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DAYLIGHT SOFTWARE 4.X LICENSE AGREEMENT (v3)

IMPORTANT - READ CAREFULLY:

Before you install the following DAYLIGHT License Key ("DLK") to activate your copy of DAYLIGHT software identified in the DLK, carefully read this legal agreement regarding your use of the SOFTWARE, as defined below. Installing the DLK means that you are accepting this agreement and that you are legally bound by it. If you are not willing to accept the terms of this agreement, do not install the DLK, remove the SOFTWARE from your system, destroy your copies of the DLK and SOFTWARE and notify DAYLIGHT by return e-mail. Your purchase order will be cancelled and all license fees paid will be returned. This license agreement is your proof of license.

This DAYLIGHT License Agreement ("Agreement") is a legal agreement between you, either an individual or a single entity, as named in the DAYLIGHT License Key ("DLK") ("LICENSEE"), and Daylight Chemical Information Systems, Inc., with offices at P.O. Box 7737, Laguna Niguel, California 92607 ("DAYLIGHT") for the DAYLIGHT software product(s) identified in the DLK and LICENSEE purchase order, which includes computer software and associated media and printed materials, and may include "online" or electronic documentation (collectively, "SOFTWARE"). The parties hereby agree as of the date of acceptance by LICENSEE as follows:

1. LICENSE GRANT. DAYLIGHT hereby grants to LICENSEE a non-transferable, time-limited, nonexclusive, limited right and license on the terms and conditions stated herein, to use the SOFTWARE for internal purposes only. The LICENSEE has the right to use the SOFTWARE only on the designated hardware at the location described in the DLK. All results emanating from the SOFTWARE can be transferred to LICENSEE's other sites, but LICENSEE shall not offer any results emanating from the SOFTWARE or the use of it, as an "on-line" or other data service without prior written approval of DAYLIGHT.

2. TITLE. LICENSEE agrees that the SOFTWARE, all enhancements and derivative works thereof, whether prepared by or for LICENSEE, all copies thereof, and all information and intellectual property contained therein is proprietary to DAYLIGHT, embodying substantial creative efforts and proprietary information, ideas, intellectual properties and expressions, and that the furnishing thereof does in no way constitute the granting or waiver, by DAYLIGHT, of its proprietary interest or exclusive rights therein. DAYLIGHT reserves all rights to the SOFTWARE not expressly granted herein. As used herein, "enhancement" shall be deemed to include any work which constitutes a derivative work or adaptation under the laws established by the United States Copyright Act (Title 17 U.S.C.) and includes any revision, modification, translations, abridgement, condensation, expansion, compilation, patch, interface, any work, whether in tangible or intangible form, or any other form in which the Software may be recast or used in whole, in part, or as part of a larger whole derived or adapted from the software licensed hereunder.

3. EXPRESSLY PROHIBITED USES. Except for making an archive copy of the SOFTWARE, LICENSEE agrees that it will not allow unauthorized use, or copying of the SOFTWARE, agrees that it will not disassemble, decompile, recast, or otherwise reverse engineer the SOFTWARE programs; that it will not rent, lease, transfer, network, reproduce, display, or otherwise distribute the SOFTWARE; that it will not copy the SOFTWARE in any form except as necessary to use the SOFTWARE in accordance with this Agreement, that it will not use the SOFTWARE or any parts of it or any ideas or concepts of this SOFTWARE for generating similar, derivative or competitive product(s) and that it will not permit access to the SOFTWARE by anyone other than such of its employees as have a need for such access to fulfill the purpose of this Agreement. Under no circumstances shall the SOFTWARE be used for any other purpose except for those described in this License.

4. FEES AND PAYMENT. LICENSEE shall pay DAYLIGHT the annual license fee in the amount indicated on the DAYLIGHT Invoice ("Invoice") for the use of SOFTWARE, within the term as indicated in the Invoice, under no circumstance shall the payment be done in more than 30 days of the date of such Invoice. Such fee is exclusive of any and all taxes, excises or any other charges imposed by law or regulation of any governmental body, however designated or levied, with respect to the SOFTWARE, and exclusive of any sales, gross receipts, use, property or privilege or excise taxes. Should such fee not be timely paid, DAYLIGHT has the option of extending payment privilege for an additional charge determined solely by DAYLIGHT, and to otherwise collect the amount due at the cost of LICENSEE. If DAYLIGHT is required to pay a tax for which LICENSEE is responsible, and pays the tax, LICENSEE shall reimburse DAYLIGHT promptly upon DAYLIGHT's request as if it were a fee.

5. NO WARRANTY. LICENSEE UNDERSTANDS AND AGREES THAT THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR OR ANY PURPOSE. DAYLIGHT SHALL HAVE NO LIABILITY TO RECIPIENT WHATSOEVER ON ACCOUNT OF ANY MALFUNCTION OF THE SOFTWARE, OR THE FAILURE OF THE SOFTWARE TO PERFORM AT ALL OR AS EXPECTED.

6. LICENSEE understands that the SOFTWARE may require a complete version of the specific programming language and/or operating system identified by DAYLIGHT and LICENSEE agrees that LICENSEE is solely responsible for providing the required environment, including, but not limited to, the supported version of the operating system, supported CPU platform, and any applicable version of the Oracle(R) Server Software.

7. LIMITATION OF LIABILITY. Licensee's sole remedy for any breach of this Agreement by DAYLIGHT shall be the provision of replacement Software. In no event shall DAYLIGHT be liable for any indirect, special, exemplary, incidental or consequential damages, including, without limitation, loss of business, loss of data, lost profits or liability or injury to third persons or entities, whether foreseeable or not, regardless of whether DAYLIGHT has been advised of the possibility of any damage. LICENSEE hereby agrees to indemnify, defend and hold harmless DAYLIGHT from any and all liability arising out of or in connection with LICENSEE's proper or improper and unauthorized use of the SOFTWARE or any parts of it. In no event shall LICENSEE be entitled to any damage in excess of LICENSEE's payments to DAYLIGHT received in the preceding 12 months hereunder on a pro-rated basis.

8. NON-INFRINGEMENT. DAYLIGHT represents that, to the best of its knowledge, the SOFTWARE does not infringe upon any copyright, patent, or trademark held by any third party. In the event that DAYLIGHT receives a formal notice that the SOFTWARE or any parts of the SOFTWARE, infringes upon any such copyright, patent, or trademark, DAYLIGHT, at its own expense, shall modify or otherwise take such steps as may be necessary so that the SOFTWARE does not so infringe upon the rights of the third party. If DAYLIGHT determines that it is not practical to so modify the SOFTWARE, or obtain a license from such third party, it may cancel this Agreement. In the event that this cancellation shall take place within the first twelve (12) months of this license, DAYLIGHT shall refund any license fee previously paid by LICENSEE on a pro-rated basis.

9. TERM AND TERMINATION. The term of this AGREEMENT shall commence on the Effective Date, and continue for the period of 1 year from the date first executed ("Effective Date"), after which it will automatically renew for a period of one year. In addition to all terms and conditions of this agreement, the continuation and renewal of this agreement past the first year and the subsequent renewal thereafter, shall be contingent upon the fulfillment of LICENSEE's financial obligations; annual payment. This Agreement and the license granted herein shall continue until terminated as described in this Section. If LICENSEE breaches this Agreement, DAYLIGHT shall have the right to terminate this Agreement hereunder thirty (30) days after notice has been sent to LICENSEE by certified mail, return receipt requested, or email, specifying the nature of the breach, allowing right to cure. If breach remains unremedied, LICENSEE shall immediately return the SOFTWARE to DAYLIGHT and shall destroy all copies and enhancements which LICENSEE still has in its possession. Notwithstanding the foregoing, however, in the event the breach by LICENSEE involves the unauthorized sale or distribution of the SOFTWARE, or results generated by the SOFTWARE, or any portion or enhancement thereof, to any third party, DAYLIGHT may immediately terminate the license granted hereunder without prior notice. LICENSEE shall also be responsible for any damages caused to DAYLIGHT which may result from LICENSEE's breach of the Agreement, including DAYLIGHT's costs and damages occasioned by act or omission on the part of LICENSEE, and its damages in enforcement of this agreement. The remedies specified herein are cumulative, and are in addition to any other remedies which DAYLIGHT may have at law. This agreement can be not renewed if a notice is posted by either party 60 days prior to the expiration of the term of this agreement. Licensee agrees that this Agreement shall not be assigned, in whole or in part, by Licensee and any attempt to assign the Agreement shall be invalid. Licensee further agrees that this Agreement shall terminate if Licensee is acquired by another entity, if all or substantially all of Licensee's assets are acquired by or assigned to another entity, or if Licensee undergoes a change in ownership of greater than fifty (50) percent of its stock. Should Licensee to be declared bankrupt or insolvent, be placed under the protection of any law for the relief of debtors(whether or not accompanied by appointment of a trustee, receiver, or other legal representative), or otherwise enter into any judicial or administrative procedure which is designed to or has or can have the effect of relieving debtors or satisfying debts of debtors, Daylight may, without depriving itself of any other relief accorded by statute or at common law, terminate this Agreement immediately following written notice to the Licensee, or may elect to continue this Agreement or make any other election provided by law.. Upon termination for any reason, Licensee shall return to DAYLIGHT any and all copies of the SOFTWARE, in whatever form, and will destroy any and all copies of the SOFTWARE that are situated on its computer systems, certify such destruction of the SOFTWARE and shall not use any of the SOFTWARE. In the event of termination, the following sections of this Agreement will survive: 2, 3, 4, 5, 7, 9, 10, 11, 12, 13, and 14.

10. GENERAL. This Agreement, related Invoice and the DLK constitute the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous representations or agreements, whether written or oral, including any terms or conditions of LICENSEE's Purchase Order. This Agreement may only be amended by a written agreement, signed by both parties. LICENSEE agrees that no transfer of this Agreement and/or the DLK shall occur. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. This agreement shall be governed by the laws of the State of California, excluding conflict of law provisions. If there is any litigation between the parties concerning this License Agreement, or the subject matter of it, the prevailing party in such litigation shall be entitled to recover their reasonable attorney's fees and all court costs. The parties expressly agree that venue (subject to removal by either party for a Federal Court question) for any such litigation shall be in the Superior Court of the County of Orange, State of California, USA and they waive any right to litigate any dispute at any other venue or to dispute the jurisdiction of such court.

11. U.S. GOVERNMENT END USERS. The SOFTWARE is a "commercial item" as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation", as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U. S. Government LICENSEES acquire the SOFTWARE with only those rights set forth in this Agreement.

12. LICENSEE agrees that it will not directly or indirectly export, re-export, or transmit or allow access the SOFTWARE or related documentation and technical data to and from, any country, person, entity or end user subject to U.S.A. export or transmission restrictions.

13. SEVERABILITY. If any term, covenant or condition of this Agreement or the application thereof to any party or circumstance shall, to any extent, be held to be invalid or unenforceable, then the remainder of this Agreement, or the application of such term, covenant or condition to parties or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and enforced to the fullest extent permitted by law. The parties covenant and agree to renegotiate any such term, covenant or condition or the application thereof in good faith in order to provide a reasonably acceptable alternative to the term, covenant or condition of this Agreement or the application thereof that is invalid or unenforceable, it being the intent of the parties that the basic purposes of this Agreement are to be effectuated.

14. No right, power or privilege hereunder shall be deemed to have been waived unless expressly waived in a written document signed by the party waiving the same.

DAYLIGHT SOFTWARE 4.X EVALUATION LICENSE AGREEMENT (v3)

IMPORTANT - READ CAREFULLY

Before you install the following Daylight Evaluation License Key ("DELK") to activate your copy of DAYLIGHT software identified in the DELK, carefully read this legal agreement regarding your use of the SOFTWARE, as defined below. Installing the DELK means that you are accepting this agreement and that you are legally bound by it. If you are not willing to accept the terms of this agreement, do not install the DELK, remove the SOFTWARE from your system, destroy your copies of the DELK and SOFTWARE and notify DAYLIGHT by return e-mail. This license agreement is your proof of license.

This Daylight Evaluation License Agreement ("Agreement") is a legal agreement between you, either an individual or a single entity, as named in the DELK ("LICENSEE") and Daylight Chemical Information Systems, Inc., with offices at P.O. box 7737, Laguna Niguel, California ("DAYLIGHT") for the DAYLIGHT software product(s) identified in the DELK, which includes computer software and associated media and printed materials, and may include "online" or electronic documentation ("SOFTWARE"). The parties hereby agree as of the date of acceptance by LICENSEE as follows:

1. LICENSE GRANT. DAYLIGHT hereby grants to LICENSEE, without charge, a sixty (60) day, non-transferable, non assignable, non-exclusive, limited right to use the SOFTWARE for evaluation purposes only, all in accordance with this Agreement. The SOFTWARE is to be used only on a single computer at LICENSEE's location as specified in the DELK. LICENSEE will make reasonable efforts to report the results of its evaluation to DAYLIGHT, within sixty (60) days after LICENSEE's receipt of the DELK.

2. TITLE. LICENSEE agrees that the SOFTWARE, all enhancements and derivative works thereof, whether prepared by or for LICENSEE, all copies thereof, and all information and intellectual property contained therein is proprietary to DAYLIGHT, embodying substantial creative efforts and proprietary information, ideas, intellectual properties and expressions, and that the furnishing thereof does in no way constitute the granting or waiver, by DAYLIGHT, of its proprietary interest or exclusive rights therein. DAYLIGHT reserves all rights to the SOFTWARE not expressly granted herein. As used herein, "enhancement" shall be deemed to include any work which constitutes a derivative work or adaptation under the laws established by the United States Copyright Act (Title 17 U.S.C.) and includes any revision, modification, translations, abridgement, condensation, expansion, compilation, patch, interface, any work, whether in tangible or intangible form, or any other form in which the Software may be recast or used in whole, in part, or as part of a larger whole derived or adapted from the software licensed hereunder.

3. EXPRESSLY PROHIBITED USES. LICENSEE agrees that it will not allow unauthorized use, or copying of the SOFTWARE, agrees that it will not disassemble, decompile, recast, or otherwise reverse engineer the SOFTWARE programs; that it will not rent, lease, transfer, network, reproduce, display, or otherwise distribute the SOFTWARE; that it will not copy the SOFTWARE in any form except as necessary to use the SOFTWARE in accordance with this Agreement; and that it will not permit access to the SOFTWARE by anyone other than such of its employees as have a need for such access to fulfill the purpose of this Agreement, that it will not use the SOFTWARE or any parts of it or any ideas or concepts of this SOFTWARE for generating similar, derivative or competitive product(s). Under no circumstances shall the SOFTWARE be used for any other purpose except for those described in this License. Without limiting the generality of the foregoing, LICENSEE shall not use the SOFTWARE for any commercial or research purposes.

4. NO WARRANTY. LICENSEE UNDERSTANDS AND AGREES THAT THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR OR ANY PURPOSE. DAYLIGHT SHALL HAVE NO LIABILITY TO RECIPIENT WHATSOEVER ON ACCOUNT OF ANY MALFUNCTION OF THE SOFTWARE, OR THE FAILURE OF THE SOFTWARE TO PERFORM AT ALL OR AS EXPECTED.

5. LICENSEE understands that the SOFTWARE may require a complete version of the specific programming language and/or operating system combination named in "Computer type and O/S" submitted by LICENSEE to obtain a DELK, and LICENSEE agrees that LICENSEE is solely responsible for providing the required environment, including, but not limited to the Operating System and CPU.

6. LIMITATION OF LIABILITY. LICENSEE's sole remedy for any breach of this Agreement by DAYLIGHT shall be the provision of replacement SOFTWARE. In no event shall DAYLIGHT be liable for any indirect, special, exemplary, incidental or consequential damages, including, without limitation, loss of business, loss of data, lost profits or liability or injury to third persons or entities, whether foreseeable or not, regardless of whether DAYLIGHT has been advised of the possibility of any damage. LICENSEE hereby agrees to indemnify, defend and hold harmless DAYLIGHT from any and all liability arising out of or in connection with LICENSEE's proper or improper and unauthorized use of the SOFTWARE or any parts of it. In no event shall LICENSEE be entitled to any damage in excess of LICENSEE's payments to DAYLIGHT hereunder.

7. TERM AND TERMINATION. The limited right to use granted hereby shall terminate sixty (60) days from LICENSEE's receipt of the DELK and shall automatically immediately terminate if LICENSEE violates any provisions of this Agreement. LICENSEE may terminate this Agreement at any time by written notice to DAYLIGHT. Upon termination, unless DAYLIGHT and LICENSEE have entered into a permanent license agreement in respect of the SOFTWARE, LICENSEE shall certify that all use of the SOFTWARE, in whatever form, and files created therefrom including, but not limited to, the data, information and immediate and derivative results generated have been permanently discontinued, and any and all copies of the SOFTWARE and files created therefrom have been destroyed. If requested LICENSEE shall certify, in writing, the destruction of the files and removal of the Software. LICENSEE shall also be responsible for any damages caused to DAYLIGHT that may result from LICENSEE's breach of the agreement, including but not limited to DAYLIGHT's costs and damages occasioned by act or omission on the part of LICENSEE, and its damages in enforcement of this agreement. The remedies specified herein are cumulative, and are in addition to any other remedies that DAYLIGHT may have at law. In the event of any termination, the following sections of this Agreement will survive: 2, 3, 4, 6, 7, 8, 9, 10 and 11.

8. GENERAL. LICENSEE agrees that no transfer of this Agreement shall occur. This Agreement and the DELK constitute the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings regarding the SOFTWARE, whether written or oral. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. This Agreement shall be interpreted and governed according to the laws of the State of California, excluding conflict of law provisions. If there is any litigation between the parties concerning this License Agreement, or the subject matter of it, the prevailing party in such litigation shall be entitled to recover their reasonable attorney's fees and all court costs. The parties expressly agree that venue (subject to removal by either party for a Federal Court question) for any such litigation shall be in the Superior Court of the County of Orange, State of California, and they waive any right to litigate any dispute at any other venue or to dispute the jurisdiction of such court. No right, power, or privilege hereunder shall be deemed to have been waived unless expressly waived in a written document signed by the party waiving the same.

9. U. S. GOVERNMENT END USERS. The SOFTWARE is a "commercial item" as that term is defined in 48 C.F.R 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation", as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U. S. Government End Users acquire the SOFTWARE with only those rights set forth in this Agreement.

10. LICENSEE agrees that it will not directly or indirectly export, re-export, or transmit the SOFTWARE or related documentation and technical data to any country, person, entity or end user subject to U.S.A. export or transmission restrictions.

11. SEVERABILITY. If any term, covenant or condition of this Agreement or the application thereof to any party or circumstance shall, to any extent, be held to be invalid or unenforceable, then the remainder of this Agreement, or the application of such term, covenant or condition to parties or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and enforced to the fullest extent permitted by law. The parties covenant and agree to renegotiate any such term, covenant or condition or the application thereof in good faith in order to provide a reasonably acceptable alternative to the term, covenant or condition of this Agreement or the application thereof that is invalid or unenforceable, it being the intent of the parties that the basic purposes of this Agreement are to be effectuated.

12. No right, power or privilege hereunder shall be deemed to have been waived unless expressly waived in a written document signed by the party waiving the same.