END-USER LICENSE AND SERVICES AGREEMENT

PLEASE READ THIS END-USER LICENSE AND SERVICES AGREEMENT (“AGREEMENT”) CAREFULLY. BY INSTALLING OR USING THE SOFTWARE THAT ACCOMPANIES THIS AGREEMENT, ANY COMPONENTS OF THE SOFTWARE, OR ANY UI THE d3VIEW APPLICATION CONNECTS WITH (ALL COLLECTIVELY AND EACH INDIVIDUALLY REFERRED AS THE “SOFTWARE”), OR BY USING THE d3VIEW SERVICES THAT ACCOMPANY THIS AGREEMENT, OR ANY d3VIEW WEBSITE or UI THROUGH WHICH THE SERVICES ARE PROVIDED (ALL COLLECTIVELY AND EACH INDIVIDUALLY REFERRED AS THE “SERVICES”), YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS, DO NOT USE, ACCESS, OR USE THE SOFTWARE OR SERVICES.

1. GENERAL. This Agreement is a legal agreement between you (either an individual or single entity) and Xfinity, Inc. Doing Business As d3VIEW (“d3VIEW”). This Agreement governs use of the Software, which includes computer software (including any online and electronic documentation) and associated media and printed materials and the Services. This Agreement applies to updates, enhancements, or other add- on components that d3VIEW may provide or make available to you, unless d3VIEW provides other terms with the update, enhancement, or add-on component. THE SOFTWARE IS LICENSED, NOT SOLD.
2. GRANT.
   
   1. License. Subject to the use limitations and other terms and conditions set forth in this Agreement, and provided that you comply with all terms and conditions of this Agreement, d3VIEW hereby grants you a limited, nonexclusive, nontransferable and revocable license during the Agreement term to access and use the Software, in object code for, or in the format in which it was distributed (i.e. machine language compiled format) and the Services for your own internal business use on the designated CPUs or license server at the designated site. No license or access is granted for any other purpose and there are no implied licenses in this Agreement.
   2. Limitations. In addition to other restrictions in this Agreement, you will not (a) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Software or Services; (b) make any modification, improvement, adaptation, enhancement or derivative work from the Software or Services; (c) violate any applicable laws, rules or regulations in connection with your access or use of the Software or Services; (d) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of d3VIEW or its affiliates, partners, suppliers or the licensors of the Software or Services; (e) use the Software or Services for any purpose for which it is not designed or intended; (f) install, use or permit the Software to exist on more than one computer, including any mobile device; (g) distribute, rent, market, lease or transfer the Software to any third party without the prior written consent of Licensor; (h) rent or timeshare the Software or make the Software available over a network or other environment permitting access or use by multiple users or devices; (i) use the Software or Services for creating a product, service or Software to any third party that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by d3VIEW; or (j) engage in any activity with the Software that interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, or other properties or services of d3VIEW; or (k) use any proprietary information or interfaces of d3VIEW or other intellectual property of d3VIEW in the design, development, manufacture, licensing or distribution of any Software, accessories or devices for use with the Software or Services.
   3. Title. d3VIEW reserves all rights not expressly granted. You understand that the license granted herein transfers neither title nor proprietary rights to you with respect to the Software or Services.
3. Fees and Payment. Licensee shall pay all fees for the Software and Services as set forth in the applicable order form, subscription agreement, or invoice. All fees are due and payable annually or as per the subscription term in advance, unless otherwise agreed in writing. Fees are non-refundable except as expressly provided in this Agreement. Any amounts not paid when due will accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law, from the due date until paid. Licensee shall be responsible for all taxes, duties, and similar governmental charges arising from this Agreement (excluding taxes based on Licensor’s net income).
4. TERM AND TERMINATION. This Agreement is effective upon your activation or installation of the Software and remains in effect for the duration of the subscription term or unless terminated sooner, as provided herein. d3VIEW may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this Agreement and the rights afforded to you hereunder upon notice to you. Upon termination of this Agreement for any reason, you will immediately stop using the Software or Services and will either destroy or return the original and all copies, in whole or in part, in any format, of the Software. You will certify such action in writing to d3VIEW within two (2) weeks after the termination date. If any assignment shall be made of Licensee’s business for the benefit of creditors, or if a trustee in bankruptcy, or a similar officer shall be appointed to take charge of all or part of Licensee’s property, or if Licensee is adjudged bankrupt, this Agreement shall immediately terminate. Upon termination of this Agreement, those provisions that specifically provide for survival beyond expiration or termination, and all provisions, if any, regarding indemnification, limitations of liability and confidentiality will survive indefinitely.
5. Subscription Renewal. This Agreement and the associated subscription shall automatically renew for successive one (1) year terms unless Licensee provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current subscription term. All renewal subscription fees shall be invoiced annually in advance and are due prior to the commencement of the renewal term, at Licensor’s then- current subscription rates. Notwithstanding the foregoing, Licensee may cancel an automatically renewed subscription at any time during the renewal term by providing at least thirty (30) days’ prior written notice. In such case, subscription fees will be pro-rated through the effective date of cancellation (i.e.,thirty (30) days following Licensor’s receipt of Licensee’s cancellation notice), and Licensee shall remain responsible for all fees accrued up to that date, calculated at Licensor’s then-current subscription rates. Licensee acknowledges and agrees that any renewal term, and any continued use of the Software or Services, shall be subject to Licensor’s then-current End-User License and Services Agreement (“EULSA”), which Licensor may amend from time to time in its sole discretion. Continued use of the Software or Services following renewal constitutes Licensee’s acceptance of the most recent version of the EULSA, including any changes in pricing, policies, or terms.
6. CONFIDENTIALITY. Licensee agrees to maintain the confidentiality of the Software, License Key, and any non-public materials provided by Licensor, with the same degree of care it uses to protect its own confidential information. Licensee agrees to hold the Licensed Software in confidence and to limit access to those of its employees who have a need to know and who agree to be bound by the terms of this Agreement. Licensee and its employees agree not to disclose the Licensed Software, or any part thereof to a third party without prior written permission of Licensor.
7. Data Usage. To the extent Licensee provides or uploads data in connection with its use of the Software or Services, Licensee grants Licensor a limited right to use, process, and store such data solely as necessary to provide the Software and Services. Licensee remains solely responsible for the accuracy, quality, and legality of such data and for obtaining all rights and consents necessary for Licensor’s use thereof.
8. Licensee Marking Obligations. Licensee shall take all reasonable precautions to preserve Licensor copyright and other proprietary rights. Licensee shall not remove any copyright or other proprietary right notices included in the Licensed Software.
9. Audit. Licensor shall have the right, upon reasonable prior notice and during Licensee’s normal business hours, to audit Licensee’s use of the Software and Services to ensure compliance with this Agreement. Licensee agrees to cooperate with such audit and to provide access to relevant records. If an audit reveals underpayment or unauthorized use, Licensee shall promptly pay all amounts due and, if such underpayment exceeds five percent (5%) of the amounts owed, Licensee shall reimburse Licensor for the cost of the audit.
10. Limited Warranty. d3VIEW represents and warrants that the Software will operate in conformance with this Agreement and the Services will be performed in a good and workmanlike manner. Your sole and exclusive remedy for d3VIEW’s breach of the foregoing warranty is, in the case of Software, for d3VIEW to modify the Software so that it does conform to the terms of this Agreement and, in the case of Services, for d3VIEW to re-perform the Services. EXCEPT AS PROVIDED ABOVE, THE SOFTWARE, SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. LICENSORS HEREBY DISCLAIM ANY AND ALL ADDITIONAL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE SOFTWARE, AND SERVICES WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. IN PARTICULAR, LICENSOR MAKES NO REPRESENTATION OR WARRANTY THAT (A) THE SOFTWARE OR SERVICES WILL MEET YOUR REQUIREMENTS; (B) THE SOFTWARE, SERVICES, WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE OR ERROR-FREE; (C) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE SOFTWARE WILL BE AS REPRESENTED WILL MEET LICENSEE’S REQUIREMENTS, OPERATE IN COMBINATIONS SELECTED BY LICENSEE, PRODUCE RESULTS DESIRED BY LICENSEE. LICENSOR HAS NO OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE SUPPORT OR MAINTAIN THE SOFTWARE. Support and Updates: Unless otherwise expressly agreed in writing, Licensor has no obligation to provide maintenance, support, updates, or enhancements for the Software or Services. Any updates or enhancements that Licensor may elect to provide shall be subject to the terms of this Agreement.
11. Limitation of Liability. LICENSOR AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT MAY ARISE IN CONNECTION WITH FURNISHING, PERFORMANCE, OR USE BY LICENSEE OF THE LICENSED SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND. Licensee shall be solely responsible for selecting the Licensed Software and for verifying or using the results obtained using the Licensed Software. Licensee agrees to indemnify and hold Licensor and its suppliers harmless for any claims, losses, or damages, of whatever nature and without limitation, arising from the use by Licensee of the software furnished hereunder. In any event, Licensee agrees that Licensor’s liability and its supplier’s liability hereunder for damages shall not exceed the annual license fee paid by Licensee.
12. Indemnification. Licensee agrees to indemnify, defend, and hold harmless Licensor and its affiliates, officers, employees, and agents from and against any claims, liabilities, damages, losses, and expenses (including reasonable attorneys’ fees) arising out of or related to: a) Licensee’s use of the Software or Services in violation of this Agreement or applicable law; b) any modifications or combinations of the Software not made or authorized by Licensor; or c) any data, results, or analyses generated by Licensee using the Software. Licensor’s sole indemnification obligation is set forth in Section 9 (Patent and Copyright Indemnity).
13. Patent & Copyright Indemnity. Licensor shall indemnify and defend Licensee against any and all claims that the Licensed Software infringes any U. S. patent or copyright or violates any other proprietary right of a third party, provided that Licensor is given prompt notice of such claims and is given information, reasonable assistance and sole authority to defend or settle the claim. In the defense or settlement of the claim, Licensor may obtain for Licensee the right to continue using the Licensed Software, replace or modify the Licensed Software so that it becomes non-infringing while giving equivalent performance or if such remedies are not reasonably available remove the Licensed Software and accept its return for a prorated refund of the current annual license fee. Licensor shall have no liability if the alleged infringement is based on a modification of the Licensed Software by anyone other than Licensor or is based on use of the Licensed Software other than in accordance with Licensor specifications and Documentation.
14. General. 

14.1. Governing Law and Dispute Resolution. This Agreement will be governed by the laws of the State of Michigan without regard to conflicts of law principles. If a dispute arises between Licensor and Licensee relating to this Agreement, the following procedure shall be implemented before either party pursues other available remedies except that each party may seek injunctive relief from a court where appropriate in order to maintain the status quo while this procedure is being followed:

1. 1. 1. The parties shall hold a meeting promptly, attended by persons with decision-making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute; provided, however, that no such meeting shall be deemed to vitiate or reduce the obligations and liabilities of the parties hereunder or be deemed a waiver by a party hereto to any remedies to which such party would otherwise be entitled hereunder, and further provided that all such statements made at such meeting shall be strictly off the record and shall not be admissible in any court or arbitration proceeding.
      2. if within thirty (30) days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they agree to submit the dispute to submit the dispute to mediation in accordance with the then current Model Procedure for Mediation of Business Disputes of the CPR Institute for Dispute Resolution and to bear equally the costs of the mediation.
      3. The parties will jointly appoint a mutually acceptable mediator; seek assistance in such regard from the CPR Institute for Dispute Resolution if they have been unable to agree upon such appointment within twenty (20) days from the conclusion of the negotiation period.
      4. The parties agree to participate in good faith in the mediation and negotiations related thereto for a period of thirty (30) days. If the parties are not successful in resolving the dispute through the mediation, then the parties may submit the matter to binding arbitration or a private adjudicator or either party may seek an adjudicated resolution through the appropriate court.
      5. Mediation or arbitration shall take place at a mutually convenient site in the State Michigan to be agreed to by the parties. The substantive and procedural law of the State of Michigan shall apply to the proceedings. Equitable and compensatory remedies shall be available in any arbitration. Punitive damages, attorneys’ fees, and costs shall not be awarded. This Paragraph of this Agreement is to be governed by the Federal Arbitration Act, § 9 U.S.C.A. 1 et seq. Judgment upon the award rendered by an Arbitrator, if any, may be entered by any court having jurisdiction thereof.
      6. Force Majeure. Licensor shall not be liable for any failure or delay in performance of its obligations under this Agreement to the extent such failure or delay is caused by circumstances beyond its reasonable control, including but not limited to acts of God, natural disasters, labor disputes, acts of terrorism, governmental actions, power or Internet failures, or failures of third-party hosting providers.

14.2 Export Control. You may not use or otherwise export or re-export the Software or Services except as authorized by United States law and the laws of the jurisdiction(s) in which the Software or Services were obtained. You represent and warrant that you are not (a) located in any country that is subject to a U.S.Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.

14.3 Assignment. You may not assign, sublicense, or otherwise transfer your rights, duties or obligations under this Agreement, in whole or in part, without d3VIEW’s express prior written consent, which d3VIEW may withhold for any or no reason in its sole discretion.

14.4 Amendments. d3VIEW may modify or amend the terms of this Agreement by posting a copy of the modified or amended Agreement on the d3VIEW website, at: https://d3view.com/eulsa-2/. You will be deemed to have agreed to any such modification or amendment by your decision to continue using the Software or Services following the date in which the modified or amended Agreement is posted on the d3VIEW EULSA page on the website.

14.5 Severability; Waiver. If any provision of this Agreement is prohibited or unenforceable by any applicable law, the provision will be ineffective only to the extent and for the duration of the prohibition of unenforceability, without invalidating any of the remaining provisions. Except as provided herein, the failure to exercise a right or require performance of an obligation under this Agreement shall not affect a party’s ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute waiver of any subsequent breach.

14.6. Entire Agreement. This Agreement embodies the entire agreement and understanding between d3VIEW and you with respect to the subject matter of this Agreement and supersedes all prior oral or written agreements and understandings relating to the subject matter of this Agreement. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement will affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement. The provisions of this Agreement shall control and have precedence over the terms of any purchase order issued by Licensee.