End User License Agreement ("EULA") - March 1, 2012

This End User License Agreement ("EULA") is a legal agreement between Timesys Corporation ("Timesys") and You concerning Timesys' TimeStorm, Desktop Factory and associated Installer Software (excluding Open Programs defined later) licensed hereunder ("Timesys Software"). Clicking the accept icon or otherwise using the Timesys Software constitutes Your agreement with and acceptance of this EULA. If You do not accept this EULA, You will NOT be authorized to use the Timesys Software and may be entitled to a refund of the fees, if any, You paid for the Timesys Software.

This EULA does not apply to the Linux kernel nor to any other programs provided to You under an open source license, even if supplied in the same electronic file transmission as the Timesys Software. For example, Linux is subject to the GNU General Public License ("GPL"). Additional programs subject to other open source licenses, referred to herein as "open programs" may be identified by reading the "about.htm", "license" or "copyright" files with each program.

The Timesys Software and Open Programs are separate and distinct programs even if provided within the same electronic file transmission. In addition, other programs subject to other license agreements may also be included within the same electronic transmission. Certain portions of the Timesys Software are subject to the Common Public License ("CPL") and/or other license terms as described in the "about.htm" and "license" files contained in those programs.

The Timesys Software does not contain, nor is it derived from any programs and is NOT subject to the GPL or any other open source license.

A. LICENSE GRANT

  1. Development License: Timesys hereby grants You a limited, non-exclusive, non-transferable license to install and use the Timesys Software for which You have paid any applicable fee(s), solely for Your internal use in the development of embedded applications ("Your Application") for distribution to Your customers. The Timesys Software may be used only by the number of users for which You have paid a Subscription and/or Software Development License Fee, if applicable. A Subscription or Development License may be transferred from one user to another only on a permanent (not temporary) basis. Only Your employees and contractors that agree to the terms of this EULA may access or use the Timesys Software. Timesys may offer certain Timesys Software on a "Floating License" basis. If You pay any applicable fee(s) for a Floating License, You shall have the license right to permit the specified number of concurrent users to access and use the Timesys Software. In addition, You hereby certify that You: (a) are not a citizen of, nor located in, any of the countries prohibited from receiving United States (“US”) exports, or prohibited from transacting with US citizens pursuant to US embargoes or other sanctions; (b) are not prohibited from receiving US exports by being listed on any export denial list published by the: US State Department - Directorate of Defense Trade Controls, US Treasury Department - Office of Foreign Assets Control, or US Department of Commerce - Bureau of Industry and Security; and, (c) will not export or re-export US-origin products or technology obtained from Timesys in violation of US export regulations. You acknowledge that Timesys has the right, but not the obligation, to periodically audit Your use of the Timesys Software to ensure Your compliance with these Terms and applicable laws. You agree to immediately notify Timesys of any unauthorized use of the Timesys Software, Your account or any other breach of security of which You become aware.

  2. Trial Software: If the Timesys Software is used for evaluation purpose only then the license granted hereunder is a limited, non-exclusive, non-transferable, revocable license to install and use the Trial Software solely during the License Period for internal review and testing of the Trial Software. This license grant shall terminate immediately and without further notice upon expiration of the License Period, at which time You shall return to Timesys, or certify as destroyed, all Trial Software and related documentation. "License Period" means (subject to earlier termination as set forth in Section F below) the period of time beginning with the date upon which You first install the Trial Software and ending upon the earliest occurrence of any of the following events: (i) You purchase a subscription and technical support for Timesys Software; or (ii) End date of the agreed upon trial period.

  3. Pre-Release Software: If the Timesys Software has not yet been made generally available for licensing by the public ("Pre-Release Software"), then the license granted hereunder is a limited, non-exclusive, non-transferable, revocable license to install and use the Pre-Release Software solely during the License Period for internal review and testing of the Pre-Release Software. This license grant shall terminate immediately and without further notice upon expiration of the License Period, at which time You shall return to Timesys, or certify as destroyed, all Pre-Release Software and related documentation. "License Period" means (subject to earlier termination as set forth in Section F below) the period of time beginning with the date upon which You first install the Pre-Release Software and ending upon the earliest occurrence of any of the following events: (i) the Pre-Release Software is released and made generally available for licensing by the public; or (ii) Timesys notifies You of its intent to cancel this EULA as it applies to Pre-Release Software (in which case the License Period will end thirty (30) days after such notification)

B. RESTRICTIONS

  1. TimeSys Software: Except as expressly set forth above, You may not: (i) use, copy, disclose, distribute, modify, or create derivative works of the Timesys Software; (ii) use the Timesys Software for outsourcing, time-sharing, for the benefit of any third party, or in competition with Timesys; (iii) cause or allow any portion of the Timesys Software to be subject to any open source license except to the extent that such portion is provided to You by Timesys under the terms of such open source license; (iv) decompile, disassemble or reverse engineer the Timesys Software, or permit any third parties, including end-users of Your Application, to do so; (v) export or import the Timesys Software or Your Application in violation of any applicable U.S. laws or regulations, including U.S. Department of Commerce Export Administration Regulations, or permit any end-user to do so; or (vi) permit end-users to copy, distribute, transfer, modify or create derivatives of the Timesys Software, except as part of Your Application in a manner consistent with Your obligations as set forth in this EULA.

  2. Records/Audit: You shall maintain complete and accurate records of each of Your employees and contractors that use the Timesys Software for a period of three (3) years. In the event that one or more of such employees or contractors is no longer employed by You, You may substitute a replacement, provided that such records are promptly updated accordingly. Timesys may inspect such records upon request at any time during the term of this EULA and for three years thereafter.

  3. Interoperability:In the event that You require information to achieve interoperability of the Timesys Software with another software program or hardware device, You shall request such information as necessary from Timesys. Timesys may, in its sole discretion, provide such information, and shall, in any case, respond to any such request with information concerning its decision.

  4. General: All rights not expressly granted herein are expressly reserved.

C. FEES AND OTHER CONSIDERATION

  1. The license granted to You in this EULA for Timesys Software is contingent upon Your payment to Timesys of the Subscription or License Fees for the Timesys Software, if applicable, in accordance with Timesys' pricing policies current as of the date of Your acquisition of the Timesys Software.

  2. Subscription Fees, License Fees and any applicable Annual Technical Support Fee for Your first year of Timesys Software use are due and payable in advance of Your use of the Timesys Software, unless other payment terms are mutually agreed by both parties in writing.

  3. Timesys reserves the right to charge interest at a rate of 1.5% per month or the highest rate allowable by law on any undisputed past due balances.

  4. Any applicable License Fees and Technical Support Fees are exclusive of any applicable taxes. You agree that You shall be responsible for the payment of all taxes related to the Timesys Software, Your Application, and this EULA, other than taxes based upon Timesys' income.

  5. Additional Consideration - Publicity: In further consideration of the licenses granted hereunder, You agree to permit Timesys to use Your name and trademarks to identify You as a Timesys customer on Timesys' web site(s), in Timesys marketing materials and in other sales and marketing activities. Timesys agrees to cooperate with You in reasonable publicity efforts involving the Timesys Software, such as, for example, media releases and marketing materials in accordance with Your reasonable request.

D. INTELLECTUAL PROPERTY RIGHTS

  1. General: Timesys holds and retains all right, title and interest in and to the Timesys Software, the related source code, any and all modifications to or derivatives of the Timesys Software, and any and all associated patents, copyrights, and other intellectual property rights. All Timesys Software is unpublished and confidential.

  2. Third Party: Certain portions of the Timesys Software may be subject to the ownership rights of Timesys' licensors and incorporated under license to Timesys. You will find any relevant information about third party ownership rights in the relevant notice, license and/or copyright files included with the programs. You retain all ownership to Your Application.

  3. Government: If you are acquiring the Timesys Software on behalf of the U.S. Government, the following provisions apply: (i) if the Timesys Software is supplied to DoD or any related agency or service, the Programs are classified as "Commercial Computer Software" and the Government is acquiring only rights as set forth in this EULA; and (ii) if the Timesys Software is supplied to any other unit or agency of the U.S. Government, the Timesys Software is considered "restricted computer software" and the Government's rights in the Timesys Software are set forth in the Federal Acquisition Regulations. The Contractor for the Programs is Timesys Corporation, 428 Forbes Avenue, Suite 2100, Pittsburgh, Pennsylvania 15219.

  4. Open Programs: This EULA does not apply to the Linux kernel or any other software tools, drivers or other components identified as subject to an open source license in the relevant notice, license and/or copyright files included with the programs (collectively the "Open Programs"). Open Programs may be supplied in the same electronic file transmission as the Timesys Software, but are separate and distinct programs. The Timesys Software is not subject to the GPL or any other open source license.

  5. Marks: You and Timesys hereby grants to the other the non-transferable, non-assignable, revocable right and license to use the other's name and trademarks ("Marks") solely in fulfillment of obligations and exercise of rights under this EULA. Each party shall adhere to each other's policies regarding use of the other's Marks, and shall retain the right to revoke permission to use such Marks.

  6. Injunctive Relief: You hereby acknowledge and agree that the Timesys Software and related source code are proprietary and confidential to Timesys and that the Timesys Software and related source code contain valuable Timesys trade secrets, the disclosure of which would cause Timesys irreparable harm for which monetary compensation would be inadequate. You therefore further agree that if You breach Your obligations under this EULA, Timesys shall be entitled to injunctive relief from a court of competent jurisdiction without the need to post any bond or demonstrate actual damages.

E. TECHNICAL SUPPORT

  1. TimeSys Technical Support consists of the support described on the TimeSys web sites, including www.timesys.com and https://linuxlink.timesys.com/support/policy/

  2. Installation of the TimeSys Software may require entry of specific key codes issued by TimeSys to You. You agree to the use of these key codes in accordance with this EULA and with the Terms of Service for the TimeSys Service, to hold these key codes in confidence and to not disclose them to any third parties.

F. TERM AND TERMINATION

  1. This EULA shall become effective on the date of Your first use of the TimeSys Software and shall remain in full force and effect until terminated under this Section F.

  2. The rights granted under the License Grant section of this EULA shall automatically terminate if You breach any of the provisions contained herein, including any failure to pay license fees, if applicable. You may terminate the License Grant section of this EULA at any time upon notice to Timesys. Such termination will not entitle You to any refund of any fees. All other provisions of this EULA shall survive any such termination.

G. NO WARRANTY

  1. The TimeSys Software is provided "AS IS" without warranty of any kind, express or implied, including without limitation any implied warranties of merchantability, fitness for a particular purpose or non-infringement.

  2. Pre-Release Software may not be fully tested, debugged, or otherwise readied for production use. Any information provided by TimeSys regarding the development status of Pre-Release Software is for Informational Purposes Only.

H. INDEMNIFICATION

You agree to indemnify, defend and hold Timesys harmless from and against any and all claims, suits, damages, costs and expenses arising from Your use of the Timesys Software, howsoever arising.

I. INFRINGEMENT

  1. Timesys will defend or settle, at its option and expense, any action brought against You in the United States, Canada, Japan, or member state of the European Union which alleges that any standard, generally supported Timesys Software infringes a patent or copyright or misappropriates a trade secret in such jurisdiction. Timesys will pay any costs and damages finally awarded against You that are attributable to the action.You understand and agree that as conditions to Timesys' obligations under this section must: (a) notify Timesys promptly in writing of the action; (b) provide Timesys all reasonable information and assistance to settle or defend the action; and (c) grant Timesys sole authority and control of the defense or settlement of the action.

  2. If a claim is made under Subsection 1 Timesys may, at its option and expense, either: (a) replace or modify the Timesys Software so that it becomes non-infringing; (b) procure for You the right to continue using the Timesys Software; or (c) require the return of the Timesys Software and refund to You any fees paid, less a reasonable allowance for use.

  3. Timesys has no liability to You if the claim is based upon: (a) the combination of the Timesys Software with any product not furnished by Timesys; (b) the modification of the Timesys Software other than by Timesys or as directed by Timesys; (c) the continued use of the infringing Timesys Software when Timesys has provided You with a current unaltered release of a non-infringing Timesys Software in accordance with Subsection 2(a); (d) the use of Timesys Software as part of an infringing process; (e) a product that You make, use, or sells; (f) any Trial Software or Pre-release Software; (g) any third party software provided by Timesys' licensors who do not provide such indemnification to You or (h) infringement by You that is deemed willful. In the case of (h), You shall reimburse Timesys for its reasonable attorney fees and other costs related to the action.

  4. THIS SECTION I IS SUBJECT TO SECTION J AND STATES THE ENTIRE LIABILITY OF TIMESYS AND ITS LICENSORS AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED PATENT OR COPYRIGHT INFRINGEMENT OR TRADE SECRET MISAPPROPRIATION BY ANY TIMESYS SOFTWARE LICENSED UNDER THIS AGREEMENT

J. LIMITATION OF LIABILITY

To the maximum extent permitted by applicable law and notwithstanding the failure of any remedy to fulfill its essential purpose: In no event shall Timesys, Timesys' officers, directors, employees, agents, or distributors be liable to You or any other party for any loss or damages or legal fees arising from or related to the use of the Timesys Software, howsoever arising, or any damages related to this EULA in excess of the amount of fees paid hereunder in the twelve (12) months preceding the event giving rise to the claim; and, in no event shall Timesys, Timesys' officers, directors, employees, agents, or distributors be liable for any indirect, special, punitive, or consequential damages, including without limitation, loss of profits, howsoever arising, even if informed of the possibility of such damages.

K. DISPUTE RESOLUTION

In the event of a dispute between You and Timesys arising in connection with this EULA, such dispute shall be resolved, at Timesys' sole option, by binding arbitration under the rules and auspices of the American Arbitration Association. Arbitration shall take place in the Commonwealth of Pennsylvania, U.S.A. The foregoing shall not prevent Timesys from seeking applicable injunctive relief in a court of competent jurisdiction.

L. CHOICE OF LAW AND FORUM

This EULA shall be governed for all purposes by the laws of the Commonwealth of Pennsylvania, excluding choice of law provisions. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this EULA may be brought against You or Timesys in any of the courts of the Commonwealth of Pennsylvania, including United States District Courts. You consent to the jurisdiction of such courts in any such action or proceeding and waive any objection to venue laid therein. Process in any action or proceeding referred to in the preceding sentence may be served on either party to this EULA anywhere in the world. You expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this EULA.

M. GENERAL

This EULA contains the entire agreement and understanding between You and Timesys. Additional or conflicting terms on any purchase order or other document issued by You will have no force or effect against Timesys. This EULA may not be modified or appended except by an agreement in writing signed by the party against whom enforcement is sought. If any provision of this EULA is held to be invalid or unenforceable under any circumstances, its application in any other circumstances and the remaining provisions of this EULA shall not be affected. This EULA may not be assigned by You without the prior written consent of Timesys. No waiver by either party of any rights under this EULA will be effective unless such waiver is in a writing signed by the party against whom enforcement is sought. Any notices relating to this EULA should be sent via receipted delivery to Timesys Corporation, 428 Forbes Avenue, Suite 2100, Pittsburgh, Pennsylvania 15219 USA.