IONTRA INC (“IONTRA”) IS WILLING TO LICENSE THE SOFTWARE TO YOU (“YOU” OR “YOUR”) ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT (“SOFTWARE LICENSE AGREEMENT” OR “AGREEMENT”). THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND IONTRA. BY INDICATING ASSENT ELECTRONICALLY, OR BY DOWNLOADING, INSTALLING AND/OR USING THE SOFTWARE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT.

NOTE THAT DISPUTES ABOUT THIS SOFTWARE LICENSE AGREEMENT OR RELATING TO THIS SOFTWARE LICENSE AGREEMENT GENERALLY MUST BE RESOLVED BY BINDING ARBITRATION.  See Section 12 below for more details.

1.              PURPOSE

1.1           Overview. You would like to use the SOFTWARE for the purpose of: (i) evaluating IONTRA’s battery charging optimization technology (“IONTRA TECHNOLOGY”) for use in your product and/or (ii) integrating IONTRA Technology into your product. IONTRA is willing to grant You a limited license to use the SOFTWARE in conjunction with the evaluation kit for Iontra Technology (“Eval Kit”).

2.              DEFINITIONS

2.1           “Customer Product” means a non-IONTRA branded or IONTRA branded hardware device that interfaces, communicates, or otherwise interoperates with or controls an IONTRA Product.

2.2           “Documentation” means any technical or other specifications or documentation that IONTRA may provide to You for use in connection with the Iontra Technology or any aspect thereof.

2.3           “Intellectual Property Rights” means any and all right, title, and interest throughout the world in and to any and all trade secrets, patents, rights to patent, copyrights, service marks, trademarks, know-how, or other intellectual property rights, as well as any and all moral rights, rights of privacy, publicity, and similar rights of any type under the laws or regulations of any governmental, regulatory, or judicial authority.

2.4           “IONTRA Product” means (i) any IONTRA Eval Kit hardware and (ii) the SOFTWARE enabling the evaluation, integration into a product and use of the Iontra Technology.

2.5           “OSS” means open source software subject to licenses (e.g., GNU General Public License or GNU Lesser/Library GPL) that require, as a condition of use, copying, modification, or distribution, that such software (including modifications or derivate works derived therefrom) be disclosed or distributed in source code form, to be licensed for the purpose of making derivative works, or to be redistributed free of charge.

2.6           “SOFTWARE” means the Software that is made available to You by IONTRA for the purposes of operating the IONTRA Eval Kit, enabling and performing IONTRA Technology and integrating IONTRA Technology into a Customer Product.

2.7           “Update” means a minor modification of existing software to address bug and error problems by making improvements to the current version of the software.

2.8           “Upgrade” means a significant modification of existing software to include new features, functionalities and releases, creating a new version of the software.

3.              ACCEPTANCE OF THIS SOFTWARE LICENSE AGREEMENT

3.1           Acceptance.  In order to use the SOFTWARE, You must first agree to this SOFTWARE License Agreement.  If You do not or cannot agree to this SOFTWARE License Agreement, You are not permitted to use the SOFTWARE, and in that case, do not download or use the SOFTWARE.

4.              LICENSE; USE RESTRICTIONS

4.1           Internal Use License.  Subject to the terms and conditions of this SOFTWARE License Agreement, and provided that You are in compliance with this SOFTWARE License Agreement, IONTRA grants to You a limited, royalty-free, revocable, non-exclusive, non-transferable and non-sublicensable license to access, download, install and use the SOFTWARE for the sole purpose of Your internal development and testing of IONTRA Product.

4.2           License, Not Sale.  The SOFTWARE is licensed, not sold, to You by IONTRA for use only as expressly permitted in this SOFTWARE License Agreement. You acknowledge and agree that IONTRA and its licensors, if any, retain ownership of the SOFTWARE itself and reserve all rights not expressly granted to You.

4.3           Retained Rights.  Except as otherwise expressly permitted under this SOFTWARE License Agreement, You shall not have any rights to use the SOFTWARE, in whole or in part, for any other use or purpose whatsoever and any right not expressly or specifically provided to You under this SOFTWARE License Agreement shall be reserved by IONTRA. Except for the limited license(s) granted herein, all right, title and interest in and to the SOFTWARE (or any portion thereof), and any and all Intellectual Property Rights in and to the same, are retained by IONTRA and shall be and remain the exclusive property of IONTRA and its licensors.

4.4           Ownership

(a)            SOFTWARE Ownership.  You acknowledge and agree that IONTRA and its licensors own all legal right, title and interest in and to the SOFTWARE, including any and all Intellectual Property Rights that subsist in the SOFTWARE.  You agree to cooperate with IONTRA to maintain IONTRA’s ownership of the SOFTWARE, and, to the extent that You become aware of any claims relating to the SOFTWARE, You agree to use reasonable efforts to promptly provide notice of any such claims to IONTRA.

4.5           Restrictions on Use of the SOFTWARE.  Except to the extent required to create and utilize Your Applications, and as a condition to using the SOFTWARE, you shall not:

(a)            Rent, lease, lend, upload to or host on any website or server, sell, redistribute, or sublicense the SOFTWARE, in whole or in part.

(b)            Copy, modify, adapt, redistribute, decompile, attempt to derive the source code of, decrypt, disassemble, or reverse engineer the SOFTWARE or create derivative works of the SOFTWARE or any part of the SOFTWARE (except as and only to the extent any foregoing restriction in this 4.6(b) is prohibited by applicable law or to the extent as may be permitted by licensing terms governing use of open-sourced components or sample code included with the SOFTWARE).

(c)             Combine any part of the SOFTWARE with other software or distribute any software or device incorporating a part of the SOFTWARE.

(d)            Use the SOFTWARE in any manner or for any purpose that is not expressly permitted pursuant to (i) this SOFTWARE License Agreement, or (ii) any applicable law, regulation, or generally accepted practices or guidelines in the relevant jurisdictions.

(e)            Access, download, install, use, export or re-export the SOFTWARE in violation of export laws, regulations or restrictions, or in violation of any other applicable laws, regulations or restrictions.

(f)             Remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the SOFTWARE.

(g)            Authorize or assist any third party to do any of the things prohibited in this Section 4.6 or elsewhere in this Agreement.

IONTRA shall have the right to implement technological measures intended to ensure Your compliance with these restrictions and to otherwise prevent against piracy of the SOFTWARE. If You breach any of the foregoing restrictions, You may be subject to prosecution and damages.

4.6           Open Source Software Restriction.  Use, reproduction and distribution of components of the SOFTWARE licensed under an OSS license are governed solely by the terms of that OSS license and not this SOFTWARE License Agreement.

4.7           IONTRA Trademarks.  Nothing in this SOFTWARE License Agreement gives You a right to use any of IONTRA’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.  Such rights may be provided in a separate agreement with IONTRA.

5.              USE OF THE SOFTWARE BY YOU

5.1           Your Sole Responsibility.  You agree that You are solely responsible for (and that IONTRA has no responsibility to You or to any third party for) any breach of Your obligations under this SOFTWARE License Agreement.

5.2           Beta Disclaimer.  The SOFTWARE is in development, and Your testing and feedback are an important part of the development process. By using the SOFTWARE, You acknowledge that implementation of some features are still under development and that You should consider the SOFTWARE to be at a Beta release level.  IONTRA shall not be responsible for any costs, expenses or other liabilities You may incur as a result of Your use of this beta SOFTWARE, including but not limited to any damage to any equipment, or any damage, loss, or corruption of any software, information or data.  You expressly acknowledge and agree that any research or development that You perform with respect to beta versions of the SOFTWARE or related services is done entirely at Your own risk.

6.              UPDATES AND SUPPORT

6.1           Updates.  IONTRA may extend, enhance, or otherwise modify the SOFTWARE (or any part thereof) provided hereunder at any time without notice, but IONTRA shall not be obligated to provide You with any Updates to the SOFTWARE. If Updates are made available by IONTRA, the terms of this SOFTWARE License Agreement will govern such Updates, unless the Update is accompanied by a separate license in which case the terms of that license will govern.  Your use of such Update is conditioned on Your acceptance of such separate license agreement.

6.2           No Entitlement.  This SOFTWARE License Agreement does not entitle You to receive support, telephone assistance or enhancements or Updates or Upgrades to the SOFTWARE from IONTRA.

7.              TERMINATING THIS SOFTWARE LICENSE AGREEMENT

7.1           Term.  This SOFTWARE License Agreement will continue to apply until terminated by either You or IONTRA as set out below.

7.2           Your Termination Right.  If You want to terminate this SOFTWARE License Agreement, You shall have the right to do so by ceasing Your use of the SOFTWARE.

7.3           IONTRA’s Termination Right.  IONTRA shall have the right to terminate this SOFTWARE License Agreement at any time for any reason. This SOFTWARE License Agreement shall automatically terminate if (a) You breach this SOFTWARE License Agreement in any manner; (b) IONTRA publicly posts a written notice of termination on its web site; (c) IONTRA sends a written notice of termination to You; or (d) IONTRA no longer provides the SOFTWARE or certain parts of the SOFTWARE to users in the country in from which You access the SOFTWARE.

7.4           Effect of Termination.  Upon termination of this SOFTWARE License Agreement, You and each Authorized User shall (a) automatically cease to have any rights with respect to the SOFTWARE, and (b) immediately cease all use of the SOFTWARE and destroy all copies, full or partial, thereof that are in Your possession or control. All provisions of this SOFTWARE License Agreement, except for the grant of license in Section 4.1 above, shall survive the termination of this SOFTWARE License Agreement.

8.              CONFIDENTIALITY.

8.1           IONTRA Confidential Information.  In the course of Your activities under this SOFTWARE License Agreement, IONTRA may disclose to You information or data pertaining to any and all aspects of the IONTRA Technology that IONTRA desires to protect against unauthorized use or further disclosure. For purposes of this SOFTWARE License Agreement, “IONTRA Confidential Information” shall mean: (i) any information in written, other tangible or electronic form which is labeled by IONTRA as “Confidential”, “Proprietary” or with a legend of similar import; (ii) the SOFTWARE, in any form (including related Documentation) and any IONTRA Product, IONTRA Technology, or any derivative works thereof, whether or not labeled in accordance with the preceding, or any aspect thereof; (iii) any and all information relating to IONTRA’s business, financial information, customers, schedules, projects, programs, products and services not generally known to the public; and (iv) information orally disclosed You or received by You through observation and identified by IONTRA as confidential at the time of such disclosure.  Notwithstanding the foregoing, IONTRA Confidential Information will not include: (i) information that is generally and legitimately available to the public through no fault or breach of Yours, (ii) information that is generally made available to the public by IONTRA, (iii) information that is independently developed by You without the use of or reference to any IONTRA Confidential Information, (iv) information that was rightfully obtained from a third party who had the right to transfer or disclose it to You without limitation, or (v) any OSS included in the SOFTWARE or IONTRA Software and accompanied by licensing terms that do not impose confidentiality obligations on the use or disclosure of such OSS.  However, unless You prove that certain material or information falls within one of the express exclusions to the definition of IONTRA Confidential Information set forth above, all material or information relating to IONTRA and its business will be presumed to be confidential and shall be regarded by and treated by You as IONTRA Confidential Information.

8.2           Non-Disclosure and Non-Use Obligations.  You shall exercise the same degree of care and protection with respect to the IONTRA Confidential Information that You exercises with respect to Your own confidential information and, in any event, not less than reasonable care, and shall not directly or indirectly disclose, copy, distribute, republish, or allow any third-party to have access to any IONTRA Confidential Information other than for the purposes that are expressly permitted in this SOFTWARE License Agreement.  You may disclose IONTRA Confidential Information to the extent required by law, provided that You take reasonable steps to notify IONTRA of such requirement before disclosing the IONTRA Confidential Information and You cooperate with IONTRA in obtaining protective treatment of the IONTRA Confidential Information.

8.3           Injunctive Relief.  You acknowledge that damages for improper disclosure of IONTRA Confidential Information may be irreparable; therefore, IONTRA is entitled to seek equitable relief, including injunction  and preliminary injunction, in addition to all other remedies.

9.              INDEMNIFICATION.

9.1           Your Indemnification Obligation.  Notwithstanding any other term of this SOFTWARE License Agreement or any act or failure to act by IONTRA, to the maximum extent permitted by law, You agree to and shall indemnify, defend, and hold harmless IONTRA and its officers, directors, employees, agents, information providers, representatives, attorneys, partners, successors, and assigns (“IONTRA Indemnified Party”) from and against any and all claims, actions, suits, proceedings, losses, liabilities, damages, costs and expenses (including attorneys’ fees) arising out of or related to (a) Your use of the SOFTWARE, IONTRA Product, and any results or consequences thereof; (b) any non-compliance or breach by You of this SOFTWARE License Agreement.

10.           DISCLAIMER OF WARRANTIES

10.1        YOUR RISK.  YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE.

10.2        “AS-IS.”  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND IONTRA AND IONTRA’S LICENSORS (COLLECTIVELY REFERRED TO AS “IONTRA” FOR THE PURPOSES OF THIS SECTION 10) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

10.3        BETA.  YOU ACKNOWLEDGE AND AGREE THAT THE  SOFTWARE, MAY INCLUDE BETA VERSIONS (“BETA VERSIONS”) WHICH ARE STILL UNDERGOING FINAL TESTING, MAY CONTAIN INACCURACIES OR ERRORS THAT COULD CAUSE FAILURES OR LOSS OF DATA, MAY BE INCOMPLETE, AND ARE NOT AT THE LEVEL OF PERFORMANCE OR COMPATIBILITY OF A FINAL, GENERALLY AVAILABLE PRODUCT OFFERING. SUCH BETA VERSIONS MAY NOT OPERATE CORRECTLY AND MAY BE SUBSTANTIALLY MODIFIED PRIOR TO FIRST COMMERCIAL USE, OR WITHDRAWN. THE BETA VERSIONS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  ANY DOWNLOAD AND USE OF THESE BETA VERSIONS ARE DONE AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE CAUSED BY USE OF SUCH BETA VERSIONS, INCLUDING WITHOUT LIMITATION DAMAGE TO YOUR IONTRA PRODUCT, ANY COMPUTER SYSTEM, DEVICE, OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE BETA VERSIONS ARE WITH YOU. SHOULD IT PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.  IT IS THEREFORE UP TO YOU TO TAKE ADEQUATE PRECAUTION AGAINST POSSIBLE DAMAGES RESULTING FROM THESE BETA VERSIONS. SOFTWARE, APPLICATIONS AND SERVICES IN BETA TESTING SHOULD FOR EXAMPLE NOT BE USED ON SENSITIVE AND/OR VALUABLE DATA AND SHOULD NOT BE USED IN PRODUCTION SYSTEMS. IN NO EVENT SHALL IONTRA BE LIABLE FOR ANY DAMAGE WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO USE SUCH BETA VERSIONS, EVEN IF IONTRA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.4        CRITICAL CONTROL APPLICATIONS. YOU FURTHER ACKNOWLEDGE THAT THE SOFTWARE IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS.

10.5        RIGHT TO CHANGE OFFERINGS.  IONTRA RESERVES THE RIGHT TO CHANGE,  SUSPEND, REMOVE, OR DISABLE ACCESS TO THE SOFTWARE, OR ANY PART OR PORTION THEREOF, AT ANY TIME WITHOUT NOTICE. IN NO EVENT WILL IONTRA BE LIABLE FOR THE REMOVAL OF OR DISABLING OF ACCESS TO THE SOFTWAR OR ANY PART OR PORTION THEREOF. IONTRA MAY ALSO IMPOSE LIMITS ON THE USE OF OR ACCESS TO CERTAIN PARTS OF THE SOFTWARE, OR MAY REMOVE THE SAME FOR INDEFINITE TIME PERIODS OR CANCEL THE SAME AT ANY TIME AND IN ANY CASE AND WITHOUT NOTICE OR LIABILITY.

10.6        NO WARRANTY.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY IONTRA OR AN IONTRA AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE PROVE DEFECTIVE.

10.7        FORCE MAJEURE. NOTWITHSTANDING ANYTHING ELSE IN THIS SOFTWARE LICENSE AGREEMENT, YOU AGREE TO EXCUSE ANY NON-PERFORMANCE BY IONTRA OR ANY OTHER RELATED OR UNRELATED SERVICE PROVIDER CAUSED IN WHOLE OR IN PART BY AN ACT OR OMISSION OF A THIRD PARTY, OR BY ANY EQUIPMENT FAILURE, ACT OF GOD, NATURAL DISASTER, STRIKE, EQUIPMENT OR FACILITY SHORTAGE OR OTHER CAUSES BEYOND THE CONTROL OF IONTRA OR ANY SERVICE PROVIDER.

11.           LIMITATION OF LIABILITY

11.1        LIMITATION ON TYPE OF DAMAGES. IN NO EVENT SHALL IONTRA OR ANY OF ITS RELATED ENTITIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONSULTANTS, SUBCONTRACTORS OR THIRD PARTY SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM DELAY, DAMAGES FOR LOSS OF GOODWILL, OR DAMAGES FOR LOSS OF OR DAMAGE TO DATA, OR LOST PROFITS, REVENUE OR SAVINGS (ACTUAL OR ANTICIPATED) OR OTHER LOST PROFITS, LOST BUSINESS OR ECONOMIC LOSSES, INCLUDING LOSSES FROM ANY RELIANCE ON THE  SOFTWARE, WHETHER ARISING IN CONTRACT, EQUITY, NEGLIGENCE, TORT OR OTHERWISE (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS, INJURY, OR DAMAGES CAUSED BY A LOSS OF DATA OR FILES, BY A COMPUTER VIRUS, OR BY A MALFUNCTION OR DEFECT IN THE SOFTWARE. THIS LIMITATION SHALL SPECIFICALLY SURVIVE A FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDIES THAT MAY BE PROVIDED IN THIS SOFTWARE LICENSE AGREEMENT.

11.2        LIMITATION ON AMOUNT OF DAMAGES. IN NO EVENT SHALL IONTRA’S AGGREGATE LIABILITY OR THE AGGREGATE LIABILITY OF ANY OF ITS RELATED ENTITIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONSULTANTS FOR ANY AND ALL CLAIMS ARISING UNDER THIS SOFTWARE LICENSE AGREEMENT EXCEED THE AMOUNT PAID BY YOU TO IONTRA. THIS LIMITATION ON THE AMOUNT OF LIABILITY SHALL APPLY WHETHER A CLAIM ARISES IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, INCLUDING BREACH OF WARRANTY. THIS LIMITATION SHALL ALSO SPECIFICALLY SURVIVE A FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDIES THAT MAY BE PROVIDED IN THIS SOFTWARE LICENSE AGREEMENT.

11.3        ALLOCATION OF RISK. THE PARTIES ACKNOWLEDGE THAT THE EXCLUSIONS AND LIMITATIONS IN THIS SOFTWARE LICENSE AGREEMENT REFLECT THE NEGOTIATED RISK ALLOCATION BETWEEN THE PARTIES TAKING INTO ACCOUNT INTER ALIA THEIR RESPECTIVE ABILITIES TO MANAGE RISK, THE AMOUNT PAID FOR THE SOFTWARE \, THE AVAILABILITY OF INSURANCE AND OTHER RELEVANT FACTORS. IN THE EVENT THAT ANY EXCLUSION OR LIMITATION SHALL BE UNENFORCEABLE UNDER THE LAW THEN IT SHALL BE DEEMED AMENDED TO SUCH EXTENT ONLY AS TO MAKE IT ENFORCEABLE.

11.4        LIMITATION ON TIME OF ACTION. NO ACTION ARISING OUT OF THIS SOFTWARE LICENSE AGREEMENT MAY BE BROUGHT BY YOU MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION HAS ACCRUED.

11.5        EXCLUSIONS AND LIMITATIONS.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 10 AND 11 MAY NOT BE APPLICABLE TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF IONTRA SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

12.           DISPUTE RESOLUTION & ARBITRATION.   

12.1        SUBMISSION TO BINDING INDIVIDUAL ARBITRATION.  PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO SUBMIT TO BINDING INDIVIDUAL ARBITRATION OF ALL DISPUTES, EXCEPT FOR THOSE THAT INVOLVE INTELLECTUAL PROPERTY DISPUTES AND EXCEPT THOSE THAT CAN BE BROUGHT IN SMALL CLAIMS COURT.  THIS MEANS YOU ARE WAIVING YOUR RIGHT TO HAVE SUCH DISPUTES RESOLVED IN COURT BY A JUDGE OR JURY.  THIS SECTION WAIVES YOUR RIGHT TO HAVE YOUR DISPUTE HEARD AND RESOLVED AS A CLASS ACTION, CLASS ARBITRATION, OR A REPRESENTATIVE ACTION.

12.2        Arbitration.  Any dispute or claim, in law or in equity, arising out of or relating to this SOFTWARE License Agreement or any relationship between the parties, no matter how described, pleaded or styled, shall be resolved through final, binding arbitration under the substantive and procedural requirements of the Federal Arbitration Act.  The arbitration shall be conducted by a single, neutral arbitrator chosen by the parties, and conducted in Denver, Coloradoa.  The arbitration shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association,  If You are an individual and use the IONTRA Product or IONTRA Software for personal or household use, or if the value of the dispute is $75,000 or less whether or not You are an individual or how You use the IONTRA Product or IONTRA Software, its Supplementary Procedures for Consumer-Related Disputes will also apply, available at www.adr.org.  Should either party refuse or neglect to choose an arbitrator or otherwise sincerely and in good faith participate in the arbitration process, then the arbitrator is empowered to proceed with one side alone.  The parties agree that the arbitrator, and not a court, shall have exclusive jurisdiction over the interpretation, validity, and scope of this arbitration agreement.  Subject to the above terms and subsection 12.3, neither party shall file or maintain any lawsuit in any court against the other, and the parties agree that any suit filed in violation of this Agreement shall be dismissed by the court in favor of an arbitration conducted pursuant to this SOFTWARE License Agreement. Each party shall bear its own expenses and the parties shall equally share the arbitration filing fee, arbitrator’s compensation, facilities fees, and other administrative fees.  However, if the claim or defense of either party is upheld by the arbitrator in all material respects, then the prevailing party shall be promptly reimbursed by the other party for its reasonable attorneys’ fees and disbursements, the reasonable costs of its experts and witnesses, and all other fees, costs and expenses of the arbitration.  Any award of the arbitrator shall be in writing and shall state the reasons for the award.  Any remedy available from a court under the law shall be available in the arbitration.  Judgment upon an award may be entered in any Court having competent jurisdiction.  Any judgment therein may be enforced in any court having jurisdiction.  The parties, their representatives and participants and the arbitrator shall hold the existence, content and result of the arbitration in confidence, except to the limited extent necessary to enforce a final settlement agreement or to obtain or enforce a judgment on an arbitration decision and award.  If any provision of this arbitration agreement is adjudged to be void or otherwise unenforceable, in whole or in part, such adjudication shall not affect the validity of the remainder of the SOFTWARE License Agreement. If this arbitration agreement is declared unenforceable and cannot be administered, interpreted, or modified to be enforceable, the parties agree any such dispute shall be commenced and maintained exclusively in the state or federal courts in the County of San Francisco and the parties each consent to the personal jurisdiction of said courts.  Any dispute or claim shall be brought solely in the party’s individual capacity, and not as a representative, private attorney general or class member in any purported class action, representative proceeding, mass action or consolidated action.

12.3        Exceptions.  You may also litigate any dispute in small claims court in Your county of residence or Denver, Colorado so long as the dispute meets all requirements to be heard in the small claims court and the matter advances on an individual (non-class) basis.

12.4        WAIVER OF JURY TRIAL.  THE PARTIES UNDERSTAND THAT BY ENTERING INTO THIS SOFTWARE LICENSE AGREEMENT, BOTH PARTIES ARE GIVING UP THEIR CONSTITUTIONAL RIGHT TO A JURY TRIAL AND, IF APPLICABLE, ANY RIGHTS THEY MAY HAVE TO BRING ANY CLAIMS ON A CLASS, REPRESENTATIVE, CONSOLIDATED OR MASS ACTION BASIS.

12.5        Immediate Relief.  Nothing herein shall prevent either party from seeking immediate injunctive relief pursuant to the Emergency Measures of Protection procedures in the AAA Commercial Rules if, in its judgment, such relief is necessary to protect its interests prior to utilizing or completing this dispute resolution process.  Such remedy shall be in addition to all other remedies, including money damages, available to such party at law or in equity.

13.           MISCELLANEOUS

13.1        IONTRA Right to Innovate.  Nothing in this Agreement will impair IONTRA’s right to distribute its products or technologies to companies that have products that perform the same or similar functions as, or otherwise compete with, Customer Products or any other products or technologies that You may develop, produce, market, or distribute.

13.2        Entire Agreement.  This SOFTWARE License Agreement, together with all other agreements entered into by You and Iontra, constitutes all Agreements between you and Iontra provided that this Agreement specifically governs Your use of the SOFTWARE, and completely replaces any prior agreements between You and IONTRA in relation to the SOFTWARE.

13.3        Assignment.  You shall not have the right to assign this SOFTWARE License Agreement or any of Your rights hereunder, or to delegate any of Your obligations hereunder, whether in whole or in part; any assignment or delegation to the contrary shall be deemed void from inception. IONTRA shall have the right to assign this SOFTWARE License Agreement and any and all of its rights hereunder, and to delegate any and all of its obligations hereunder, to any third party.

13.4        Severability.  If any court of law, having the jurisdiction to decide on this matter, rules that any provision of this SOFTWARE License Agreement is invalid, then that provision will be removed from this SOFTWARE License Agreement without affecting the rest of this SOFTWARE License Agreement. The remaining provisions of this SOFTWARE License Agreement will continue to be valid and enforceable.

13.5        Governing Law.  This SOFTWARE License Agreement, Your relationship with IONTRA under this SOFTWARE License Agreement, and   all   related   disputes between the parties shall be construed under and controlled by the Laws of the State of Colorado, USA excluding its choice of Law principles that would require the application of the Laws of another jurisdiction, and the parties hereto hereby consent to exclusive jurisdiction and venue in Denver, Colorado, USA for any claims raised. Each Party hereby waives any claim that any legal proceeding brought in accordance with this section has been brought in an inconvenient forum or that the venue of that proceeding is improper. In no event shall this SOFTWARE License Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods.  Notwithstanding this, You agree that IONTRA shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

13.6        Injunctive Relief.  You acknowledge  and  agree  that any unauthorized copying, distribution, reproduction, disclosure, or use of any aspect of any SOFTWARE will immediately give rise to continuing irreparable injury to IONTRA inadequately compensable in damages at Law and, without prejudice to any other remedy available to IONTRA, shall entitle IONTRA to seek injunctive relief without the necessity of posting a bond.

13.7        EXPORT RESTRICTIONS. THE SOFTWARE IS SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS. YOU MUST COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO THE SOFTWARE. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, USERS AND END USE. IN PARTICULAR, BUT WITHOUT LIMITATION, THE SOFTWARE MAY NOT BE EXPORTED OR RE-EXPORTED (A) INTO ANY U.S. EMBARGOED COUNTRIES OR (B) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. DEPARTMENT OF COMMERCE DENIED PERSON’S LIST OR ENTITY LIST. BY USING THE SOFTWARE, YOU REPRESENT AND WARRANT THAT YOU ARE NOT LOCATED IN ANY SUCH COUNTRY OR ON ANY SUCH LIST. YOU ALSO AGREE THAT YOU WILL NOT USE THE SOFTWARE FOR ANY PURPOSES PROHIBITED BY UNITED STATES LAW, INCLUDING, WITHOUT LIMITATION, THE DEVELOPMENT, DESIGN, MANUFACTURE, OR PRODUCTION OF NUCLEAR MISSILES OR CHEMICAL OR BIOLOGICAL WEAPONS.

13.8        Notice.  Any notices relating to this Agreement shall be in writing. All notices will be deemed given (a) when delivered personally, (b) three business days after having been sent by commercial overnight carrier with written proof of delivery, and (c) five business days after having been sent by first class or certified mail, postage prepaid.  A party may change its email or mailing address by giving the other written notice as described above.