1.  License Acceptance

This license agreement and limited warranty constitutes a legal agreement (“Agreement”) between the entity purchasing a Site License  (“Licensee”, as an individual or single entity) and Taylor Enterprises, Inc. (“Licensor “), owner of the Change-Point Analyzer, Distribution Analyzer, Sampling Plan Analyzer, Simulator and VarTran® software packages.

RECITALS:

WHEREAS, Licensor has developed the Change-Point Analyzer, Distribution Analyzer, Sampling Plan Analyzer, Simulator and VarTran® software packages and related documents, specifications, information or manuals (collectively, the “Software”); and

WHEREAS, Licensor is the owner of the Software.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants contained herein, the parties hereto agree as follows:

BY INSTALLING, COPYING, OR OTHERWISE USING THESE SOFTWARE PACKAGES, YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT.

Upon your acceptance of the terms and conditions of the Agreement, Taylor Enterprises, Inc. grants you the right to use the Software in the manner provided below.  If you do not accept the terms and conditions of the Agreement, you are to promptly delete each and any copy of the Software from your computer(s) and server(s).

2.  License and Confidentiality

In accordance with the terms herein, Licensor grants to Licensee, and Licensee accepts from Licensor, a perpetual non-exclusive and non-transferable license to use the current version of specified Licensor’s Software package(s) at the specified site.  Licensee may not sublicense or otherwise distribute the Software at any time or in any fashion.

The Software shall be used only on equipment owned or operated by Licensee at the specified site.  The Software shall be used solely for internal use in Licensee’s own business, for processing of Licensee’s own data.  Licensee shall not: (1) permit any third party to use the software, except to the extent the third party is providing services to Licensee, (2) use the Software in the operation of a service bureau, or (3) allow access to the licensed Software through terminals located outside Licensee’s business premises, except that Licensee shall be permitted off-site access to use the Software on Licensee’s secure, password-protected Intranet.

Licensee acknowledges the confidential and proprietary nature of the Software and agrees that it shall not reveal or disclose Software for any purpose to any other person, firm, corporation or other entity.  Licensee agrees to safeguard, secure and protect the Software from all manner of unauthorized copying, unauthorized disclosure, unauthorized use, theft, or piracy, all in a manner consistent with the manner in which Licensee protects its most confidential information and consistent with the maintenance of Licensor’s rights therein, and agrees that each employee or consultant who is permitted access to the Software shall have executed an agreement with a general covenant to keep confidential information of which he learns or has access to during his engagement by Licensee.  Licensee agrees to inform its employees and consultants of their obligations under this Agreement, and shall take steps as may be reasonable
in the circumstances, or as may reasonably be requested by Licensor, to prevent any unauthorized disclosure, copying, or use of the Software.

3.  Copies

The license granted herein includes the right to copy the Software in non-printed, machine-readable form in whole or in part as necessary for Licensee’s own business use.  In order to protect Licensor’s trade secret and copyrights in the Software, Licensee agrees to reproduce and incorporate Licensor’s trade secret or copyright notice in any copies, modifications or partial copies.

4.  Price and Payment

Licensee shall certify, in writing including email, to Licensor, the name(s) of the Software programs to be licensed, the name and description of the site licensing the software, and the number of employees.  The license fee(s) shall be computed accordingly by the Licensor and provided in an invoice.  Licensee shall make payment to Licensor pursuant to the invoice provided by Licensor.  Upon payment, the Licensor will deliver site license(s) per the invoice.

Licensee shall give written notice to Licensor immediately in the event the number of users under this license increases such that a different license fee is due.  Licensee agrees to pay any incremental amount by which the license fee increases, which increase shall be calculated based upon Licensor’s then-currently published prices as of the date Licensee gave or should have given notice pursuant to this paragraph, and subtracting any license fee(s) previously paid by Licensee.

5.  Software Ownership

Licensor represents and warrants that it is the owner of the Software and all portions thereof and that it has the right to modify same and to grant Licensee a license for its use.

6.  Intent to Cooperate

Licensor and Licensee acknowledge that successful implementation of the Software pursuant to this License Agreement shall require their full and mutual good faith cooperation, and Licensor and Licensee each acknowledge that it shall timely fulfill its responsibilities, including but not limited to those set forth below.

7.  Title to Software Systems and Confidentiality

The Software, and all programs and applications thereof, developed hereunder and all copies of each are proprietary to Licensor and title thereto remains in Licensor.  All applicable rights to patents, copyrights, trademarks and trade secrets in the Software, or any modifications made to either at Licensee’s request are and shall remain in Licensor.  Licensee shall not sell, transfer, publish, disclose, display or otherwise make available the Software or copies thereof to others.  Licensee agrees to secure and protect the Software, and each module, software product, documentation and copies thereof in a manner consistent with the maintenance of Licensor’s rights therein and to take appropriate action by instruction or agreement with its employees or consultants who are permitted access to each to satisfy its obligations hereunder.  All copies made by the Licensee of the Software and other programs developed hereunder, including translations, compilations, partial copies with modifications and up-dated works, are the property of Licensor.  Licensee may modify the Software for its own use as Licensee sees fit.  Licensee may not use any of the Software to develop other information, documentation, materials or resources which will compete with, supersede, render obsolete, or in any way displace Licensee’s need for the Software.  Violation of any provision of this paragraph shall be the basis for immediate termination of this License Agreement.

8.  Use and Training

Licensee shall limit the use of the Software to its employees or consultants who have been appropriately trained.  If requested by Licensee, training for the Software may be made available to Licensee at location(s), in such manner, and for such fees as shall be agreed to by the parties.

9.  Upgrades

Licensor agrees to include in the license fee all upgrades made to the Software (“Software Upgrades”) for one (1) year from the date of the invoice.  Licensee agrees and acknowledges that after one year from the date of the invoice, Licensee shall not receive any Software Upgrades, but may purchase any and all available Software Upgrades at the fee currently charged by Licensor to its best customers for the applicable Software Upgrades.

10.  Disclaimer of Warranty and Limitation of Liability

THE SOFTWARE IS PROVIDED AS IS.  LICENSOR MAKES NO WARRANTIES, AND LICENSOR EXPRESSLY DISCLAIMS, AND LICENSEE HEREBY EXPRESSLY WAIVES, ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS CAN BE CORRECTED. THE ENTIRE RISK OF THE SOFTWARE’S QUALITY AND  PERFORMANCE IS WITH LICENSEE.

LICENSOR SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF LICENSOR TO LICENSEE FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT PAID TO LICENSOR BY LICENSEE UNDER THIS AGREEMENT. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT
LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES AND LIMITATIONS HEREIN ALLOCATE THE RISKS OF PRODUCT AND SERVICE NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND ALL OTHER APPLICABLE LAWS. THE LICENSE FEES HEREIN REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL DAMAGES SET FORTH IN THIS AGREEMENT.

11.  Indemnity

Licensor at its own expense will defend any action brought against Licensee to the extent that it is based on a claim that any software system used within the scope of this License Agreement infringes any patents, copyrights, license or other property right of any third party, provided that Licensor is notified in writing of such claim. Licensee shall be liable for any damage suffered by Licensor to the extent Licensee prejudiced Licensor’s rights by failing to timely notify Licensor of any such claim. Licensor shall have the right to control the defense of all such claims, lawsuits and other proceedings. In no event shall Licensee settle any such claim, lawsuit or proceeding without Licensor’s prior written approval, which approval shall not be unreasonably withheld.

If, as a result of any claim of infringement against any patent, copyright, license or other property right, Licensor is enjoined from using the Software, or if Licensor believes that the Software is likely to become the subject of a claim of infringement, Licensor at its option and expense may procure the right for Licensee to continue to use the Software, or replace or modify the Software so as to make it non-infringing. If neither of these two options is reasonably practicable Licensor may discontinue the license granted herein on one month’s written notice and refund to Licensee the unamortized portion of the license fees hereunder (based on four-year straight-line amortization). The foregoing states the entire liability of Licensor with respect to infringement of any copyrights or patents by the Software or any parts thereof.

Licensee hereby defends and holds Licensor harmless from any and all loss, costs, damages or expenses (including but not limited to reasonable attorney’s fees) which may be incurred by Licensor relating to Licensee’s use of the Software in any manner prohibited by this Agreement.

12.  Termination

Licensor and Licensee shall each have the right to terminate this agreement and license(s) granted herein:

(a) Upon ten days’ written notice in the event that the other party, its officers or employees breaches any material provision of this Agreement including but not limited to, confidentiality and payment;

(b) In the event the other party (i) terminates or suspends its business; (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute or (iii) becomes insolvent or becomes subject to direct control by a trustee, receiver or similar authority; or

(c) In the event the other party breaches a material term of any other agreement which may exist between the parties, in which case, the non-breaching party may elect to terminate any or all said agreements.

In the event of termination by reason of the Licensee’s failure to comply with any material part of this Agreement, or upon any act which shall give rise to Licensor’s right to terminate, Licensor shall have the right, at any time, to terminate the license and take immediate possession of the Software and all copies wherever located, without demand or notice.  Within fifteen (15) days after termination of the license, Licensee will return to Licensor the Software in the form provided by Licensor or as modified by the Licensee, or upon request by Licensor destroy the Software, and all copies of each, and certify in writing that they have been destroyed.  Termination under this paragraph shall not relieve either party of its obligations regarding confidentiality of the Software.  Termination of the Agreement shall be in addition to and not in lieu of any other remedies in law or in equity which may be available to Licensor.  In the event
of termination by Licensee following breach of a material term by Licensor, Licensee may retain the perpetual right to use the Software for which Licensee pays or has paid amounts due therefor.

Without limiting any of the above provisions, in the event of termination as a result of the Licensee’s failure to comply with any of its material obligations under this Agreement, the Licensee shall continue to be obligated for any payments accrued and owing prior to the date of termination. Termination of the license(s) shall be in addition to and not in lieu of any equitable remedies available.

13.  Taxes

Licensee shall, in addition to the other amounts payable under this Agreement, pay all sales and other taxes, federal, state, or otherwise, however designated, which are levied or imposed by reason of the license granted to Licensee by this Agreement, except for income taxes imposed upon licensing proceeds received by Licensor.  Without limiting the foregoing, Licensee shall promptly pay to Licensor an amount equal to any such items actually paid, or required to be collected or paid by Licensor, upon reasonable notice thereof, together with supporting documentation.

14.  Custom Modifications

All custom modifications to the Software may be undertaken by Licensor pursuant to the terms of another agreement entered into by and between the parties, the terms of which shall be mutually agreed upon prior to the commencement of such custom modification effort.

15.  General

(a) Each party acknowledges that it has read this Agreement, it understands it, and agrees to be bound by its terms, and further agrees that this is the complete and exclusive statement of the Agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this Agreement. This Agreement may not be modified or altered except by written instrument duly executed by all parties.

(b) Dates or times by which either party is required to make performance under this license shall be postponed automatically to the extent that that party is prevented from meeting them by causes beyond its reasonable control.

(c) This Agreement and performance hereunder shall be governed by the laws of the State of Illinois, without regard to conflicts of law principles.

(d) The parties hereto consent and agree that all legal proceedings relating to the subject matter of this Agreement shall be maintained only in courts sitting within Lake or Cook Counties, Illinois, and each of the parties consents and submits to the jurisdiction of any local, state or federal court in said counties. The parties hereto waive any rights to have transferred or changed the venue of any litigation brought against them.

(e) No action, regardless of form, arising out of this Agreement may be brought by Licensee more than two years after the cause of action has arisen.

(f) If any provision of this Agreement is invalid, illegal or unenforceable under any applicable statute or rule of law, it is deemed modified to the extent necessary to render the provision enforceable.

(g) The Licensee may not assign or sub-license, (except to affiliates) without the prior written consent of Licensor, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part. The term “affiliates” shall refer to entities which Licensee has a greater than 50% ownership interest.

(h) Each non-breaching party hereto shall have the right to collect from the breaching party, each non-breaching party’s reasonable expenses incurred in enforcing this Agreement including attorney’s fees.

(i) The waiver or failure of Licensor to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.

(j) Notice under this Agreement shall be deemed given when: delivered to the party personally, deposited in the U.S. Mail with first class postage prepaid to the party, faxed to the party, or sent via overnight courier with charges prepaid, next day delivery, all to the address or fax number indicated below.

(k) In the event of a breach of this Agreement, each party hereto acknowledges that the remedy at law may be inadequate and that the injured party shall be entitled to an injunction restraining such breach without the necessity to post a bond, in addition to all other remedies available in law or equity. Each party hereto agrees to reimburse the injured party for any and all loss, damages, costs, including but not limited to reasonable attorneys’ fees, and expenses incurred by the injured party in enforcing the provisions of this Agreement.

(l) Licensor shall not be required to modify the Software during the course of this Agreement so as to conform to new equipment or hardware, or to modify features or add additional features, except as per agreement of the parties hereto, and for such additional fees and payments and other conditions as the parties hereto shall agree in writing.

(m) Licensee agrees and acknowledges that Licensor may sell, license or otherwise distribute the Software to other parties as Licensor sees fit.

(n) Licensee agrees and acknowledges that Licensee will look only to Licensor and to no other party with regard to the performance of this Agreement, and that no other party shall be liable for Licensor’s non-performance of this Agreement.

(o) Licensee and all its affiliates or subsidiaries may use the Software pursuant to the terms of this Agreement. If Licensee is acquired, Licensee may assign its right under this Agreement to the acquiring company provided appropriate additional license fees have been paid by the acquiring company if it desires to use the Software outside of Licensee’s pre-existing businesses.