PLEASE READ THIS AGREEMENT CAREFULLY

Lumidigm, Inc.  
Software Commercial License Agreement

Lumidigm., Inc. (‘Lumidigm’) is willing to license use of the Lumidigm sensor software and associated documentation (individually and collectively, the ‘Software’) to you, as an individual, or to the entity on whose behalf you are acting, as the case may be (‘Licensee’), only on the condition that Licensee accepts all of the terms in this Software Commercial License Agreement (the ‘Agreement’).  If the individual executing this Agreement is an employee or agent of the Licensee, the individual agrees and represents that he/she enters into this Agreement on behalf of the Licensee and that he/she has the authority to bind the Licensee to the terms and conditions of this Agreement.  Lumidigm recommends that Licensee print a copy of this Agreement and retain such copy for Licensee’s records and future reference.

BY CLICKING ON THE “ACCEPT” BUTTON BELOW, LICENSEE IS SIGNING THIS AGREEMENT AND LICENSEE ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.  IF LICENSEE DOES NOT AGREE TO ANY OF THE TERMS BELOW, LUMIDIGM IS UNWILLING TO LICENSE THE SOFTWARE TO LICENSEE, AND LICENSEE SHOULD CLICK ON THE “DO NOT ACCEPT” BUTTON BELOW TO DISCONTINUE THE INSTALLATION PROCESS.  THIS AGREEMENT SHALL BE EFFECTIVE WHEN YOU CLICK THE “ACCEPT” BUTTON BELOW (‘EFFECTIVE DATE’).  

1.	COMMERCIAL LICENSE.  Subject to the terms and conditions of this Agreement, Lumidigm hereby grants Licensee a perpetual, limited, revocable, non-exclusive, non-sublicensable, non-transferable, license to install and use the Software, in machine-readable form only, in accordance with the documentation provided therewith, solely for Licensee’s internal business purposes. Upon the commencement of the license set forth in this Section 1, any licenses to a demonstration version of the Software set forth in a Software Evaluation License Agreement or any other agreement between the parties shall terminate.  
2.	RESTRICTIONS. Licensee may not use or copy the Software, or any copy thereof, in whole or in part, except for the purposes expressly provided for in this Agreement.  Licensee may not modify, reproduce, create derivative works of, distribute, sell, resell, lend, loan, lease, license, sublicense or transfer the Software or any portion thereof. Any attempt to transfer any of the rights, duties or obligations hereunder not in accordance with the foregoing is null and void and without any force or effect.  Licensee shall not reverse engineer, disassemble, decompile, or translate the Software, or otherwise attempt to derive the source code of the Software, or authorize any third party to do any of the foregoing, except to the extent allowed under any applicable law.  Licensee agrees not to remove or destroy any proprietary trademark or copyright markings of confidentiality legends placed or contained within the Software.
3.	NO MAINTENANCE OR SUPPORT.  Lumidigm has no obligation under this Agreement to correct any bugs, defects or errors in the Software or to otherwise provide support or maintenance services to Licensee for the Software.  Such services may be provided under a separate maintenance and support agreement mutually agreed to and executed by the parties.
4.	TERM AND TERMINATION.  This Agreement becomes effective on the Effective Date and will continue in effect until the earlier of (i) termination as set forth in this Section 4, or (ii) the execution by the parties of a written agreement expressly superseding this Agreement.  This Agreement may be terminated immediately upon written notice by either party upon the uncured material breach by the other party of any of its obligations under this Agreement, which breach has not been cured within thirty (30) days after the breaching party has received written notice thereof.  Notwithstanding the foregoing, Lumidigm may terminate this Agreement immediately upon written notice to Licensee if Licensee breaches its obligations in Sections 1 to 2. Upon termination or expiration of this Agreement, Licensee shall promptly cease using and destroy the Software and all copies thereof.  Sections 4-9 shall survive termination or expiration of this Agreement.  
5.	OWNERSHIP; CONFIDENTIALITY.  As between Lumidigm and the Licensee, Lumidigm owns all right, title and interest in and to the Software, including all intellectual property rights thereto.  The Software is licensed, not sold, to Licensee for use only under the terms of this Agreement, and Lumidigm reserves all rights not expressly granted to Licensee. Under no circumstances will Licensee be deemed to receive title to or ownership of any portion of the Software, or any intellectual property rights thereto (including, without limitation, copyrights, patents and trade secrets incorporated or embodied therein).  “Confidential Information” means the Software and any other business or technical nonpublic information of Lumidigm or Licensee that is transferred from one party to another.  Confidential Information shall not include information that (i) is in or enters the public domain without breach of this Agreement through no fault of the receiving party, (ii) the receiving party was demonstrably in possession of prior to first receiving it from the disclosing party without obligation of restrictions, (iii) the receiving party can demonstrate was developed by the receiving party independently and without use of or reference to the disclosing party’s Confidential Information, or (iv) the receiving party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation.  Each party shall maintain the Confidential Information of the other party in strict confidence until such time as the Confidential Information enters the public domain pursuant to items (i) through (iv) above.  Each party shall exercise no less than reasonable care with respect to the handling and protection of such Confidential Information.  Each party shall use the Confidential Information of the other party only during the term of the Agreement and as expressly permitted herein, and shall disclose such Confidential Information only to its employees and independent contractors as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein).  Notwithstanding the above, the receiving party may disclose Confidential Information of the disclosing party pursuant to a valid order or requirement of a court or government agency, provided that the receiving party first gives reasonable notice to the disclosing party to contest such order or requirement.  Any such disclosure by the receiving party of the Confidential Information of the disclosing party, shall, in no way, be deemed to change, affect or diminish the confidential status of such Confidential Information
6.	WARRANTY AND DISCLAIMERS. Lumidigm warrants to Licensee, that for a period of ninety (90) days from the date of delivery of the Software by Lumidigm to Licensee, the Software will substantially conform to the applicable technical specifications for the Software that is published in the documentation supplied to Licensee.  As Licensee’s exclusive remedy and Lumidigm’s sole obligation for breach of the above warranty, Lumidigm shall use commercially reasonable efforts to correct any reproducible error in the Software constituting a breach of the warranty at no additional charge.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, LUMIDIGM EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, AND REPRESENTATIONS OF ANY KIND WITH REGARD TO ANY SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, ACCURACY OF RESULTS OR INFORMATION, WHETHER EXPRESS, IMPLIED OR STATUTORY.  LUMIDIGM MAKES NO WARRANTY THAT THE SOFTWARE OR USE THEREOF WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LUMIDIGM, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES. 
7.	LIMITATION OF REMEDIES.  REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL LUMIDIGM BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ANY DATA SUPPLIED THEREWITH, EVEN IF LUMIDIGM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. LUMIDIGM’S TOTAL AGGREGATE LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY LICENSEE FOR THE SOFTWARE THAT IS THE SUBJECT OF THE ACTION.  THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT. LICENSEE ACKNOWLEDGES THAT LUMIDIGM’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED IN THIS SECTION WILL APPLY REGARDLESS OF WHETHER ANY LIMITED OR EXCLUSIVE REMEDY SPECIFIED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. LICENSEE SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS LUMIDIGM FROM ANY CLAIMS ARISING OUT OF OR RELATED TO LICENSEE’S USE OF THE SOFTWARE.
8.	U. S. GOVERNMENT END USERS. The Software was developed at private expense and is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212.  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those limited rights set forth therein.  Publisher is Lumidigm, Inc., 801 University Blvd SE, Suite 302, Albuquerque, NM, 87106.
9.	GENERAL.  This Agreement will be governed by the laws of the State of New Mexico and the United States, without regard to or application of conflicts of law rules or principles that would require the application of the laws of another jurisdiction.  The parties explicitly disclaim the application of the UN Convention on the Sale of Goods.  Any action or lawsuit related to this Agreement must be brought exclusively in either the federal or state courts located in the City and County of Albuquerque, New Mexico, and each party hereby irrevocably submits and waives any objection to the exclusive jurisdiction and forum of such courts.  If any provision of this Agreement is held to be unenforceable, that provision will be reformed in order to comply with the law and to the extent possible give effect to the original intent and economic impact of the original provision, and the remaining provisions will remain in full force.  The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal.  The failure of either party to require performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter, nor will the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.  Neither this Agreement nor any rights or obligations of Licensee hereunder may be assigned, delegated or transferred by Licensee (in whole or in part and including by sale, merger or operation of law) without the prior written approval of Lumidigm, and any such transfer in derogation of the foregoing will be null and void.  The parties hereto are independent parties and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other.  This Agreement is the complete and exclusive statement of the agreement between the parties, and this Agreement supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement. This Agreement will not be modified except by a subsequently dated written amendment or exhibit signed by both parties by their duly authorized representatives.
