agreement, a limited, non-exclusive license to install and use the Software on a per device basis. This license may not be transferred or assigned by you without the express written consent of Stratodesk. This license does not grant you the right to grant sub-licenses. This license does not grant you the right to receive from Stratodesk any documentation, support, on-line or telephone assistance, updates (except as may be expressly stated in this Agreement), upgrades or other enhancements to the Software. This is a license of the Software only. This Agreement is not a sale of the Software. 3. PROPRIETARY RIGHTS. Except for the rights specifically granted in this Agreement, all proprietary and intellectual property rights in or related to the Software are and will remain the exclusive property of Stratodesk or its licensors. You are not permitted to delete, change, remove or alter any trademark, copyright, logo or other proprietary notice in or on the Software. 4. GPL SOFTWARE. GPL software is licensed to you under the GNU General Public License as published by the Free Software Foundation ("GPL"). A copy of the GPL is included on the media on which you received the Software or included in the files you downloaded. You may download the GPL Source Files from Stratodesk's web site at www.stratodesk.com. Stratodesk makes no warranties with regard to any third party software or materials. 5. OPEN SOURCE SOFTWARE. Open Source software ("Open Source") consists of various Open Source software components licensed under the terms of applicable open source license agreements. The Open Source software licenses are available in the open_source_licenses.txt file at www.stratodesk.com. 6. RESTRICTIONS. You may not, or permit others to, (i) de-compile, reverse engineer, reverse compile, modify or attempt to derive any source code obtained under this Agreement; (ii) create any derivative works of the Software; (iii) remove, alter, obscure or deface any copyright notice, trademark, logo, or other notice identifying Stratodesk or its licensors; (iv) make any copies of the Software except for an archival copy for back-up purposes; (v) attempt to "hack" or "crack" or otherwise override any activation key or other mechanism that may be provided or necessary to access the Software; or (vi) use the Software in any manner that violates any law, this Agreement or the rights of Stratodesk or any third party. 7. UPDATES. For a period of ninety (90) days following your receipt of the Software, Stratodesk will deliver electronically to your computer automated updates, upgrades, modifications, and/or patches (collectively referred to as "Updates"). This Agreement will govern your use of Updates. Stratodesk, in its sole discretion, reserves the right to require you to agree to additional terms and conditions regarding the Updates prior to your installation and use of the Updates. 8. LIMITED WARRANTY. Stratodesk warrants that upon your receipt of the Software and for a period of ninety (90) days thereafter ("Warranty Period"), the media, if any on which the Software is embedded will be free of defects in material and workmanship under normal use. Stratodesk does not warrant that (i) the Software and any related Updates will be free of defects, (ii) the Software will satisfy all of your requirements or (iii) the use of the Software will be uninterrupted or error-free. In case of breach of warranty related to the quality of the media, you must return at your expense and no later than ten (10) days after the expiration of the Warranty Period, the Software to Stratodesk, together with a copy of your dated proof of purchase. Stratodesk will, at its sole option, repair or replace the defective media, or if not practicable, may terminate this Agreement and refund to you the amount paid for the Software. You acknowledge that this Paragraph 8 sets forth your exclusive remedy and Stratodesk's exclusive liability for any breach of warranty or any other duty related to the quality of the Software. EXCEPT FOR THE PRECEDING EXPRESS LIMITED WARRANTY SET OUT IN THIS PARAGRAPH 8, OR OTHERWISE EXPRESSLY PROVIDED IN A SEPARATE AGREEMENT WITH STRATODESK, THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS WITH ALL FAULTS. ALL WARRANTIES, TERMS, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE SOFTWARE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY STRATODESK, ITS LICENSORS OR REPRESENTATIVES OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED. SOME STATES OR COUNTRIES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR COUNTRY TO COUNTRY. 9. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL STRATODESK OR ITS LICENSORS, REPRESENTATIVES, SUPPLIERS, AGENTS OR RESELLERS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES, WHETHER FORSEEABLE OR UNFORSEEABLE, ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF, OR INABILITY TO USE, THE SOFTWARE, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF THE SOFTWARE, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS, 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, STRATODESK'S ENTIRE COLLECTIVE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES YOU PAID FOR THIS LICENSE (IF ANY) AND REPLACEMENT OF DEFECTIVE MEDIA OR PROVISION OF A REASONABLY SIMILAR SOFTWARE PRODUCT, AS DETERMINED AT STRATODESK'S SOLE DISCRETION, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU. 10. SUPPORT SERVICES NOT PROVIDED. Stratodesk will not provide any support services under this Agreement. Further, you do not have any right to, and Stratodesk is not obligated to provide, any updates (except as may be expressly stated in this Agreement) , corrections, upgrades, enhancements or other fixes regarding the Software under this Agreement. 11. EXPORT RESTRICTIONS. You acknowledge that the Software is subject to export controls under the U.S. Export Administration Regulations and the import/export laws, rules, regulations and orders of the United States and other countries, if applicable. You acknowledge and agree that you may not export or re-export, directly or indirectly, the Software or any related technical information or materials unless you have obtained an appropriate authorization from the U.S. Commerce Department and any other relevant government authority. 12. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software is "commercial computer software" as defined in FAR 12.212 and has been developed exclusively at private expense. All technical data, including, but not limited to, Stratodesk's commercial computer software/documentation is subject to the provisions of FAR 12.211 - "Technical Data", and FAR 12.212 - "Commercial Computer Software" respectively, or clauses providing Stratodesk equivalent protection in the Defense Federal Acquisition Regulations Supplement ("DFARS") or other agency specific regulations. Any use of the Software by the U.S. Government shall be governed solely by the terms of this Agreement and shall constitute acknowledgement of Stratodesk's proprietary rights therein. 13. ELECTRONIC NOTICES. You agree that Stratodesk may provide any notices to you regarding the Software electronically. Notices may be provided by e-mail or via the Stratodesk website. Delivery of a notice shall be deemed effective upon posting or e- mailing by Stratodesk. 14. INDEMNIFICATION. You agree to defend, indemnify, and hold harmless Stratodesk, its suppliers, vendors, employees, contractors, officers, directors, and agents from all liabilities, claims, and expenses, including reasonable attorney's fees, that arise from your use or misuse of the Software or your breach of this Agreement. Stratodesk reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Stratodesk in asserting any available defenses. 15. HIGH RISK ACTIVITIES/RESTRICTIONS. The software is not designed or intended for use in high risk activities including, but not limited to, on-line control of aircraft, air traffic, aircraft navigation or aircraft communications; or in the design, construction, operation or maintenance of any nuclear facility. Further, the Software is not intended for any activity relating to the design, development, production, stockpiling or use of nuclear, chemical or biological weapons, or missiles. Stratodesk disclaimer of any express or implied warranties as stated above applies to such uses as well as all others. You agree that you will not knowingly use the Software for such purposes directly or indirectly. 16. TERM AND TERMINATION. This EULA is effective until terminated. The license granted herein shall automatically terminate without notice if you fail to comply with any material provision of this Agreement. Without prejudice to any other rights, Stratodesk may terminate this Agreement if you fail to comply with the terms and conditions of this Agreement. In any such event, you must destroy all copies of the Software and all of its component parts. This shall not limit or affect any remedy available to Stratodesk for your breach of this Agreement. 17. ASSIGNMENT. You may not assign, sublicense or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. Any such attempted assignment, sublicense or transfer shall be null and void. Stratodesk may assign this Agreement to any person or entity at its sole discretion and without notice to you. 18. ENTIRE AGREEMENT. You acknowledge and agree that this Agreement is the complete Agreement between you and Stratodesk regarding the Software. You further acknowledge and agree that (i) this Agreement sets out Stratodesk's entire liability and your exclusive remedy with respect to the Software; (ii) this Agreement defines a mutually agreed upon allocation of risk; and (iii) that there are no other prior or contemporaneous promises, representations, agreements, inducements or descriptions with respect to the Software. 19. WAIVER AND MODIFICATION. The waiver by either party of a breach or violation of any provision of this Agreement shall not operate as, or be construed to constitute, a waiver of any subsequent breach of the same or any other provision hereof. Nothing in this Agreement shall be modified or amended except in writing signed and dated by both parties. 20. SEVERABILITY. In the event any provision of this Agreement is held to be invalid, illegal, or unenforceable for any reason and in any respect, such invalidity, illegality, or unenforceability shall in no event affect, prejudice, or disturb the validity of the remainder of this Agreement which shall be in full force and effect, enforceable in accordance with its terms. 21. HEADINGS. Headings under this Agreement are intended solely for convenience and shall have no legal effect whatsoever in construing the provision of this Agreement. 22. GOVERNING LAW. This Agreement will be governed and construed in accordance with the laws of the State of Delaware 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.