1.1.  Retention of Rights.  TANA reserves all rights not expressly granted to Licensee in this Agreement.  Without limiting the generality of the foregoing, Licensee acknowledges and agrees that:  (i) except as specifically set forth in this Agreement, TANA and its licensors retain all right, title and interest, including all intellectual property and other proprietary rights, in and to the Software, Sample Data and Documentation and in and to all modifications, Updates, enhancements and derivative works relating thereto, and Licensee acknowledges and agrees that it does not acquire any rights, express or implied in or to any of the foregoing, except as specifically set forth in this Agreement; (ii) TANA may, in its sole discretion, provide Updates to Licensee but has no obligation to do so and reserves the right to charge fees for such Updates, and (iii) unless specifically agreed in writing by the parties hereto to the contrary, if Licensee suggests or provides any new features, functionality, or performance for the Software or Sample Data that TANA subsequently incorporates into the Software or Sample Data, the Software and Sample Data incorporating such new features, functionality, or performance, and all intellectual property related thereto, shall be the sole and exclusive property of TANA.

1.2.  Verification.  TANA reserves the right to audit Licensee’s use of the Software and Sample Data at TANA’s expense and Licensee agrees to cooperate with TANA with respect to such audit rights.

2.  USE OF WEB FORUM

3.1     Limited License.  Subject to the terms and conditions of this Agreement,  TANA grants Licensee a limited use, non-exclusive, non-transferable, non-sublicensable license to access and use the Web Forum during the term of this Agreement.

3.2  Limitations On Use of the Web Forum.

3.2.1      Licensee may view, download, and print content from the Web Forum subject to the following conditions:  (a) the content may be used solely for informational purposes; (b) the content may not be modified or altered in any way; and (c) Licensee may not republish, distribute, prepare derivative works from, or otherwise use the content other than as explicitly permitted herein.

3.2.2      Licensee does not acquire any ownership rights to any content in the Web Forum by virtue of using the Web Forum.

3.2.3      Without limiting the generality of the foregoing, in consideration for TANA providing access to the Web Forum, Licensee agrees not to use or access the Web Forum to:  (a) violate any applicable law, rule, or regulation; (b) harass, offend, threaten, embarrass, distress, or invade the privacy of any individual or entity; (c) post or transmit any unsolicited commercial, advertising, or promotional materials, including, without limitation, "SPAM" or mass distributions; (d) provide false information to TANA or impersonate another person at any point; and/or (e) transmit any material that infringes upon, misuses, and/or misappropriates any third party's copyright, trademark, patent, trade secret, or other intellectual property right.

3.3     Termination of Access to Web Forum.  If Licensee, Licensee’s employees or Licensee’s authorized representatives violate the terms and conditions of this Agreement, TANA may, without prior notice and without liability, terminate Licensee’s access to the Web Forum and/or take any other action deemed appropriate in its sole discretion.

3.4     Third Party Web Sites and Information.  The Web Forum may provide hyperlinks to third party web sites.  TANA does not control, endorse, or guarantee content found in such web sites.  Licensee agrees that TANA is not responsible for any content, associated links, resources, or services associated with third party web sites.  Licensee further agree that TANA shall not be liable for any loss or damage of any sort associated with Licensee’s use of or access to third party web sites.  Any hypertext links or access to third party web sites are provided for Licensee’s convenience only.

3.5     Disclaimer of Endorsement.  Reference in the Web Forum to any products, services, information, advice, processes, hypertext links to third parties, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply their endorsement, sponsorship, or recommendation by TANA.  Use of information posted on the Web Forum shall be at Licensee’s sole risk and TANA shall not be liable for any damages resulting therefrom.  The TANA name and logo and other trademarks and trade names owned by TANA may not be used in any commercial manner without the prior written consent of TANA.

3.6     Consent to Monitoring and Disclosure.  TANA is under no obligation to monitor the information or content available or transmitted through the Web Forum.  However, Licensee agrees that TANA may, in its sole discretion, monitor such information and content in order to:  (a) comply with any applicable laws, rules, or regulations or other governmental orders,  and/or (b) to administer the Web Forum properly.

3.7     Administration of Web Forum. You acknowledge that TANA may, from time to time, without notice to Licensee and at its sole discretion, establish various practices, limitations, and restrictions for administering the Web Forum.  Licensee also agree that TANA is not responsible or liable for deactivation or deletion of information or content resulting from, or arising out of, administration of the Web Forum.

3.8     Ownership of Intellection Property.  In the event Licensee provides, posts or otherwise makes information available via the Web Forum, including, without limitation, writings, drawings, sound recordings, computer programs and codes, updates, bug fixes, derivatives of the Software, system specifications, pictorial representations, and graphs (collectively, “Posted Information”), Licensee agrees as follows:

3.8.1      No Posted Information will be confidential or proprietary to any third party.

3.8.2      All right, title and interest, including copyright interests and any other intellectual property, in and to any Posted Information shall be the property of TANA.  Licensee agrees to assign and, upon its creation, automatically assigns to TANA the ownership of all Posted Information, including copyright interests and any other intellectual property therein, without the necessity of any further consideration.  Licensee shall have a non-exclusive, non-transferable, non-sublicensable, license to use the Posted Information during the term of this Agreement and in accordance with the license terms set forth in this Agreement.

3.9     Use of Information.  With respect to information provided to TANA by Licensee or Licensee’s users regarding Licensee or its products that does not constitute Posted Information (e.g., information submitted with Licensee’s application to license the Software, the Sample Data and access and use of the Web Forum), Licensee agrees that TANA make such information available to other licensees on the Web Forum, unless the Licensee specifies through the opt-out feature on the Web Forum that such information will not be published.  Additionally, if Licensee agrees to participate in the Web Forum’s “community directory”, TANA may publish information about Licensee to other licensees.  Licensee shall not use any such information about other licensees for solicitation or marketing purposes.

3.        MAINTENANCE SERVICES

3.1.    Maintenance Services for Software. Licensee is not entitled to, and TANA is not obligated to provide, any maintenance services relating to the Software or Sample Data.

4.        ORDERS AND PAYMENT PROVISIONS

4.1.  License Fees.  Provided that Licensee complies with the terms, conditions and obligations under this Agreement, the Software, Sample Data  and use of the Web Forum are licensed to Licensee under this Agreement at no cost.

6.        TERM AND TERMINATION

6.1.     Term.  The Software, Sample Data and Web Forum use and access Licenses granted under this Agreement shall commence on the Effective Date and shall remain in effect for one (1) year unless such Software, Sample Data and Web Forum use and access Licenses or this Agreement are terminated earlier as provided in Section 6.2 or 6.3.  Licensee may extend the initial term and any subsequent terms for additional one (1) year periods by notifying TANA via a designated link/page in the Web Forum no more than thirty (30) days prior to the expiration of the then-current term, unless TANA notifies Licensee of non-renewal at least thirty (30) days prior to the expiration of the then-current term.

6.2.     Termination by Either Party For Convenience.  Either party may terminate the Software, Sample Data and Web Forum use and access Licenses at any time upon electronic or written notice to the other party.

6.3   Termination by TANA.  TANA may terminate the Software, Sample Data and Web Forum use and access Licenses or this Agreement immediately upon written notice if Licensee ceases to conduct business in the normal course; Licensee becomes insolvent; Licensee makes or seeks to make an assignment for the benefit of its creditors; proceedings in voluntary or involuntary bankruptcy are initiated by, on behalf of or against Licensee; or a receiver or similar officer is appointed or takes possession of all or part of Licensee’s material assets.

6.4   Termination By Either Party For Material Breach.  Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days following receipt of written notice specifying the breach in detail.

6.5   Effect of Termination.  The parties’ rights and obligations under Sections 1, 2.3, 2.4, 3.2, 3.3, 3.4, 3.5, 3.7, 3.8, 3.9, 6.5, 6.6, 7, 8, 9 and 10 shall survive termination of this Agreement.

6.6   Handling of Software, Sample Data and Confidential Information Upon Termination.  If the Software, Sample Data and Web Forum use and access Licenses granted under this Agreement terminate, Licensee shall (i) immediately cease using the Software, Sample Data, Web Forum, Documentation, and related Confidential Information of TANA, and (ii)  either destroy or return to TANA, the Software, Sample Data, Documentation, and related Confidential Information of TANA, and all copies thereof, whether or not modified or merged into other materials.  Upon the request of TANA after termination of this Agreement, Licensee shall certify to TANA within thirty (30) days of termination that it has destroyed or returned to the other party all Software, Sample Data, Documentation and Confidential Information of TANA, and all copies thereof, whether or not modified or merged into other materials.

7.     WARRANTY DISCLAIMERS

7.1   Disclaimers.  THE SOFTWARE, SAMPLE DATA AND DOCUMENTATION ARE PROVIDED ON AN “AS IS” AND “WITH ALL FAULTS BASIS” AND TANA AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE.  TANA DOES NOT WARRANT THAT THE SOFTWARE, SAMPLE DATA OR DOCUMENTATION WILL BE ERROR FREE.  NO ORAL OR WRITTEN ADVICE OR INFORMATION PROVIDED BY TANA OR ANY OF ITS AGENTS, EMPLOYEES OR THIRD PARTY PROVIDERS SHALL CREATE A WARRANTY, AND LICENSEE IS NOT ENTITLED TO RELY ON ANY SUCH ADVICE OR INFORMATION.  THIS DISCLAIMER OF WARRANTIES IS AN ESSENTIAL CONDITION OF THE AGREEMENT.

8.     LIMITATION OF LIABILITY

8.1   Limitation.  IN NO EVENT SHALL TANA OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, DATA OR USE, INCURRED BY LICENSEE OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE, EVEN IF TANA OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE AGGREGATE AND CUMULATIVE LIABILITY OF TANA AND ITS LICENSORS FOR DIRECT AND PROVEN DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNTS PAID TO TANA UNDER THIS AGREEMENT.

9.             NONDISCLOSURE

9.1       Nondisclosure.  The Software, Sample Data and Documentation contain valuable trade secrets and are the confidential and proprietary information of TANA.  Licensee agrees that it shall not disclose, provide or otherwise make available the Software, Sample Data or Documentation, or other proprietary or confidential information disclosed to Licensee by TANA hereunder (such Software, Sample Data, Documentation and other information collectively referred to as the “Confidential Information”), to any person other than authorized employees or agents of Licensee whose use of or access to the Confidential Information is necessary in connection with Licensee’s exercise of its rights granted under this Agreement.  Licensee further agrees that it shall not use Confidential Information for any purpose other than in the performance of this Agreement.  Licensee shall use all commercially reasonable precautions to protect the confidentiality of the Confidential Information, and shall secure from all employees, agents or contractors having access to the Confidential Information agreements, at least as protective of the Confidential Information as the provisions of this Section 9, to maintain such Information in confidence.  Confidential Information shall not include information that Licensee can demonstrate: (a) was in Licensee’s possession without confidentiality restriction prior to disclosure hereunder, (b) is or has become generally available to the public through no act or omission of Licensee or (c) has been rightfully received by Licensee from a third party without restriction on use or disclosure.

This Section 9.1 shall not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, that Licensee shall first have given prompt written notice of such order to TANA and shall have taken reasonable steps to assist TANA in contesting such order or in otherwise protecting TANA’s rights prior to disclosure. 

In view of the difficulties of placing a monetary value on the Confidential Information, Licensee acknowledges that there would be no adequate remedy at law for breach of this Section 9.1; that such breach would cause irreparable harm to TANA; and that, therefore, TANA shall be entitled to a preliminary injunction without the necessity of posting any bond or undertaking in connection therewith to prevent any further breach of this Agreement or further unauthorized use of its Confidential Information.  This remedy is separate from, and in addition to, whatever other remedies TANA may have under this Agreement, at law or in equity in the event of such breach. 

10.   GENERAL PROVISIONS

10.1 Assignment.

10.1.1.      Licensee shall not assign, sell, lease, or otherwise transfer (whether by operation of law or otherwise) this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of TANA.  Any purported transfer in violation of this Section 10.1.1 shall be null and void.

10.1.2.      Subject to Section 10.1.1, all provisions of this Agreement shall be binding upon, inure to the benefit of and be enforceable by and against the respective successors and assigns of TANA and Licensee.

10.2    Governing Law.  This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of New Hampshire, excluding its conflict of law provisions.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.  Any legal proceeding brought by either party relating in any way to this Agreement shall be commenced and maintained in the courts of the State of New Hampshire or the United States District Court for the District of New Hampshire, for which purpose each of the parties irrevocably consents and submits to the exclusive jurisdiction and venue of both such courts in respect of any such proceeding.

10.3     Notices.  All notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed e-mail; (ii) the date sent by confirmed facsimile, (ii) on the date it was delivered by courier, or (iii) if by certified mail return receipt requested, on the date received, to the addresses set forth above and to the attention of the signatories of this Agreement, or to such other address or individual as the parties may specify from time to time by written notice to the other party.

10.4    Severability.  If any provision of this Agreement, or portion thereof, is held invalid by any law, rule, order or regulation of any government or by the final determination of any court of competent jurisdiction, such invalidity shall not affect the enforceability of any of the other provisions of this Agreement, and such other provisions shall be interpreted so as to best accomplish the objectives of such invalid provision within the limits of applicable law or applicable court decision.

10.5     Waiver.  No term or provision of this Agreement will be considered waived by either party, or breach excused by either party, unless such waiver or excuse is in writing signed on behalf of the party against whom such waiver or excuse is asserted.  No failure or delay by either party in exercising any right, power or remedy under this Agreement shall operate as a waiver of such right, power or remedy.  The waiver by either party of any breach or default under this Agreement shall not constitute a waiver of any other or subsequent breach or default. 

10.6     Publicity.  Either party may disclose that Licensee has licensed TANA’s products, and TANA may describe in general, non-confidential terms, the terms of this Agreement in its marketing materials.  Licensee agrees that TANA may issue a press release announcing that it has entered into an agreement with Licensee to license TANA’s products.  Licensee agrees that TANA may publicly announce and list Licensee as a customer of TANA. 

10.7     Export Controls.  Licensee agrees to comply fully with all relevant export laws and regulations of the United States, including but not limited to the U.S. Export Administration Regulations (collectively, “U.S. Export Controls”).  Without limiting the generality of the foregoing, Licensee expressly agrees that it shall not, and shall cause its representatives to agree not to, export, directly or indirectly, re-export, divert, or transfer the Software, Sample Data, Documentation or any direct product thereof to any destination, company or person restricted or prohibited by U.S. Export Controls.

10.8     U.S. Government Restricted Rights Legend.  If Licensee is a state, federal or other public entity (“Government”), Licensee agrees to protect the Software, Sample Data, Documentation and other Confidential Information from public disclosure.  In the event that Licensee is required to disclose the Software, Sample Data, Documentation or other Confidential Information under any law or regulation that permits public access and/or reproduction or use of the Software, Sample Data, Documentation or other Confidential Information, Licensee shall notify TANA in writing prior to such disclosure and if TANA is unable to comply with such disclosure, this Agreement shall be automatically terminated and considered immediately null and void.  Any software, documentation and/or data delivered hereunder is subject to the term of this Agreement.  Any computer software, computer software documentation and/or technical data delivered hereunder to the Government, either directly under a prime contract, or indirectly through subcontract, is subject to the terms of this Agreement.  In no event shall the Government acquire rights greater than LIMITED or RESTRICTED rights as described in DFARS 252.227-7014(a)(1) (JUN 1995) (DOD commercial computer software definition), DFARS 227.7202-1 (DOD policy on commercial computer software), FAR 52.227-19 (JUN 1987) (commercial computer software clause for civilian agencies), DFARS 252.227-7015 (NOV 1995) (DOD technical data – commercial items clause); FAR 52.227-14 Alternates I, II, and III (JUN 1987) (civilian agency technical data and noncommercial computer software clause); and/or FAR 12.211 and FAR 12.212 (commercial item acquisitions), as applicable.  In case of conflict between any of the FAR and DFARS provisions listed herein and this Agreement, the construction that provides greater limitations on the Government’s rights shall control

10.9     Relationship Between the Parties.  TANA and Licensee are independent contractors, and nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.

10.10   Entire Agreement.  This Agreement constitutes the complete and final agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement.  This Agreement may not be modified or amended except by an instrument in writing signed by a duly authorized representative of each of the parties hereto.  No other act, document, usage or custom shall be deemed to modify or amend this Agreement.  Any purchase order or other document issued by Licensee is for convenience only.  Any preprinted or typed terms and conditions on any Licensee purchase order or other document are null and void and shall not add to or modify the terms of this Agreement.

By clicking on the “I Agree” button, you represent and warrant (a) that the information submitted to TANA in connection with Licensee’s request to license the Software, the Sample Data and access and use of the Web Forum is accurate and complete, and (b) that you have the authority to bind the Licensee noted above to the terms and conditions contained herein.