Software License Agreement

THE FOLLOWING RELATES TO THE ACCOMPANYING BAKERRISK SOFTWARE. CAREFULLY READ ALL OF THE TERMS AND CONDITIONS BEFORE PROCEEDING. PROCEEDING WITH OPERATION OF THE SOFTWARE INDICATES ACCEPTANCE OF THE TERMS AND CONDITIONS. IF SUCH TERMS AND CONDITIONS ARE NOT ACCEPTED, OPERATION OF THE SOFTWARE WILL NOT BE PERMITTED. WITH THE EXCEPTION OF THE AGREED UPON TERM OF THE AGREEMENT, BAKERRISK RESERVES THE RIGHT TO AMEND, UPDATE, OR CHANGE THIS SOFTWARE LICENSE AGREEMENT AT ANY TIME WITHOUT PRIOR NOTICE. THE CURRENT SOFTWARE LICENSE AGREEMENT CAN BE ACCESSED ANYTIME AT WWW.BAKERRISK.COM/SOFTWARE-LICENSE-AGREEMENT. UNLESS SPECIFICALLY STATED WITHIN AN EXECUTED AGREEMENT BETWEEN BAKERRISK AND THE CUSTOMER, THESE TERMS AND CONDITIONS TAKE PRECEDENCE OVER ANY PRIOR AGREED UPON TERMS AND CONDITIONS WITH RELATION TO BAKERRISK SOFTWARE.

THIS Software License Agreement is by and between Baker Engineering and Risk Consultants, Inc., a Texas corporation located at 3330 Oakwell Court, Ste 100, San Antonio, Texas 78218, (hereinafter "BakerRisk") and the endorser of the Software (hereinafter "Customer").

WHEREAS, BakerRisk has developed a certain Software and is willing to grant a license to such Software to Customer on the terms and conditions herein.

NOW, THEREFORE, in consideration of the following terms and conditions the parties agree as follows.

1. Definitions
   1. “Coalition” shall mean the association of member companies, under separate agreement with BakerRisk, formed to facilitate the development of the Software.
   2. “Confidential and Proprietary Information" shall mean all information belonging to BakerRisk or third parties that may be contained in the Software or identified in the Documentation that is disclosed or made available to Customer as a result of this Software License Agreement. Confidential and Proprietary Information does not include any of the following: (a) information which was available to the public by publication or otherwise was part of the public domain at the time of disclosure under this Software License Agreement; (b) information which legally becomes available to the public by publication or otherwise becomes a part of the public domain through no fault of Customer after such disclosure; (c) information which is or has been disclosed to any third party without the same or substantially the same obligations of limited Use and restricted disclosure as required by this Software License Agreement; (d) information which was already known prior to such disclosure; (e) information which is received from a third party without the same or substantially the same obligations of limited Use and restricted disclosure as required by this Software License Agreement.
   3. "Customer" shall mean the ultimate consumer of the Software and Party to this Software License Agreement.
   4. "Software License Agreement" shall mean, collectively, the terms and conditions set forth in the entirety of this document.
   5. “DIPPR Database” shall mean DIPPR DATABASE which is the evaluated collection of physical property data, correlation coefficients, notes, references, and recommended property values that have been compiled together under the DIPPR^® 801 projects in Microsoft Access format and included in SafeSite_3G^© Software.
   6. “Documentation” shall mean all documentation regarding and accompanying the Software including but not limited to, manuals, operating instructions and system design specifications
   7. "Intellectual Property" shall mean any and all proprietary information owned by either Party, including but not limited to, ideas, formulas, algorithms, concepts, inventions, know-how, manuals, and specifications that may be covered by the laws of patent, trademark, copyright, design patent or industrial design, trade dress, trade secrets, semiconductor chip or mask work and any other protectable information (whether statutory or common law in nature), and any applications, registrations, licenses, franchises, and agreements related thereto.
   8. "Operate" shall mean to install, store, load, and execute the Software at a specified location. Operation, as used in this Software License Agreement, shall not include copying, modifying, distributing, or reverse-engineering the Software.
   9. "Party" shall mean either BakerRisk or Customer.
   10. "Software" shall mean the version of the BakerRisk computer program that is the subject of this Software License Agreement.
   11. "Term" shall mean the duration of this Software License Agreement.
2. Grant of License
   1. License Grant. BakerRisk hereby grants to Customer a nonexclusive, royalty-free license to operate one (1) copy of the Software in accordance with the terms and conditions of this Software License Agreement.
      1. By registering and operating the Software, Customer agrees to the terms and conditions set forth in this Software License Agreement.
   2. Intellectual Property Rights. The Parties agree that all Intellectual Property rights in and to the Software, shall remain the sole and exclusive property of BakerRisk.
   3. License Operation. This Software License Agreement authorizes Customer to Operate the Software solely in accordance with the terms and conditions set forth herein. Customer shall not sell, lease, assign, transfer, sublicense, disseminate, modify, translate, duplicate, reproduce or copy the Software (or permit any of the foregoing) or disclose the Software or any information pertaining thereto to any other party without the prior written consent of BakerRisk. Customer may not reverse assemble or decompile or otherwise attempt to create the source code from the Software.
3. Confidential & Proprietary Information
   1. Confidential and Proprietary Information Disclosure. Customer hereby acknowledges that the Software contains Confidential and Proprietary Information belonging exclusively to BakerRisk, or other third parties that may be identified in the Documentation. Customer shall retain in confidence any Confidential and Proprietary Information obtained in connection with this Software License Agreement. Customer hereby agrees that during the Term and at all times thereafter, that it shall not use, commercialize, or disclose BakerRisk’s Confidential and Proprietary Information to any person or entity except as otherwise provided for herein.
   2. Distribution Prohibited. The Software is deemed Confidential and Proprietary Information and distribution thereof is strictly prohibited, except as set forth in this Software License Agreement.
   3. No Alteration of Confidential and Proprietary Information. Customer shall not alter or remove any proprietary, copyright, trademark or trade secret legend. Customer shall use at least the same degree of care in safeguarding the Confidential and Proprietary Information as it uses in safeguarding its own confidential information, but in no event shall less than due diligence and care is exercised. Upon termination of this Software License Agreement, Customer shall return or destroy all Confidential & Proprietary Information in its possession or control and cease all further use thereof.
   4. Customer Acknowledgement. Customer acknowledges that violations of the provisions of this Section would cause irreparable harm to BakerRisk not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief shall be available without necessity of posting bond to prevent any actual or threatened violations of such provisions.
4. Limitation of Liability, Warranty, and Indemnity
   1. Disclaimer of Warranties. THIS SOFTWARE IS PROVIDED “AS IS.” BAKERRISK MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR NON-INFRINGEMENT. BAKERRISK MAKES NO WARRANTY THAT THE OPERATION OF THE APPLICATION SHALL BE UNINTERRUPTED, FREE OF VIRUSES, WORMS, TROJAN HORSES, OR ANY OTHER MALICIOUS CODE, ERROR FREE, OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT.
   2.  BAKERRISK MAKES NO WARRANTY OF CONSISTENCY IN RESULTS WHEN IMPROVEMENTS TO SOFTWARE ARE MADE AND IS NOT RESPONSIBLE FOR THE CORRECTION OF PAST SOFTWARE DEFICIENCIES OR MAINTENANCE OF PRIOR SOFTWARE VERSIONS. BAKERRISK FURTHER DISCLAIMS ANY WARRANTY THAT THE RESULTS OBTAINED THROUGH THE USE OF THE SOFTWARE WILL MEET CUSTOMER’S NEEDS. The above disclaimer of warranties shall not apply to members of the Coalition, which is governed by a separate agreement. For further details, contact BakerRisk.
   3. Limited Liability. IN NO EVENT SHALL BAKERRISK BE LIABLE FOR ANY DAMAGES ARISING FROM OR RELATED TO FAILURE OR INTERRUPTION OF THE SOFTWARE, OR FOR INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF PROFIT, LOSS OF DATA, BUSINESS INTERRUPTION, PERSONAL INJURY OR DEATH, LOSS OF USE OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE LICENSE OR USE OF THE SOFTWARE. IN NO EVENT SHALL BAKERRISK BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, INCLUDING NEGLIGENCE, AND WHETHER OR NOT BAKERRISK HAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING IN ANY WAY OUT OF THIS SOFTWARE LICENSE AGREEMENT OR OUT OF USE OF THE SOFTWARE. IN NO EVENT SHALL BAKERRISK’S LIABILITY FOR ANY CLAIM OF ANY KIND FOR ANY LOSS OR DAMAGE RESULTING FROM, ARISING OUT OF, OR CONNECTED WITH THIS SOFTWARE LICENSE AGREEMENT, OR FROM THE PERFORMANCE OR BREACH THEREOF, EXCEED THE LICENSE FEE.
   4. Indemnity by Customer. Customer shall indemnify and hold BakerRisk harmless from and against any liability, including but not limited to loss of or damage to the property and injury or death of the personnel of Customer, its affiliates and third parties arising out of or in connection with the use of any Confidential or Proprietary Information or Software by Customer.
5. Term and Termination
   1. Term. The Term of this Software License Agreement is three (3), six (6), or twelve (12) months as selected in the license purchase process, so long as the Software is properly Operated, and subject to the termination provisions set forth below. The term can be extended through a request for renewal in three (3) month increments with a maximum of twelve (12) months in each renewal period.
   2. Right to Terminate. Customer may terminate this license at any time. BakerRisk may terminate this license if Customer fails to comply with the terms and conditions of this Software License Agreement, including failure to make payments when due.
   3. Upon Termination. Upon termination, Customer agrees to immediately cease Operation of the Software. Customer further agrees to destroy the Software and all related Documentation, together with all copies of the Software in any form. Customer shall provide to BakerRisk with written confirmation that such destruction has taken place and that Customer retains no Software or Documentation.
   4. Sections Surviving Termination. It is understood and agreed upon by Customer and BakerRisk that Sections 3 and 4 shall survive termination of this Software License Agreement.
6. Relationship of the Parties
   1. No Agency. Nothing contained in this Software License Agreement shall be construed as establishing the relationship of master and servant, principal and agent, partnership, or a joint venture between BakerRisk and Customer.
   2. Independent Contractor. BakerRisk is and shall perform this Software License Agreement and all services, activities and operations thereunder and/or directly or indirectly in connection herewith as an independent contractor. As an independent contractor, BakerRisk is and shall at all times have and maintain complete control over and responsibility for all of its employees, agents, services, activities and operations. Neither BakerRisk nor anyone employed or utilized by BakerRisk shall represent, act, purport to act, or be deemed to be the agent, representative, employee or servant of any Customer.
7. General
   1. Force Majeure. A delay in or failure of either BakerRisk or Customer to perform its obligations hereunder as described shall not constitute default under this Software License Agreement nor give rise to any claim for damage if and to the extent such delay or failure is caused by occurrences beyond the control of the party affected, including but not limited to: equipment, electricity, or telephone failure; acts of God; expropriation or confiscation of facilities or compliance with any order or request of any governmental authority or personnel purporting to act therefore which affects to a degree not presently existing the supply, availability or use of material or labor; acts of war or terrorism; pandemics; public disorders, rebellion, or sabotage; floods; riots; strikes, whether direct or indirect; or any cases within the control of the Party affected and which, by the exercise of reasonable diligence, said Party is unable to prevent, mitigate, or remove.
   2. Choice of Law. The Parties hereto agree that it is their intention and they hereby covenant that this Software License Agreement and performance hereunder and all suits and special proceedings hereunder be construed in accordance with and under and pursuant to the laws of the State of Texas and that in any action, special proceeding, or other proceeding that may by brought arising out of, in connection with, or by reason of this Software License Agreement, the laws of the State of Texas shall be applicable and shall govern to the exclusion of the laws of any other forum, without regard to the jurisdiction in which any action or special proceeding may be instituted. Further, it is stipulated and agreed by all parties that jurisdiction over any action, special proceeding or other proceeding arising out of, in connection with, or by reason of this Software License Agreement shall reside with a court of competent jurisdiction in Texas.
   3. Assignment. Customer may not assign this Software License Agreement without the prior consent in writing from BakerRisk. Such consent shall not be unreasonably withheld. The provisions hereof shall extend to and be binding on the respective successors and assigns of both BakerRisk and Customer.
   4. Modifications. No changes or modifications to any provision of this Software License Agreement shall be effective unless made in writing signed by all Parties.
   5. Entire Agreement. This Software License Agreement constitutes the entire understanding between BakerRisk and Customer, and supersedes and cancels all prior negotiations, representations, understandings and agreements, whether oral or written, with regard to it.
   6. Waiver. Failure to enforce any term of this Software License Agreement at any time for any period shall not be construed as a waiver of such rights. No waiver shall be valid against any Party hereto unless made in writing and signed by the Party against whom enforcement of such waiver is sought and then only to the extent expressly specified therein.
   7. Severability. In the event any portions of this Software License Agreement shall subsequently be deemed to be legally invalid or unenforceable by an authorized judicial body, this Software License Agreement shall be ineffective only to the extent of such invalidity or unenforceability and such invalidity or unenforceability shall not affect the remaining portions of this Software License Agreement. BakerRisk and Customer agree to amend these articles so as to remedy any such invalidity or unenforceability or to delete such portions as may be deemed appropriate.
   8. Headings. Section headings contained in this Software License Agreement are inserted for convenience and reference only and shall not in any way effect the interpretation of any of the provisions herein.
   9. DIPPR Database included with SafeSite_3G^© Software. The term for the DIPPR Database license is one year. If you do not maintain the SafeSite_3G^© software license through BakerRisk, then your organization is responsible for continuing and maintaining this portion of the Software License Agreement. Further distribution of the DIPPR Database from an end user shall be strictly prohibited. All on-line or World Wide Web distribution or access to the DIPPR Database outside the end user’s own organization is restricted. Upon expiration of or termination of the end user license, the end user shall cease all use of the DIPPR Database.

      1. THE AICHE WILL USE REASONABLE EFFORTS DESIGNED TO VERIFY THAT THE DATA CONTAINED IN THE DATABASE HAS BEEN SELECTED ON THE BASIS OF SOUND SCIENTIFIC JUDGMENT. HOWEVER, AICHE MAKES NO WARRANTIES TO THAT EFFECT. THE DATABASE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. AICHE DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. AICHE SHALL NOT BE LIABLE FOR ANY DAMAGES, LOSS OF PROPERTY OR PROFITS, OR CONSEQUENTIAL, EXEMPLARY OR SPECIAL DAMAGES THAT MAY RESULT FROM ERRORS OR OMISSIONS IN THE DATABASE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

         AICHE DOES NOT WARRANT THAT THE DATABASE WILL SATISFY THE USER’S REQUIREMENTS NOR THAT THE DATABASE IS WITHOUT DEFECT OR ERROR NOR THAT THE OPERATION OF THE DATABASE WILL BE UNINTERRUPTED. THE USER IS SOLELY RESPONSIBLE FOR DETERMINING THE SUITABILITY OF THE DATABASE AND FOR TESTING AND EVALUATING IT BEFORE ANY USE OF OR RELIANCE ON IT. THE USER ASSUMES, WITHOUT LIMITATION, ALL RISKS AND LIABILITIES ASSOCIATED WITH THE USE OF THE DATA INCLUDED IN THE DATABASE.