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IONTRA CHARGE CONTROL Software License Agreement

IONTRA INC (“IONTRA”) IS WILLING TO LICENSE TO YOU THE SOFTWARE (AS DEFINED HEREIN) 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.  FOR ELCTRONIC DOWNLOADS, FOR CLICKWRAP SIGNATURE ONLY:  AFTER YOU READ IT, YOU WILL BE ASKED WHETHER YOU ACCEPT AND AGREE TO ITS TERMS.  DO NOT CLICK “I ACCEPT” UNLESS 1) YOU WILL USE THE LICENSED MATERIALS FOR YOUR OWN BENEFIT AND PERSONALLY ACCEPT, AGREE TO AND INTEND TO BE BOUND BY THESE TERMS OR 2) YOU ARE AUTHORIZED TO, AND INTEND TO BE BOUND BY, THESE TERMS ON BEHALF OF YOUR COMPANY.

The SOFTWARE is specifically designed and licensed for use solely and exclusively with semiconductor devices manufactured by or for Iontra (“Iontra Devices”) or other semiconductor devices approved for use by Iontra (“Iontra Approved Devices”). By installing, copying or otherwise using the SOFTWARE You agree to abide by the provisions set forth herein. This Agreement is displayed for You to read prior to using the SOFTWARE. If You choose not to accept or agree with these provisions, do not download, install or otherwise acquire or use the SOFTWARE.

Note Regarding Possible Access to Other Software: The SOFTWARE may be bundled with software and associated electronic documentation, if any, licensed under terms other than the terms of this Agreement (in whole or in part, “Other Licensed Materials”), including, for example Open Source Software and/or Iontra-owned or third party Proprietary Software licensed under such other terms. “Open Source Software” means any software licensed under terms requiring that (A) other software (“Proprietary Software”) incorporated, combined or distributed with such software or developed using such software: (i) be disclosed or distributed in source code form; or (ii) otherwise be licensed on terms inconsistent with the terms of this Agreement, including but not limited to permitting use of the Proprietary Software on or with devices other than TI Devices, or (B) require the owner of Proprietary Software to license any of its patents to users of the Open Source Software and/or Proprietary Software incorporated, combined or distributed with such Open Source Software or developed using such Open Source Software.

If by accepting this Agreement, You gain access to Other Licensed Materials, they will be listed in the applicable software manifest. Your use of the Other Licensed Materials is subject to the applicable other licensing terms acknowledgements and disclaimers as specified in the applicable software manifest and/or identified or included with the Other Licensed Materials in the software bundle. For clarification, this Agreement does not limit Your rights under, or grant You rights that supersede, the terms of any applicable Other Licensed Materials license agreement. If any of the Other Licensed Materials is Open Source Software that has been provided to You in object code only under terms that obligate Iontra to provide to You or show You where You can access the source code versions of such Open Source Software, Iontra will provide to You, or show You where You can access, such source code if You contact Iontra. In the event You choose not to accept or agree with the terms in any applicable Other Licensed Materials license agreement, You must terminate this 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 and/or discharging optimization technology (“IONTRA TECHNOLOGY”) for use in Your product and/or (ii) integrating IONTRA Technology into Your commercial product.

2.              DEFINITIONS

2.1           “Customer Product” means Your non-IONTRA branded hardware device that contains, interfaces, communicates, or otherwise interoperates with Iontra Technology.

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 Iontra Product 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 any hardware product delivered for Your use by Iontra which may include, for example, any Iontra or third party microchip into which Iontra Technology is or will be embedded, as well as any hardware device (including PCBs or other hardware platforms) that are used to facilitate the use of Iontra Technology for evaluating and/or enabling the use of Iontra Technology in Customer Products.  .

2.5           “OSS” or “Open Source Software” 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 programs and any associated electronic documentation (in each case, in whole or in part) as well as any Updates or Upgrades to such software programs or documentation, if any, that is made available to You by IONTRA for the purposes of evaluating or enabling the use of Iontra Technology in a Customer Product.

2.7           “Update” means a 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, revocable, non-exclusive, non-transferable and non-sublicensable license to access, download, install and use the SOFTWARE for evaluating and/or enabling the use of Iontra Technology in Customer Products including the following:

(a)            Limited Source Code License:. make copies, prepare derivative works, display internally and use internally the SOFTWARE provided to You in source code for the sole purpose of developing object and executable versions of such SOFTWARE, or any derivative thereof, that execute solely and exclusively on Iontra Devices or Iontra Approved Devices, for end use in Customer Products, and maintaining and supporting such SOFTWARE, or any derivative thereof, and Customer Products. For purposes of this Agreement, “Customer Product” means a product that consists of either or both: (i) hardware, including one or more Iontra Devices or Iontra approved Devices, and (ii) software components, including only executable versions of the SOFTWARE that execute solely and exclusively on such Iontra Devices or Iontra Approved Devices.

(b)            Object Code Evaluation, Testing and Use License. make copies, display internally, distribute internally and use internally the SOFTWARE in object code for the sole purposes of evaluating and testing the Iontra Product and designing and developing Customer Products, and maintaining and supporting the Customer Products;

(c)             Demonstration License. demonstrate to third parties the Iontra Technology executing solely and exclusively on Iontra Devices or Iontra Approved Devices as they are used in Customer Products, provided that such SOFTWARE are demonstrated in object or executable versions only; and

(d)            Production and Distribution License. make, use, import, export and otherwise distribute the SOFTWARE  as part of a Customer Product, provided that such Customer Products include only embedded executable copies of such Licensed Materials that execute solely and exclusively on Iontra Devices or Iontra Approved Devices.

4.2           Reference Design Use License. Subject to the terms of this Agreement, Iontra hereby grants to You a free, nontransferable, non-exclusive, non-assignable, non-sub-licensable worldwide license to:

(a)            use the SOFTWARE to design, develop, manufacture or have manufactured, sell, offer to sell, or otherwise distribute Customer Product(s) or product designs, including portions or derivatives of the SOFTWARE as they are incorporated in or used with Customer Product(s), provided such Customer Products or product designs utilize an Iontra Device or Iontra Approved Device.

4.3           Limited Tools License. Subject to the terms of this Agreement, Iontra  hereby grants to You a free, non-exclusive, non-transferable, non-assignable, royalty-free, non-sub-licensable worldwide license to:

(a)            use the SOFTWARE to generate applications that execute solely and exclusively with systems containing Iontra Devices or Iontra Approved Devices. You may not use the SOFTWARE to assist in the design, development or verification of a processing device not manufactured by or for Iontra, or is not otherwise an Iontra Approved Device without the express written consent of Iontra. Use of the SOFTWARE to assist in the design, development or verification of a processing device not manufactured by or for or approved prior by Iontra is a material breach of this Agreement.

(b)           The SOFTWARE may include software programs in an object code format that are designed specifically for use with Iontra Devices or Iontra Approved Devices in target applications. Iontra grants to You a license to reproduce, test and evaluate such programs solely for use with Iontra Devices or Iontra Approved Devices. The SOFTWARE may also include libraries and applications software in source code form. You may use these programs to create modified or derivative programs that in source code form remain subject to the restrictions set forth in Section 4.1 (a)., above, but that in object code form may be reproduced, tested, distributed, and evaluated by You solely for use with Iontra Devices or Iontra Approved Devices as specified in Sections 4.1 (b). and 4.1 (d). above.

4.4           Contractors. The licenses granted to You hereunder shall include Your on-site and off-site contractors (either an individual or entity), while such contractors are performing work for or providing services to You, provided that such contractors have executed work-for-hire agreements with You containing applicable terms and conditions consistent with the terms and conditions set forth in this Agreement and provided further that You shall be liable to Iontra for any breach by Your contractors.

4.5           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.

4.6           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.

4.7           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.

4.8           Restrictions on Use of the SOFTWARE.  You shall maintain the source code versions of the SOFTWARE, if any, under password control protection and shall not disclose such source code versions of the SOFTWARE, to any person other than Your employees and contractors whose job performance requires access. You shall not use the SOFTWARE with a processing device other than an Iontra Device or Iontra Approved Device unless specifically approved by Iontra in writing, and You agree that any such unauthorized use of the SOFTWARE is a material breach of this Agreement. You shall not use the SOFTWARE for the purpose of analyzing or proving infringement of any of Your patents by either Iontra or Iontra’s customers. Except as expressly provided in this Agreement, You shall not copy, publish, disclose, display, provide, transfer or make available the SOFTWARE to any third party and You shall not sublicense, transfer, or assign the SOFTWARE or Your rights under this Agreement to any third party. You shall not mortgage, pledge or encumber the SOFTWARE in any way. You may use the SOFTWARE with Open Source Software or with software developed using Open Source Software tools provided You do not incorporate, combine or distribute the SOFTWARE in a manner that subjects the SOFTWARE to any license obligations or any other intellectual property related terms of any license governing such Open Source Software.  In addition, 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 4.8(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 4.8 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.

4.9           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.

4.10        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, marketing materials or other distinctive brand features without Iontra’s approval in writing.  Such rights may be provided in a separate agreement with IONTRA.

4.11        Covenant not to Sue. During the term of this Agreement, You agree not to assert a claim against Iontra or its customers that the SOFTWARE infringes Your intellectual property rights.

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.  Some of the SOFTWARE may be 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 may  still be under development and for such SOFTWARE deliverables, 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 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, including without limitation, to address any potential infringement, fix and bugs or to meet specifications, 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 if (a) You breach this Software License Agreement in any manner; (b) You fail to pay for the SOFTWARE or any IONTRA Product when required; (c) You violate a material regulatory requirement associated with Your use of the SOFTWARE, (d) You file for bankruptcy or otherwise become insolvent, or (e) IONTRA no longer provides the SOFTWARE or certain parts of the SOFTWARE to users in the country in from which You access the SOFTWARE, and in the case of any of the foregoing, you fail to correct the breach or violation within thirty (30) days following notice from IONTRA of such breach or violation.

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 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 in a manner that voids Iontra’s warranty (as set forth in Iontra’s applicable Terms and Conditions of Sale), or is otherwise caused by your negligence or willful misconduct, 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.  SOLELY WITH RESPECT TO PRE-PRODUCTION SOFTWARE, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SOFTWARE IN YOUR APPLICATION OR PRODUCTS 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. WARRANTIES FOR PRODUCTION SOFTWARE ARE CONTAINED IN THE IONTRA INC – TERMS AND CONDITIONS OF SALE.

10.2        Limited Test and Acceptance Period: Iontra offers a limited test and acceptance period  of 90 days post delivery of SOFTWARE to  ensure Buyer can validate the software performs substantially as described in the documentation.  It is the Buyer’s responsibility to test and formally test and accept the software and a no-response at the end of this time period shall be deemed as acceptance of the software,  Its is the Buyers responsibility to test and accept the software prior to product sales or distribution.  Any failure to adopt an Update required by IONTRA during the warranty period shall void the warranty.

10.3        Royalty Fees: Royalty fees, if applicable, for the SOFTWARE shall be agreed upon in writing between Iontra and the Buyer and shall be governed under the terms and conditions of this agreement and Iontra’s standard terms and conditions of sale

10.4        Inspection and Audit Rights: Iontra reserves the right to examine the Buyer’s books and records to verify sales and royalty payments.

10.5        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.

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

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.

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.           BATTERY USAGE

YOU acknowledge that the SOFTWARE is intended only for use with the specific battery brand, type/SKU/version for which it has been designated by IONTRA (“Specified Battery Cell”) and the end product for which it is intended as agreed to by IONTRA and You (“Specified Customer Product”). IONTRA retains no liability for any of the following:

• Use of the SOFTWARE with any battery other than the Specified Battery Cell and the Specified Customer Product, unless otherwise agreed to in writing by IONTRA;
• Any defect, failure, batch to batch variation of the Specified Battery Cell, including any Specified Battery Cells not meeting the specifications of such Specified Battery Cell published by its manufacturer; and
• Any failure of You to test any or all of the Specified Battery Cell and validate its use with the SOFTWARE (subject to any separate agreement that You and IONTRA may have addressing IONTRA’s testing of the Specified Battery Cell to validate its use with the SOFTWARE).

13.           DISPUTE RESOLUTION & ARBITRATION.   

13.1        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.

13.2        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 Arapahoe County, Colorado.  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 Arapahoe County Colorado 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.

13.3        Exceptions.  You may also litigate any dispute in small claims court in Your county of residence or Arapahoe 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.

13.4        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.

13.5        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.

14.           MISCELLANEOUS

14.1        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.

14.2        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.

14.3        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.

14.4        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.

14.5        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 Arapahoe County, 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.

14.6        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.

14.7        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.

14.8        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.