End-User License Agreement

UNLESS SUPERSEDED BY A SIGNED LICENSE AGREEMENT BETWEEN YOU AND EARTHSOFT, EARTHSOFT IS WILLING TO LICENSE SOFTWARE, DATA, WEB SERVICES, OR DOCUMENTATION TO YOU ONLY IF YOU ACCEPT ALL TERMS AND CONDITIONS CONTAINED IN THIS LICENSE AGREEMENT. PLEASE READ THE TERMS AND CONDITIONS CAREFULLY. SOFTWARE, DATA, OR DOCUMENTATION WILL NOT BEGIN DOWNLOADING TO OR INSTALL ONTO YOUR COMPUTER SYSTEM UNTIL YOU HAVE MANIFESTED YOUR ASSENT TO THE TERMS AND CONDITIONS OF THE LICENSE AGREEMENT BY CLICKING I accept the License Agreement BELOW. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS AS STATED, THEN EARTHSOFT IS UNWILLING TO LICENSE SOFTWARE, DATA, WEB SERVICES OR DOCUMENTATION TO YOU AND YOU SHOULD CLICK THE I do not accept the License Agreement BELOW AND RETURN THE PACKAGE, INCLUDING ALL MEDIA AND MATERIALS, IF ANY, TO EARTHSOFT OR ITS AUTHORIZED RESELLER. FOR A REFUND, YOU MUST RETURN THE COMPLETE PRODUCT PACKAGE TO THE PLACE WHERE YOU OBTAINED THEM.

End User License Agreement (EULA)

IMPORTANT - READ CAREFULLY
This End User License Agreement (EULA) is a legal agreement between you (Licensee) and EarthSoft, Inc. (EarthSoft) for the EarthSoft software that accompanies this EULA, which includes associated media and EarthSoft internet-based services (Software). An amendment or addendum to this EULA may accompany the Software. YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR USING THE SOFTWARE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS EULA, DO NOT INSTALL, COPY OR USE THE SOFTWARE. FOR SOFTWARE RECEIVED ELECTRONICALLY, YOU MUST REMOVE EVERY FILE OBTAINED THEREFROM; IF YOU RECEIVED A PHYSICAL PACKAGE, YOU MUST REMOVE THE INSTALLED SOFTWARE AND PROMPTLY RETURN THE PACKAGE, INCLUDING ALL MEDIA AND MATERIALS, IF ANY, TO EARTHSOFT OR ITS AUTHORIZED RESELLER. FOR A REFUND, YOU MUST RETURN THE COMPLETE PRODUCT PACKAGE TO THE PLACE WHERE YOU OBTAINED THEM.

1.	DEFINITIONS.
The following definitions apply to the terms as used in this EULA:
a.	Documentation means all printed and digital materials received or accessed by Licensee in conjunction with or support of the licensed EarthSoft product, including but not limited to, all user reference materials, help files, training materials or any other proprietary technical information.
b.	Enterprise means a specific named entity (i.e. corporation, company, organization, unit of government) and is inclusive of all internal representatives and authorized agents, their data, equipment, facilities, resources, and associated rights, individually or collectively as may be herein referred to; and is exclusive of all individuals, entities, data, equipment, facilities and resources that are not internal to, nor possess rights from the named entity.
c.	Software means all or any portion of EarthSofts licensed products, proprietary data management system software technology, computer software code, components, dynamic link libraries, or programs delivered or received on any media in any format, including digital files accessed or downloaded from an authorized EarthSoft web site, and including all copies, backups, upgrades, updates, patches or fixes supplied under this EULA.
d.	"Software services" means services that you provide to customers that make available, display, run, access, or otherwise interact with the EQuIS schema or licensed products. These services could be provided from one or more data centers through the Internet, a telephony network or a private network on a rental, subscription or services basis, regardless if you receive a fee for or not. Software services exclude any services involving installation of a licensed product directly on any device to permit a customer to interact with the licensed product. Software services include Software as a Service (SaaS), Application Services Provider (ASP), or Hosting EQuIS services; all EQuIS licenses strictly prohibit this without a separate EarthSoft SPLA.
e.	Term License means a license provided for use in a limited time period or on a subscription or transaction basis.
f.	"You" and "your" means Licensee and any of your authorized affiliates to whom you have granted rights under this agreement. "We," "us," "our" and "EarthSoft" means the EarthSoft company and any of our affiliates. "Parties" refers to both you and us, and "party" may be used to refer to you or us, individually.

2.	RESERVATION OF OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS.
EarthSoft reserves all rights not expressly granted to you in this EULA. The Software is protected by copyright and other intellectual property laws and treaties. Unauthorized copying is expressly forbidden. You may be held legally responsible for any copyright infringement that is caused or encouraged by your failure to abide by the terms of this EULA. EarthSoft owns the title, copyright, and other intellectual property rights in the Software, Documentation, and written materials.

The Software is licensed, not sold.
a.	This Software is licensed only to you, the Licensee, and may not be transferred to anyone without the prior written consent of EarthSoft. Any users of the Software shall be bound by the terms and conditions of this EULA. In no event may you transfer, assign, rent, lease, sell, or otherwise dispose of the Software on a temporary or permanent basis except as expressly provided herein.
b.	You must maintain a current EarthSoft Software Maintenance Agreement (SMA) in order to receive EarthSoft web services, help desk/technical support and all upgrades, fixes, and patches within the particular family of EQuIS program(s) (MS Access, MS SQL Server, or Oracle) covered under the SMA. The SMA shall be renewed annually and must be kept current for Licensee to receive further releases of the Software.
c.	You may only distribute EQuIS databases in their native database format to other EQuIS 5 licensees with a current EarthSoft SMA. Licensee may export EQuIS data to Excel, Word, or a flat file format, or another database format, or any graphics form, for transfer and sharing EQuIS 5 data with non-EQuIS users or systems.

3.	GRANT OF LICENSE.
Subject to the terms and conditions of this EULA, EarthSoft grants to Licensee a personal, nonexclusive, nontransferable license solely to:
a.	Use the type and number of copies of Software (i) for which the applicable license fees have been paid, (ii) for Licensees own internal use, (iii) at a Licensee facility, and (iv) in accordance with the license configuration on file as authorized by EarthSoft or its authorized distributor.
b.	Access and use any EarthSoft web site resources made available to Licensee for Licensees own internal use, provided that Licensee complies with EarthSofts terms of use policy specified therein. All password or controlled access information provided by EarthSoft shall be treated as EarthSoft confidential information.
c.	Use the Documentation for internal, non-commercial reference purposes only.
Subject to the foregoing, EarthSoft grants Licensee the right to provide access to and use of the Software to any employee, consultant, or contractor of Licensee exclusively for the benefit of Licensee. Licensee shall be responsible for compliance by employees, consultants, and contractors with this EULA. Access to or use of Software by employees, consultants, or contractors, not exclusively for the benefit of Licensee, is expressly prohibited.
If Licensee has been authorized by EarthSoft to participate in an educational licensing program, Licensee agrees to use Software solely for educational, research and academic purposes that are noncommercial in nature; and Licensee shall not use Software for any commercial or profit generating activity.
THIS IS A SINGLE USER LICENSE FOR INSTALLATION ON A SINGLE PROCESSOR, UNLESS YOU HAVE SPECIFICALLY PAID FOR A MULTIPLE USER OR ENTERPRISE LICENSE.

4.	SCOPE OF USE.
Licensee may
a.	Use and display this copy of EarthSoft Software on any computer at a Licensee facility.
b.	Install and store Software on electronic storage device(s).
c.	Make one (1) copy of Software for archival purposes.
d.	Make routine computer backups.
Licensee may not
a.	Sell, rent, lease, sublicense, lend, assign, host or otherwise time-share Software. Licensee shall not act as a service bureau or commercial application services provider (ASP) that allows third-party access to Software or Software services without obtaining a separate hosting license from EarthSoft in accordance with the EarthSoft Services Providers License Agreement (SPLA).
b.	Redistribute Software to unauthorized third parties, in whole or in part, including, but not limited to, the EQuIS data structure, tables, extensions, components, or DLLs without the prior written approval of EarthSoft.
c.	Modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Software.
d.	Separate, detach or un-bundle individual or component parts of Software for independent use.
e.	Modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Documentation or written materials (subject to applicable law).
f.	Circumvent, or to the maximum extent permitted by applicable law, attempt to circumvent, the technological measure(s) that control access to, log, or otherwise measure Software activity.
g.	Redistribute Software registration keys, license authorization file(s), developer license file(s), web site access information, or other proprietary or confidential information to unauthorized third parties.
h.	Remove, obscure, or omit any EarthSoft or its licensors patent, copyright, trademark, or proprietary rights notices contained in or on Software, Documentation, data, file or web page.
i.	Use Software or EarthSoft web based services to transfer or exchange any material where such activity is prohibited by intellectual property laws or any other applicable laws.
j.	Use Software in a network or multiple user system or by more than one user at a time, unless you have paid for and obtained separate Software license rights for each terminal or workstation from which the Software will actually be concurrently accessed, or you have paid for and obtained an appropriate enterprise or network version of Software license.

5.	TERM AND TERMINATION.
This EULA is effective and binding upon acceptance; it shall supersede and replace all previous EULA in effect at the time of acceptance. This EULA and any Software license granted hereunder shall continue until (i) such time that Licensee elects in writing to discontinue use of Software and terminates the license; (ii) expiration of a Term License; or (iii) either party hereto terminates the license for a material breach that is not cured within ten (10) days of written notice to the other party, except that termination is immediate for a material breach of a nature that is impossible to cure, including breaches of Licensees obligations related to confidentiality or EarthSofts proprietary rights. When this agreement terminates or expires, your rights under this agreement will automatically terminate. Upon termination of a license, Licensee shall immediately stop using, uninstall, remove and return all Software, Documentation, and confidential information, and any copies thereof, received under this agreement.  If directed by EarthSoft, Licensee shall destroy such materials identified by EarthSoft and deliver certification of such actions to EarthSoft. Furthermore, upon expiration or termination for your breach, there will be no refund of any amounts paid by Licensee relating to such terminated or expired license.

6.	LIMITED WARRANTY.
a.	EarthSoft warrants to the original Licensee that (i) the unmodified Software will perform substantially in accordance with the accompanying materials and (ii) media on which the Software is recorded is free from defects in materials and workmanship under normal use and service for a period of ninety (90) days from the date of the download of the Software or delivery as evidenced by a copy of the receipt.  We do not warrant and hereby disclaim that Software, Documentation or services will meet Licensees needs; that your operation of the Software will be uninterrupted, error-free, fault-tolerant, or fail-safe; or that all nonconformities can or will be corrected.
b.	If an implied warranty or condition is created by your state or jurisdiction and federal, state or provincial law prohibits disclaimer of it, you may also have an implied warranty or condition, but only as to defects discovered during the period of this Limited Warranty (ninety days).
c.	This EULA provides no warranty or condition of any kind for any defect(s) discovered after the ninety-day Limited Warranty period. Any supplements or updates to the Software, including without limitation any material provided to you after expiration of the ninety-day Limited Warranty period, are not covered by any warranty or condition, express, implied or statutory.
d.	Your exclusive remedy and our entire liability for breach of the Limited Warranty, or for any other breach of this EULA or for any other liability relating to the Software shall be limited at our sole discretion, to (i) replacement of any defective media; (ii) repair, correction, or assistance with a workaround for Software as provided in the SMA; or (iii) return of the license fees paid by you for Software or Documentation that does not meet our Limited Warranty, provided that you uninstall, remove and return or destroy all copies of such Software or Documentation.
e.	This Limited Warranty is void if failure of the Software has resulted from accident, abuse, improper or abnormal use, unauthorized use, unauthorized or disallowed modifications to the Software, from a virus, or due to any activity that violates this EULA, in which case EarthSoft shall have no responsibility or liability therefore whatsoever and such license shall be terminated immediately, without remedy, compensation or further EarthSoft obligation of any kind.


THE LIMITED WARRANTY STATED ABOVE IS THE ONLY WARRANTY MADE TO YOU AND IS PROVIDED SPECIFICALLY TO BE IN LIEU OF ANY OTHER EXPRESS, IMPLIED, OR STATUTORY WARRANTY OR OTHER OBLIGATION WHATSOEVER, IF ANY, CREATED BY ANY ADVERTISING, DOCUMENTATION, INFORMATION, ADVICE, OR OTHER COMMUNICATIONS, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR THE LIMITED WARRANTY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EARTHSOFT PROVIDES THE SOFTWARE, DOCUMENTATION, AND SUPPORT SERVICES AS IS AND WITH ALL FAULTS, HEREBY DISCLAIMING ALL OTHER WARRANTIES, CONDITIONS, ASSURANCES, AND OBLIGATIONS WHATSOEVER WITH REGARD TO THE SOFTWARE, DOCUMENTATION AND SERVICES PROVIDED (OR FOR THE FAILURE TO PROVIDE), OR AS MAY OTHERWISE ARISE OUT OF THE USE, OR RELIANCE ON THE USE OF THE SOFTWARE.


7.	ADDITIONAL WARRANTY LIMITATIONS AND DISCLAIMERS.
a.	Software, services, and Documentation are not designed, manufactured, operated, or intended for use in environments or for applications that may lead to death, personal injury, or damage to the built or natural environment. Any such use shall be at Licensees own risk, cost and liability.
b.	Both parties expressly acknowledge and agree that the internet is a network of private and public networks and that (i) the internet is not a secure infrastructure, (ii) neither party has control over the internet, and (iii) neither party is liable for damages under any theory of law related to the operation or discontinuance of operation of any portion of the internet or web based services.
c.	There is no warranty or condition of title, quiet enjoyment, quiet possession, correspondence to description or non-infringement with regard to the Software, Documentation or services.
d.	Licensee assumes all risk as to the quality and performance of any and all evaluation software, samples, hot fixes, or beta releases; they are strictly provided AS IS AND WITH ALL FAULTS.

8.	INFRINGEMENT INDEMNITY.
a.	EarthSoft shall defend, indemnify and hold harmless Licensee from and against any claims, actions, or demands by a third party against Licensee alleging that the use of the Software by Licensee infringes a valid patent or copyright of that third party which is enforceable in the United States.  EarthSofts responsibility under this section requires that (i) Licensee promptly notifies EarthSoft in writing of the claim; (ii) Licensee immediately provides EarthSoft with all related information and documents describing or otherwise associated with the allegations of infringement; (iii) EarthSoft has sole control of the defense of any actions and negotiations related to the defense or settlement of any claim; and (iv) Licensee fully cooperates with EarthSoft in the defense of the claim.
b.	EarthSoft shall have no obligation to defend Licensee or to pay any costs, damages or attorneys fees for any claims or demands alleging direct or contributory infringement by the Software due to (i) the combination of or integration with a product, process, or system not supplied by EarthSoft or to the extent such claim is based on modifications to the Software requested by Licensee; (ii) material alteration of the Software by anyone other than EarthSoft; (iii) use of Software after Licensee has been notified of alleged infringement; or (iv) use of Software after expiration or termination of license.
c.	If Software is found by a court of competent jurisdiction to infringe a patent, copyright, or trademark, or EarthSoft determines that an infringement may have occurred, EarthSoft may, in its sole discretion, (i) obtain rights for Licensee to continue using Software; (ii) modify the allegedly infringing elements of Software so as to be non-infringing while maintaining substantially similar functionality; or (iii) terminate this license and refund the license fees paid by Licensee for this Software license based on the pro rata amount of the license fee if the license is for a specific term, or based on a three-year amortization if the license is perpetual.
d.	In no event shall the indemnification set forth in this EULA apply to any demonstration, evaluation or testing software, samples, hot fixes, or beta releases of the Software.
THE FOREGOING STATES THE EXCLUSIVE REMEDY OF LICENSEE AND THE ENTIRE OBLIGATION OF EARTHSOFT WITH RESPECT TO INFRINGEMENT OR ALLEGED INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND OF ANY THIRD PARTY.


9.	LIMITATION OF DAMAGES
IN NO EVENT WILL EARTHSOFT BE LIABLE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFIT, REVENUE, DATA OR GOODWILL, EVEN IF EARTHSOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  



10.	LIMITATION OF LIABILITY.
EXCEPT FOR EARTHSOFTS RESPONSIBILITIES FOR INFRINGEMENT INDEMNITY, EARTHSOFTS TOTAL CUMULATIVE LIABILITY TO LICENSEE UNDER THIS EULA FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT PAID BY LICENSEE  TO EARTHSOFT FOR SOFTWARE, DOCUMENTATION OR SERVICES PURSUANT TO THIS EULA DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE TIME THE CLAIM ACCRUED.

By installing, accessing, using or relying in any way on the use of the Software, you are expressly acknowledging, accepting, and agreeing to the following:
a.	The Limitation of Damages Liabilities, Disclaimers, and Limited Warranty set forth in this EULA will apply regardless, and in lieu of any other limits or remedies that may be afforded you by applicable law in any jurisdiction; and that same applies regardless if you have or have not accepted Software, Documentation or services from EarthSoft at any time.
b.	The entire risk as to the performance of the Software is assumed by you and that neither EarthSoft nor any of its employees, agents, contractors, or anyone else involved in the creation, production, sale or delivery of the Software shall be liable beyond the limitations specified herein to you or to anyone, regardless if they have been advised of damages or the possibility of any future damage.
c.	EarthSoft has set its prices and entered into this License Agreement in reliance on the limitations set forth in this EULA; that this is a fair maximum risk allocation between the parties; and that it is the economic basis of the relationship, however created, between the parties.
THE FOREGOING STATES THE ENTIRE LIMITATION OF LIABILITY OF EARTHSOFT AND SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, FOR ANY APPLICATION OF LIABILITY TO, WITH OR FOR ANY PARTY.

11.	LICENSEE RESPONSIBILITIES.
a.	Licensee is solely responsible for complying with all U.S. export control laws and regulations of every applicable kind at all times, and in every regard of the license rights granted herein. Licensee expressly acknowledges this duty and agrees to not export, transfer, release, or in any way use or facilitate the use of Software, Documentation or services to any U.S. embargoed country (or to a national or resident of any U.S. embargoed country) or to any other entity in violation of U.S. law.
b.	License fees are quoted to Licensee net to EarthSoft, and are exclusive of any and all taxes and fees of every sort; Licensee is solely responsible for all sales tax, use tax, value-added tax, property tax, duties, customs, tariffs, shipping, handling and every other charge that may be lawfully assessed on this transaction at this time or anytime hereafter.
c.	All Software, Documentation or other information provided by EarthSoft to Licensee under this EULA is Confidential Information entitled to protection.  Licensee will not disclose to any third party or use in any manner, directly or indirectly, any Confidential Information either during the term of this EULA or thereafter except as expressly authorized by this EULA.  This Section will not apply to information that was generally known to the public at the time of receipt by the Licensee or that is made available to the general public by EarthSoft.
d.	Licensee acknowledges and agrees that a breach of this EULA by Licensee may cause irreparable damage; and that in the event of such breach, in addition to any and all remedies at law, EarthSoft shall have the right to seek and immediately receive as relief, an injunction, specific performance, or other equitable remedy in any court of competent jurisdiction without any requirement to post bond or prove injury.
licensee shall indemnify, defend, and hold earthsoft harmless from any and all claims, judgements, settlements or obligations arising from any duty, responsibility, action or error, failure or omission of licensee.

12.	SOFTWARE MAINTENANCE SERVICES

Unless Licensee has executed a separate Software Maintenance Agreement with EarthSoft, maintenance services will be provided to Licensee under the terms of this section.  EarthSoft will support/maintain the Software, including providing Licensee with all updates, fixes and patches for the Software.  Software support and maintenance will only apply to unmodified Software and to commercially released, updated versions of the Software. Software updates are provided only for standard hardware platforms and operating systems supported by EarthSoft as described in the Software documentation. Licensee is responsible for making or arranging for updates to interfaces for nonstandard devices or custom applications.

EarthSoft will provide reasonable amounts of support to Licensee for the installation and maintenance of EarthSoft Software, assistance in solving problems arising from the use of the Software, hardware interfacing of peripheral devices, and logging of enhancement requests and bugs submitted by Licensee.  Licensee will designate one (1) point of contact (POC) to call the EarthSoft Help Desk for support services; EarthSoft Help Desk will generally provide a response within 12 business hours for serious or critical software problems. Additional POCs and/or alternate response times may be negotiated and must be specified in the EarthSoft quotation in order to be binding. If Licensee does not purchase and annually renew maintenance services, it will not be entitled to, and EarthSoft will not provide, installation assistance, Help Desk support, further releases of the Software, or any other maintenance service or benefit.

The initial term of this Agreement shall be for twelve (12) consecutive months at the fees noted in the EarthSoft quotation. Thereafter, Licensee may continue the service for maintenance, quoted annually for the Software included in the licensed configuration on file with EarthSoft. Should Licensee decide to extend maintenance services, Licensee shall issue a purchase order in advance of the renewal date at the quoted price; upon receipt of payment, maintenance services will continue for twelve (12) months to the next renewal date. Payment is due annually in advance. Licensee agrees to pay EarthSoft invoices within thirty (30) days of receipt.

EarthSoft product upgrades will be announced via the EarthSoft Community Center web page, EQuIS Users Group and through email notification to all POCs of Licensees under current maintenance.

From time to time, you may require the assistance of Help Desk where you desire to submit data to EarthSoft Help Desk. This is usually accomplished via EarthSofts support web page or a secure FTP account. If upon review of your data, it is determined that you have corrupt, inaccurate or problem data or have modified the EQuIS database, you shall be charged on an hourly basis (at least  hour) and agree to pay EarthSoft at the then-current rate for data analysis.

Licensee may contact EarthSoft Help Desk for technical support at:

Telephone: (800) 649-8855  (503) 345-0212
Hours: 8:00 AM - 9:00 PM EST 
Email: support@earthsoft.com <mailto:support@earthsoft.com> 

13.	GENERAL PROVISIONS.
a.	Software, Documentation and services are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at 52.227-7013. The Contractor/Manufacturer is EarthSoft, Inc., P O Box 1376, Concord, MA 01742-1376 USA.
b.	The failure of either party to enforce any provision of this EULA shall not be deemed a waiver of any of the provisions or of the rights of such party thereafter to enforce that or any other provision. A waiver of any breach of this agreement is not a waiver of any other breach. Any waiver must be in writing and signed by an authorized representative of the waiving party.
c.	The parties agree that if a court holds any provision of this agreement to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect and the parties will amend the agreement to give effect to the stricken clause to the maximum extent possible.
d.	Sections of this agreement that, by their terms, require effect or enforcement after the termination or expiration of this agreement will survive, including RESERVATION OF OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS, DISCLAIMERS, LIMITATIONS OF DAMAGES, LIMITATION OF LIABILITY, LICENSEE RESPONSIBILITIES and these GENERAL PROVISIONS.
e.	This agreement will be governed by and construed in accordance with the laws of the State of Delaware, U.S.A. and applicable federal laws of the United States; any disputes shall be resolved in the State of Delaware. Furthermore, any action to enforce this agreement will be filed in the State of Delaware. This choice of jurisdiction and venue does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
f.	Any general terms and conditions you have in a purchase order or other documents do not apply. This agreement constitutes the entire agreement and understanding between the parties and supersedes any prior agreement or understanding whether oral or written, relating to the subject of this EULA. This EULA may only be modified by a written agreement signed by EarthSoft.
g.	EarthSoft is not responsible for nonperformance or delay in performance under this EULA due to any force majeure event, including without limitation acts of God, acts of government, wars, civil disturbances, strikes or other labor unrest, telecommunications failures or other cause beyond the reasonable control of EarthSoft.

Should you have a question about this agreement or wish to contact us, PLEASE email us at support@earthsoft.com <mailto:support@earthsoft.com> or write to us at: EarthSoft, Inc., P O Box 1376, Concord, MA 01742-1376 USA.
