End User License Agreement ETS-Lindgren | 7 of 259
Texas in accordance with the Commercial Arbitration Rules of the American Arbitration Association. A
single arbitrator shall be agreed upon by both parties or, if unable to do so within thirty (30) days, then
both parties agree that a single arbitrator shall be appointed by the American Arbitration Association. The
award of the arbitrator shall be binding and judgment upon the award may be entered in either the District
Courts for Travis County, Texas or the Federal District Court for the Western District Court of Texas.
Customer hereby consents to such venue and to the personal jurisdiction of such courts and waive the
right to demand a jury trial in any such action.
7.2 Assignment. Customer shall not assign or otherwise transfer the Software, Customer’s
license, or this Agreement to anyone, including any parent, subsidiaries, affiliated entities or third parties,
or as a part of the sale of any portion of its business, or pursuant to any merger, consolidation or
reorganization, without obtaining prior written consent from ETSL. Such consent will not be unreasonably
withheld. Third parties, contracted by Customer, including without limitation, consultants, subcontractors,
or agents, to implement the Software on Customer’s behalf at Customer’s facility, and who have agreed
in writing to use the Software only in accordance with the terms and conditions of this Agreement, do not
violate this Section.
7.3 Audit. To confirm compliance with Customer’s obligations hereunder, Customer agrees that
ETSL and/or its agents, may upon ten (10) days prior written notice and during normal business hours,
inspect and audit all of Customer’s records relating to the Software and this Agreement. If such inspection
or audit reveals that Customer has not complied with Customer’s obligations, Customer agrees to bear
the full cost of the inspection and audit, and to acquire all additional licenses necessary to maintain
compliance.
7.4 Confidentiality. Customer agrees that Customer, its agents and employees shall not in any
manner use, disclose or otherwise communicate any information with respect to the Software which might
enable the unauthorized use or reproduction of the Software or any portion thereof. Customer shall take
all action necessary to protect the confidential and proprietary information included in the Software,
including without limitation providing appropriate instruction to Customer’s employees and obtaining their
consent to be bound by this confidentiality clause.
7.5 Export, Import and Government Restrictions. The Software is subject to U.S. export laws
as well as the laws of the country where it is delivered or used. Customer agrees to abide by these laws.
Under these laws, the Software may not be sold, leased or transferred to embargoed countries (currently
Cuba, Iran, North Korea, Sudan and Syria), other restricted countries, restricted end-users, or for
restricted end-uses. Customer specifically agree that the Software will not be used for activities related to
weapons of mass destruction, including but not limited to, activities related to the design, development,
production or use of nuclear materials, nuclear facilities, or nuclear weapons, missiles or support of
missile projects, or chemical or biological weapons. Customer understands that certain functionality of the
Software, such as encryption or authentication, may be subject to import or export restrictions in the event
that Customer exports the Software from the country of delivery. Customer is responsible for complying
with all applicable restrictions.
7.6 Force Majeure. Neither party shall be liable for any noncompliance caused by acts of God,
war, terrorism, fire, flood or any other unforeseeable event beyond the reasonable control of both parties.
To the extent either party is unable to comply with the Agreement as a result of such an event, that party
shall not be in default of this agreement, provided however that such party makes every reasonable effort
to become compliant as soon as practicable.
7.7 Entire Agreement. Both parties agree that this Agreement is the complete and exclusive
statement of the agreement between Customer and ETSL, which supersedes and merges all prior
proposals, understandings and all other agreements, oral or written, between both parties relating to this
Agreement.
7.8 Severability. If any provision of this Agreement is invalid, illegal or unenforceable under any
applicable statute or rule of law, it is to that extent to be deemed omitted. The remainder of the
Agreement shall be valid and enforceable to the maximum extent possible.