IMPORTANT: THIS SOFTWARE END USER LICENSE AGREEMENT ("EULA") IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR, IF PURCHASED OR OTHERWISE ACQUIRED BY OR FOR AN ENTITY, AN ENTITY) AND TRELLIS MANAGEMENT CO. LTD. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY SELECTING THE DOWNLOAD OR INSTALL NOW BUTTON AND/OR USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN DO NOT INSTALL OR USE THE SOFTWARE. THIS SOFTWARE IS THE PROPERTY OF TRELLIS MANAGEMENT, LTD., A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE BRITISH VIRGIN ISLANDS.

1. Definitions

• 1.1 "Authorized Operating Systems" means the desktop and standard-laptop versions of the following operating systems:
  

• 1.1.1 Microsoft Windows operating systems (including desktop and standard-laptop PC versions of Windows 95, 98, 2000, NT, ME, XP Home, XP Professional, and XP Tablet PC Edition, but specifically excluding Windows XP Embedded, Windows XP Media Center Edition, and successors);


• 1.1.2 Macintosh operating systems;


• 1.1.3 Linux operating systems, but specifically excluding any embedded version of Linux; and


• 1.1.4 Solaris operating systems.

• 1.2 "TRELLIS" means Trellis Management Co. Ltd. and its licensors, if any.


• 1.3 "Software" means all the applications listed in "EXHIBIT A" herein included and third party software programs, in each case, supplied by TRELLIS therewith, and corresponding documentation, associated media, printed materials, and online or electronic documentation, and all updates or upgrades of the above that are provided to you.

2. License Grants

• 2.1 You may install and use the Software on a single desktop or laptop computer that runs an Authorized Operating System. A license for the Software may not be shared, installed or used concurrently on different computers.


• 2.2 You agree that TRELLIS may audit your use of the Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Software by you other than in full compliance with the terms of this Agreement, you shall reimburse TRELLIS for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance.


• 2.3 You may, strictly regarding the XDepth® ActiveX Control only, make the control available for standard online use and not for direct download by visitors on your own public website only, providing in a clear manner a link in at least one prominent web-page to www.xdepth.com, or include other referring solutions provided by TRELLIS on www.xdepth.com.

3. License Restrictions

• 3.1 You may not use the Software on any non-PC product or any embedded or device versions of the above operating systems, including, but not limited to, (A) mobile devices, set top boxes (STB), handhelds, phones, web pads, tablets and Tablet PCs that are not running Windows XP Tablet PC Edition, game consoles, TVs, DVD players, media centers (including Windows XP Media Center Edition and its successors), electronic billboards or other digital signage, internet appliances or other internet-connected devices, PDAs, medical devices, ATMs, telematic devices, gaming machines, home automation systems, kiosks, remote control devices, or any other consumer electronics device, (B) operator-based mobile, cable, satellite, or television systems, (C) other closed system devices, or (D) any operating system that is not an Authorized Operating System.


• 3.2 You may not make or distribute copies of the Software, or electronically transfer the Software from one computer to another or over a network, with the sole exception of the grant described in 2.3 herein.


• 3.3 You may not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer including reverse engineering of the host application, disassemble, or otherwise reduce the Software to a human-perceivable form.


• 3.4 You may not sell, rent, lease, or sublicense the Software.


• 3.5 You may not modify the Software or create derivative works based upon the Software.


• 3.6 You may not export the Software into any country prohibited by the United States Export Administration Act and the regulations thereunder.


• 3.7 In the event that you fail to comply with this EULA, TRELLIS may terminate the license and you must destroy all copies of the Software (with all other rights of both parties and all other provisions of this EULA surviving any such termination).


• 3.8 You shall not use the Software to develop any software or other technology having the same primary function as the Software, including but not limited to using the Software in any development or test procedure that seeks to develop like software or other technology, or to determine if such software or other technology performs in a similar manner as the Software.


• 3.9 You may not use or execute, linking to, call to or otherwise include in any way in own or third party code, the Software outside its host application, either for commercial, personal, testing, or educational purposes, except for the code required for inclusion in websites and limited only to the XDepth® ActiveX® Control.


• 4.0 You must inform TRELLIS of any benchmark and/or public disclosure of tests regarding the software prior to disclosure. TRELLIS retains the right to deny publication in any form of such findings.


• 4.1 TRELLIS retains full and exclusive rights to revoke the present license at any time and at its sole discretion.

4. Ownership

The foregoing license gives you limited license to use the Software. TRELLIS and its suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software and all copies thereof. All rights not specifically granted in this EULA, including Federal and International Copyrights, are reserved by TRELLIS and its suppliers. 

5. WARRANTY DISCLAIMER

• 5.1 THE SOFTWARE IS PROVIDED TO YOU FREE OF CHARGE, AND ON AN "AS-IS" BASIS. TRELLIS PROVIDES NO TECHNICAL SUPPORT, WARRANTIES OR REMEDIES FOR THE SOFTWARE.


• 5.2 TRELLIS AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. TRELLIS DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN. THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. TRELLIS SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.


• 5.3 IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY.


• 5.4 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TRELLIS, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.


• 5.5 (USA only) SOME STATES 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 LEGAL RIGHTS THAT VARY FROM STATE TO STATE.


• 5.6 TRELLIS SHALL HAVE NO RESPONSIBILITY IF THE SOFTWARE HAS BEEN ALTERED IN ANY WAY, OR FOR ANY FAILURE THAT ARISES OUT OF USE OF THE SOFTWARE WITH OTHER THAN A RECOMMENDED HARDWARE CONFIGURATION, PLATFORM OR OPERATING SYSTEM.

6. LIMITATION OF LIABILITY

• 6.1 NEITHER TRELLIS NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF TRELLIS OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.


• 6.2 TRELLIS' TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF $10 OR THE AMOUNT PAID BY YOU FOR THE SOFTWARE THAT CAUSED SUCH DAMAGE.


• 6.3 (USA only) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.


• 6.4 THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO ALL ASPECTS OF THIS EULA.

7. Basis of Bargain

The Warranty Disclaimer and Limited Liability set forth above are fundamental elements of the basis of the agreement between TRELLIS and you. TRELLIS would not be able to provide the Software on an economic basis without such limitations. Such Warranty Disclaimer and Limited Liability inure to the benefit of TRELLIS's licensors. 

8. (Outside of the USA) Consumer End Users Only

The limitations or exclusions of warranties and liability contained in this EULA do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods otherwise than in the course of a business.

The limitations or exclusions of warranties, remedies or liability contained in this EULA shall apply to you only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located. 

9. Third Party Software

The Software may contain third party software which requires notices and/or additional terms and conditions. Such required third party notices are not part of and incorporated by reference into this EULA. By accepting this EULA, you are also accepting the additional terms and conditions, if any, set forth therein.

10. General

This EULA shall be governed by the internal laws of the State of New York, without giving effect to principles of conflict of laws. You hereby consent to jurisdiction of the state and federal courts of New York to resolve any disputes arising under this EULA. In each case this EULA shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.
This EULA contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Software licensed hereunder shall be of no effect. The failure or delay of TRELLIS to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach.
No TRELLIS dealer, agent or employee is authorized to make any amendment to this EULA.
If any provision of this EULA shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this EULA will remain in full force and effect.
“XDepth®” and other trademarks contained in the Software are trademarks or registered trademarks of TRELLIS in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This EULA does not authorize you to use TRELLIS' or its licensors' names or any of their respective trademarks.