• All Sales Tax, Use Tax, Import/Export Tax and Duties Are Purchaser’s Responsibility.
• This Product Is Provided As-Is With No Warranty.

This Virtuoso™ End User License Agreement (the “Agreement”) contains the terms and conditions upon which Virtuoso Software, LLC, an Oklahoma limited liability company (“Virtuoso”), grants to you (“Licensee”) a limited license to the Virtuoso™ embedded system virtual device framework and related software. Please read this Agreement carefully. By clicking “I AGREE”, obtaining a Virtuoso™ activation key, downloading, installing or otherwise using the Software as defined herein, you acknowledge that you have read and accept the terms and conditions of this Agreement in its entirety.

If you are entering into this Agreement within the scope of your employment or through an engagement as an independent contractor, the term “Licensee” includes your employer or principal, as applicable, and you warrant and represent to Virtuoso that you are authorized to enter into this Agreement on your employer’s or principal’s behalf.

 1.  DEFINITIONS

a. Confidential Information – The Software and all of the software code (including, but not limited to, any third party software licensed with the Software), Documentation, Library and any Trade Secret, concepts, ideas, improvements, processes, plans, designs, specifications, architecture, database tables and structures, data record layouts, prototypes, models, methods, processes, algorithms, content, data bases, and all other Virtuoso information, whether patentable or not, that is provided, developed, conceived or in any way disclosed by Virtuoso to Licensee.

b. Designated User –An individual, employee, agent, or contractor of Licensee who has been trained in the use of the Software and operates it with the permission of Licensee.

c. Documentation –“Documentation” means collectively: (i) all of the written, printed, electronic, or other format materials published or otherwise made available by Virtuoso to Licensee that relate to the technical aspects of the Software including its functional, operational, and/or performance capabilities; and, (ii) all user, operator, system administration, technical, support, and other manuals and all other written, printed, electronic, or other format materials published or otherwise made available by Virtuoso that describe the functional, operational, and/ or performance capabilities of the Software. Documentation shall not include source code or executable(s). Virtuoso provides standard online Documentation with its software products. License has the right to print online Documentation as needed for Licensee’s internal purposes.

d. Effective Date –The Effective Date shall be the date of Licensee’s activation of the Software license. It is understood that acceptance of the terms of this Agreement is required before the Software may be downloaded, purchased, installed, or activated.

e.Library –The Library consists of the content and component library, including example projects which may be accessed by Licensee via the Site. It is understood that the Virtuoso™ framework license may include content, components, and example projects, while other content, component and example projects offered by the Virtuoso™ content marketplace may require an additional, separately purchased license. It is also understood that the Virtuoso™ framework license is needed as a prerequisite in order to use separately purchased component libraries and content.

f.Permitted Purpose –The Virtuoso™ Educational License shall only be used by a Designated User for non-commercial, educational purposes that clearly have no association with the development of a commercial application, including research that may lead to a commercial application. The Virtuoso™ Professional License maybe used by a Designated User for commercial purposes. It is understood that a contractor or consultant may utilize the Software in connection with providing professional services for its client or customer.

g.Site –Virtuoso’s web site (http://www.virtuososoftware.com/).

h.Software –The Virtuoso™ framework and associated media, modules, executables, object code, binary files, databases, printed and/or online Documentation, the Library and other materials that are licensed to Licensee. Software also includes other computer code which may be developed by Virtuoso for use by Licensee.

i.Virtuoso Data –Data that is collected by Licensee through the use of the Software and which is transmitted to and stored by Virtuoso.

j.Virtuoso’s Intellectual Property –Proprietary information and/or data including, but not limited to, Trade Secrets, copyrights, trademarks, inventions (whether patentable or not), concepts, ideas, methods, techniques, formulas, algorithms, logic designs, screen displays, schematics, source and object code, computer programs, and example projects.

k.Term –The initial term for the use of the Software under this Agreement shall begin on the date of license activation and shall end when the specified duration after activation expires. The Parties can extend the initial term of this Agreement by mutual written agreement.

l.Territory –Worldwide.

l.Trade Secret –Trade Secret shall mean, without limitation, any scientific or technical data, information, design, process, procedure, formula, or improvement that is commercially valuable to Virtuoso and its distributors (including Embeddetech, Inc.) and not generally known in the industry.

2. LICENSE

a. Subject to the terms of this Agreement and timely payment of the required license fees, Virtuoso hereby grants to Licensee, and Licensee accepts, a nonexclusive and nontransferable right and license to use the Software for its internal purposes in the Territory, without a right to sublicense, during the Term for the Permitted Purpose, according to the terms set out herein. All other uses are prohibited.

b. This license grant extends only to use of the Software by a single Designated User on no more than one computer (whether virtual or physical). In the event the Designated User ceases use of the licensed computer, upon notice to Virtuoso, the license may be deactivated as to that computer and reactivated on the new one. If more than one Designated User wishes to utilize the Software, the purchase of additional licenses will be required.

c. The Software may include third party software components. The third party software terms will govern Licensee’s use of the third party software, and if there is inconsistency, those terms will take precedence over the terms of this Agreement for the third party software. Licensee agrees that the owners of the Third Party Software are intended third party beneficiaries to this Agreement in relation to Licensee’s use of third party software.

3. ACCOUNT AND PASSWORD

a. Pursuant to this Agreement, Licensee will be given at least one password protected account that provides access to the Software and additional functionality that is accessible through the Site. Licensee is responsible for maintaining the confidentiality of its account and login password. The account may not be transferred to a third party without prior written consent of Virtuoso. Licensee agrees to make every reasonable effort to safeguard its account and password against unauthorized use. Virtuoso reserves the right to refuse service, terminate accounts, remove or edit content, or cancel logins in its sole and absolute discretion.

b. Licensee agrees to accept full responsibility for all activities that occur under Licensee’s account. Licensee is solely responsible for maintaining the confidentiality of its account password and for restricting access to its computer, and Licensee agrees to accept responsibility for all activities that occur under its account. If Licensee has reason to believe that its account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of an account ID or password), Licensee will immediately notify Virtuoso. Licensee may be liable for the losses incurred by Licensee or others due to any unauthorized use of its account.

4. NEW VERSIONS AND SUPPORT

During the Term of this Agreement, Licensee may, at Virtuoso’s election, be allowed to access future versions of the Software, Library and/or Site, but Virtuoso has no obligation to make new versions available or to continue to make the current versions available in the future. Any and all such versions which may be made available by Virtuoso are subject to the terms and conditions of this Agreement. Virtuoso also has no obligation under this Agreement to provide ongoing support of any kind for the Software, Library and/or Site.

5. RESTRICTIONS

a. Licensee agrees that it will not assign, sublicense, transfer, pledge, lease, rent, loan, or share its rights under this Agreement.

b. Licensee agrees that it will not use the Software for the direct benefit of, or for purpose of rendering services to, any third party business entity or organization except for a Permitted Purpose.

c. Licensee shall not (i) modify, translate, reverse engineer, disassemble or decompile the Software; (ii) create or attempt to create any derivative works of the Software or Documentation; or, (iii) permit or assist others in performing any of the foregoing.

d. Licensee agrees that the rights granted to Licensee under this Agreement are voided in the case of Licensee’s violation of the Agreement.

e. Licensee shall limit access to and use of the Software to a single Designated User who has been selected by Licensee. Use by any other person is not permitted without separate authorization from Virtuoso.

f. Apart from installation of the Software pursuant to the license granted by this Agreement, Licensee is prohibited from making copies of or distributing the Software, except that it is permitted to make a copy of any locally executed Software as part of a regularly scheduled incremental or full backup procedure. Licensee may make copies of the Documentation as is reasonably necessary to fulfill the aims of this Agreement.

g. Licensee may not use the Software, Library or Site in any manner which could damage, disable, overburden, or impair the Site or interfere with any other party’s use and enjoyment of the Site.

h. Licensee may not utilize Virtuoso’s Intellectual Property in any manner inconsistent with this Agreement, including but not limited to not using or displaying the Virtuoso or Virtuoso trademarks in any manner without Virtuoso’s prior written consent.

6. PRIVACY POLICY AND PUBLICITY

a. When the login to the Site is created as a prerequisite to using the Software and the Site, certain personal information may be required which will be stored and retained by Virtuoso. Virtuoso uses the information provided for purposes such as responding to requests, improving the Software, helping Virtuoso serve its customers better, and communicating with Licensee.

b. Virtuoso will not share personal information obtained from Licensee with any third party without Licensee’s prior permission, except in the event of a sale, merger or acquisition of the business, or in response to an order from a court of competent jurisdiction or in similar circumstances.

c. Notwithstanding the above, Virtuoso shall be allowed to post or otherwise publish Licensee’s name, logo, and general information regarding Licensee’s use of Virtuoso for publicity and promotional purposes unless Licensee notifies Virtuoso in writing that it does not wish for the information to be made public.

7. TERM

a. Subject to receipt by Virtuoso of full payment of the required amounts, this Agreement will commence upon the Effective Date and shall continue for the Term as specified in the license sale unless earlier terminated.

b. This Agreement can be renewed for additional periods by mutual consent of the parties as evidenced by written notice (to include electronic communication of same), and payment by Licensee of the current required fees.

8. WAIVER OF CLASS ACTION

To the fullest extent allowed by law, Licensee waives any rights to trial by jury and agrees not to bring or participate in a class action, private attorney general action or any other similar litigation.

9. GOVERNING LAW AND DISPUTE RESOLUTION

This agreement will be governed by and construed in accordance with the laws of the State of Oklahoma, U.S.A. without giving effect to any conflict of laws and provisions that would require the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed and shall not apply to this Agreement.

Licensee agrees that: (1) any claim, dispute, or controversy Licensee may have against Virtuoso arising out of, relating to, or connected in any way with this Agreement, Software, Library or Site, shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA (“Rules and Procedures”); (2) the arbitration shall be held in Tulsa, Oklahoma or at such other location as may be mutually agreed upon by Licensee and Virtuoso; (3) the arbitrator shall apply Oklahoma law consistent with the

Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (4) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only the Licensee’s individual claims; and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (5) in the event that the Licensee is able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Virtuoso may elect to pay as much of the Licensee’s filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (6) with the exception of subpart (4) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (4) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, Licensee shall not be entitled to arbitrate its dispute. For more information on AAA and its Rules and Procedures, Licensee may visit the AAA website.

To the extent that the arbitration provisions of this Agreement do not apply, this Agreement will be subject to the exclusive jurisdiction of the state and federal courts serving Tulsa County, Oklahoma, U.S.A., and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts, except that nothing herein shall in any way prohibit or limit Virtuoso from instituting an action in any court of competent jurisdiction to obtain injunctive relief or to protect or enforce its intellectual property rights.

10. INDEMNIFICATION/RELEASE

Licensee agree to indemnify and hold harmless Virtuoso, and its parent, subsidiaries, affiliates, suppliers, distributors, licensors and partners, and the officers, directors, employees, agents and representatives of any of them from any and all claims, losses, obligations, damages, liabilities, costs or debt and expenses (including attorney’s fees) arising out of (i) Licensee’s use or misuse of the Software, Library or Site or any other Virtuoso services; (ii) Licensee’s use of virtualized components or emulating embedded hardware; (iii) Licensee’s violation of these Terms; (iv) Licensee’s violation of the rights of any other person or entity, including claims that any of Licensee’s submissions infringes or violates any third party intellectual property rights; and (v) Licensee’s breach of the representations, warranties, and covenants herein. Virtuoso reserves the right, at Licensee’s expense, to assume the exclusive defense and control of any matter for which Licensee is required to indemnify Virtuoso and Licensee agrees to cooperate with Virtuoso’s defense of such claims. Licensee agrees not to settle any matter without the prior written consent of Virtuoso. Each party will use reasonable efforts to notify the other of any such claim, action or proceeding upon becoming aware of it.

11. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
Licensee acknowledges that there are risks inherent in the use of the Software, Library, Site, Documentation, any associated hardware and internet connectivity that may result in interruptions or errors, loss of privacy, confidentiality, information or property, as well as other losses, damages or adverse occurrences, regardless of the measures taken to avoid such occurrences. Further, Licensee acknowledges that virtual applications or components developed or tested utilizing the Software, Library or Site are not guaranteed or warranted to operate in the same manner as when run on a different platform.

The Software, Library, Site, Documentation, and any other materials, services, or support provided to Licensee by Virtuoso pursuant to this Agreement are provided on an “as-is” basis and with all faults or errors. Virtuoso disclaims all warranties of any type or kind, whether express or implied. Licensee acknowledges that occasional internet connection is required for license verification, and that occasional maintenance-related or unforeseen outages of license verification may occur.

VIRTUOSO EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND INFRINGEMENT PURSUANT TO THE UNIFORM COMMERCIAL CODE AND ANY OTHER APPLICABLE LAW.

In no event will Virtuoso be liable for any losses or damages incurred by Licensee, whether direct, indirect, incidental, special, exemplary or consequential, including lost or anticipated profits, savings, interruption to business, loss of business opportunities, loss of business information, the cost of recovering such lost information, the cost of substitute intellectual property or any other pecuniary loss arising from the use of, or the inability to use, the Software, Library or Site regardless of whether Licensee has advised Virtuoso of the possibility of such damages. Virtuoso’s aggregate liability in respect of any and all claims will be limited to the license fees paid by Licensee to Virtuoso pursuant to this Agreement. The foregoing limitations apply regardless of the cause or circumstances giving rise to such loss, damage or liability, even if such loss, damage or liability is based on negligence or other torts or breach of contract, including fundamental breach or breach of a fundamental term.

12. FORCE MAJEURE

Virtuoso shall not be responsible for any delays, failures or outages arising out of causes beyond its reasonable control. Such causes may include, but are not restricted to, acts of God or of the public enemy, fires, floods, epidemics, riots, quarantine restrictions, strikes, earthquakes, electrical outages, computer or communications failures, severe weather, and acts or omissions of subcontractors or third parties.

13. SEVERABILITY

If, after the date hereof, any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term of this Agreement, such provision shall be fully severable. In lieu thereof, there shall be added a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.