bTrade TERMS AND CONDITIONS

bTrade, LLC (“bTrade”) and the person/entity downloading this software (“Customer”) agree that the following terms and conditions will apply to licensed versions of its data compression/security/transfer/administration software programs and Documentation known as TDAccess, TDNgine, TDManager, TDCommunity Manager, TDRelay or other bTrade product offerings, not all of which are licensed under this Agreement. For purposes of this Agreement, “Software” means (i) the software products specifically designated on Schedule A hereto provided to Customer by bTrade in executable form (but not the source code), (ii) Documentation, (iii) any object code which bTrade in its sole discretion may provide to Customer from time to time, and (iv) any modifications, maintenance releases, bug fixes or work-arounds which bTrade may provide to Customer from time to time. “Documentation” means the current documentation and user manuals relating to the use of the latest version of the Software delivered by bTrade to Customer in either printed, electronic form or Web Page (Adobe-PDF) presented formats.

1. Grant of License. bTrade grants to Customer a non-transferable, non-exclusive, perpetual (subject to termination as set forth in Section 14) license to use the Software solely for Customer’s internal business purposes. Customer is restricted to configure and use the Software on one (1) server. Customer acknowledges that the Software is the sole and exclusive property of bTrade. By accepting the license, Customer does not become the owner of the Software, but Customer does have the right to use the Software in accordance with this Agreement.
2. Title to Software and Confidentiality. bTrade retains title to the Software and any copies thereof. The Software is property of bTrade and contains confidential, unpublished information and trade secrets developed or acquired by bTrade. All applicable rights, patents, copyrights, trademarks, and trade secrets in the Software or any modifications made at Customer’s request are and shall remain the property of bTrade. Customer will use the Software only internally within its own company in pursuit of its own business interests, and will not sell, lease or otherwise transfer, with or without consideration, the Software to any third party, except as specified in the USE BY THIRD PARTY provisions in Section 3. Customer agrees to take all responsible steps to protect the Software from unauthorized reproduction, publication, disclosure or distribution, including instructing its employees, consultants and end users who are permitted access to the Software to satisfy its obligations hereunder.

Customer acknowledges that the Confidential Information (as defined below) constitutes valuable trade secrets of bTrade and Customer agrees that it shall use the Confidential Information of bTrade solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without bTrade’s prior written consent (or as expressly permitted by this Agreement). Customer agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. However, Customer does not bear any responsibility for safeguarding any information that it can document in writing (i) is in the public domain through no fault of its own, (ii) was properly known to it, without restriction, prior to disclosure by disclosing party, (iii) was properly disclosed to it, without restriction, by another person with the legal authority to do so, (iv) is independently developed by receiving party without use or reference to disclosing party’s proprietary information or (v) is required to be disclosed pursuant to a judicial or legislative order or proceeding; provided that, to the extent permitted by and practical under the circumstances, receiving party provides to disclosing party prior notice of the intended disclosure and an opportunity to respond or object to the disclosure or if prior notice is not permitted or practical under the circumstances, prompt notice of such disclosure. For purposes of this Agreement, “Confidential Information” means this Agreement and all its Schedules, any addenda hereto signed by both parties, all software listings, Documentation, information, data, drawings, benchmark tests, specifications, trade secrets, object code and machine-readable copies of the Software, and any other proprietary information supplied to Customer by bTrade or by Customer to bTrade which is clearly marked as “confidential” if in tangible form, or identified as “confidential” if orally disclosed. The provisions of Section 2 shall survive the termination of this Agreement.

3. Export Restrictions. The Software should be exported from the United States in accordance with the Export Administration Regulations. Diversion contrary to U.S. law is prohibited. You shall comply fully with all relevant export laws and regulations, including but not limited to the U.S. Export Administration Regulations and Executive Orders (“Export Controls”). You agree that you shall not export, directly or indirectly, re-export, divert or transfer the software or any related technical information or material, or direct products thereof, to any destination, or person or entity restricted or prohibited by Export Controls, and you represent that you are not such a person. Exporting Software without prior approval of the US Government is strictly prohibited. It is the sole responsibility of Customer to obtain any required export licenses or waivers, which may or may not be given, by the U.S. Government, prior to exporting Software outside the US.
4. EXPORT LIABILITY DISCLAIMER:  bTrade LLC (bTrade) information technology and data security solutions and managed services (“products and services”) are intended for sale, distribution and use in the United States.  bTrade makes no representations or warranties, express or implied, that its products and services are not otherwise subject to U.S. export laws and regulations.  If the recipient of this email intends to export (by physical or electronic means), or uses or changes and/or distributes any bTrade products or services in a country outside the U.S., which includes the release of bTrade technology or software to a foreign national, even if the foreign national is located in the U.S, unless otherwise agreed to between bTrade and recipient, the email recipient shall be the sole party responsible for any export-related actions and any consequences derived from such actions.  In this context, the email recipient shall be solely responsible for identifying and complying with all applicable U.S. export control laws and regulations, and shall hold bTrade harmless from and against any claims, liabilities and expenses resulting from actions in contravention of U.S. export laws or regulations.
5. Limited Warranty. bTrade warrants the magnetic tape and/or diskette on which the Software is recorded, as well as related printed materials, to be free from defects in materials or workmanship in normal use and service for a period of ninety (90) days from delivery of the Software. If during this ninety-day period, a defect in the magnetic media should appear, the tape and/or diskette may be returned to bTrade for replacement without charge. bTrade also represents and warrants that the Software will perform substantially in accordance with the Software Documentation for a period of 90 days from delivery of the Software. bTrade does not warrant or represent (a) that the functions contained in the Software will meet Customer’s requirements or will operate in the combination selected by Customer, (b) that the operation of the Software will be error free, or (c) that the operation of the Software will not be interrupted by reason of defect or by reason of fault on the part of anyone. bTrade, at its discretion, may also periodically provide functional and/or operational enhancements to the Software to Customer.

Except as expressly set forth in this Agreement, bTrade makes no warranties, whether express or implied, or statutory regarding or relating to the Software or the Documentation, or any materials or services furnished or provided to Customer under this Agreement. Specifically, bTrade does not warrant that the Software will be error free or will perform in an uninterrupted manner. TO THE MAXIMUM EXTENT ALLOWED BY LAW, bTrade SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE (EVEN IF bTrade HAD BEEN INFORMED OF SUCH PURPOSE) WITH RESPECT TO THE SOFTWARE, DOCUMENTATION AND MAINTENANCE SERVICES AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING.

5. Indemnification. bTrade shall hold harmless, defend, and indemnify Customer against lawsuits based on any claim that the Software delivered to Customer under the Agreement infringes on any United States patent, copyright, or trademark, provided that Customer gives bTrade prompt written notice of such suits and permits bTrade to control the defense and the settlement thereof. Customer may elect to participate in any such action with any attorney of its own choice at its own expense. In the event that, as a result of any such claim of infringement, Customer is enjoined from using the Software, or if Customer or bTrade reasonably believes that the Software is likely to become the subject of an infringement claim, bTrade may, at its option and expense, procure the right for Customer to continue using the Software, modify the Software so as to make it non-infringing or replace the Software with other software with similar functionality, provided that the performance thereof is not adversely affected in a material manner. If bTrade, in its reasonable discretion, determines that neither of these options is commercially reasonable, bTrade may terminate, with 30 days written notice, the license granted herein with respect to the affected Software and, as its sole liability, refund to Customer the applicable license fee to the extent then paid by Customer upon return of the affected Software. Notwithstanding the foregoing, bTrade shall have no liability for any claim of infringement based on (i) use of a superseded or altered release of the Software, except for which alteration(s) or modification(s) has been made by bTrade or under bTrade’s direction, if such infringement would have been avoided by the use of the current unaltered release of the Software that bTrade provides to Customer, or (ii) the combination, operation, or use of any Software furnished under this Agreement with programs or data not furnished by bTrade if such infringement would have been avoided by the use of the Software without such programs or data. Customer agrees that, regardless of the form of any infringement claim or termination of the license pursuant to this section, bTrade’s aggregate liability for any damages or loss to Customer or any other party shall not exceed the license fee then paid for the Software.
6. Fees and Taxes. Customer 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 transactions contemplated by this Agreement, excepting, however, taxes based upon or measured by the income or revenues received by bTrade. Customer shall promptly pay to bTrade an amount equal to any such items actually paid or required to be paid by bTrade. All amounts owed to bTrade shall be paid in U.S. dollars.

7. Governing Law. This License Agreement is to be governed by and interpreted in accordance with the laws of the State of California with venue in Los Angeles County, California. If any provision of this Agreement in any way contravenes the laws of the state or jurisdiction in which this Agreement is to be performed, such provisions shall be deemed to be deleted and if any term of this Agreement shall be declared by final adjudication to be illegal or contrary to public policy, it shall not affect the validity of any other term or provision of this Agreement.

8. Limitation of Liability. TO THE FULL EXTENT ALLOWED BY LAW, bTrade SHALL IN NO EVENT BE HELD LIABLE, WHETHER BASED UPON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF BTRADE HAS BEEN ADVISED OF OR COULD HAVE REASONABLY FORESEEN THE POSSIBILITY OF SUCH DAMAGES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS TO CUSTOMER OR OTHERS ARISING UNDER OR RELATED TO THIS AGREEMENT. BTRADE’S AGGREGATE LIABILITY SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER HEREUNDER, EXCEPT THAT (i) IF SUCH LIABILITY IS THE RESULT OF CUSTOMER’S LICENSE OF SOFTWARE, BTRADE’S LIABILITY SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER FOR THE RELEVANT SOFTWARE MODULE; (ii) IF SUCH LIABILITY IS THE RESULT OF MAINTENANCE SERVICES, BTRADE’S LIABILITY SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER FOR THE ONE-YEAR PERIOD IMMEDIATELY PRECEDING THE CAUSE OF ACTION; AND (iii) IF SUCH LIABILITY IS THE RESULT OF OTHER SERVICES, BTRADE’S LIABILITY SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER FOR SUCH SERVICES.

9. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between bTrade and Customer regarding the licensed Software. There are no understandings, agreements, or representations not specified herein with respect to this Agreement. The terms of this Agreement shall supersede any previous agreements between bTrade and Customer. Any purchase order or other document issued by Customer is for administrative convenience only. The provisions of this Agreement shall govern, and any additional or conflicting terms in any purchase order or other document (except an Amendment executed pursuant to section 13) shall be inapplicable and of no legal effect. Any modification or amendment to this Agreement may be made only in a writing identified as an “Amendment” and signed by both parties to this Agreement.

10. Termination. bTrade may, by written notice to Customer, terminate this Agreement if Customer is in breach of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days (ten (10) days in the case of nonpayment) after bTrade gives Customer written notice of such breach; or bTrade may terminate this Agreement immediately upon notice if Customer breaches any of its obligations under Section 2 (Title to Software and Confidentiality) above.

11. Assignment. Customer may not assign this Agreement without bTrade’s prior express written consent.

12. Audit and Monitoring. Customer agrees to allow bTrade to audit the relevant records and systems of Customer to verify compliance with the terms of this Agreement. Such audit shall be conducted no more than once per twelve (12) month period, upon reasonable notice, during normal business hours, and in such a manner as to not unreasonably interfere with Customer’s business. bTrade shall bear all costs of such audit unless a Material Discrepancy is found, in which case, Customer shall bear all costs of such audit. A “Material Discrepancy” means an underpayment by Customer of five percent (5%) or more during any twelve (12) month period. If such audit reveals an underpayment, then Customer shall promptly pay to bTrade such underpaid amounts.

13. Other Projects. This Agreement shall not prevent bTrade from entering into similar agreements with third parties, or from using, selling, or licensing materials, products, or services that are similar to those provided hereunder.