END-USER LICENSE AGREEMENT FOR DATACARD CORPORATION SOFTWARE & FIRMWARE

IMPORTANT-READ CAREFULLY:  This End-User License Agreement ("EULA") is a legally-binding contract between you (the licensee, either as an individual or a corporate entity) and DataCard Corporation (the Licensor, referred to as "Datacard") for the software that accompanies this EULA, associated media, documentation and any firmware  (collectively, the "Software").  For purposes of this EULA the term Datacard shall include where applicable the licensors of Datacard, who shall be third party beneficiaries hereof.  IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS CONTAINED IN THIS EULA YOU MUST COMPLETELY REMOVE THE SOFTWARE FROM THE COMPUTER SYSTEM ON WHICH IT WAS INSTALLED AND PROMPTLY RETURN IT AND ALL COPIES TO DATACARD.  An amendment or addendum to this EULA may accompany the Software.    BY INSTALLING, COPYING OR USING THIS SOFTWARE YOU UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS OF THIS EULA. This EULA shall also be subject to the terms and conditions set forth in an attached sale agreement, quote and or Datacard sales order form (collectively the "Master Agreement") between you and Datacard.  This EULA may be issued in response to your purchase order, but in no event shall any terms or conditions of such purchase order override this EULA.

1. Installation.  Unless specified otherwise in the Master Agreement, Datacard is not responsible for installing the Software.

2. Grant of License.  Subject to your compliance with this EULA and, except for circumstances in which your use of this Software is solely for demonstration or evaluation purposes, your full payment of the appropriate fees as invoiced, and, if applicable, compliance with the terms and conditions set forth in a Master Agreement or quote, Datacard hereby grants you a revocable, limited, personal, perpetual, non-transferable, non-exclusive license to use the Software for your internal business purposes only unless and, in such case, only to the extent set forth in the Master Agreement or in Datacard documentation for the Software, which is the subject of this License.  No clause in this EULA shall be interpreted to contradict or narrowly construe provisions set forth in a Master Agreement.  You may make one (1) archival copy of the Software for general backup purposes.

3. Preemption. Terms and/or conditions and/or any specifications inserted by you in a purchase order in connection with the purchase of this Software license shall under no circumstances preempt the terms of this EULA and/or Master Agreement.

4. Installation and Use.  Except as may otherwise be set forth in the Master Agreement or where the Software is designed by Datacard to operate on a server and either your purchase order or Master Agreement provide for a server-based operation for the Software, you may only install the Software on one (1) IBM or compatible personal computer ("PC") which is either a standalone workstation, or a networked workstation that does not permit the Software to be shared with other networked workstations. If this Software is an upgrade, then it and the upgraded Software, constitutes a single copy of the Software for purposes hereof.  If this Software is provided as a demonstration copy, you may not make any copies, or distribute it in any manner.

5. Disaster Recovery Backup Installation and Use.  In the event this Software has been purchased for disaster recovery backup purposes, or is such that Datacard has explicitly permitted its use for disaster recovery backup purposes and such permission is provided in writing in the Master Agreement, you may install this Software copy on a PC or server for disaster recovery and pre-production testing purposes only.  The PC or server on which this Software is installed must be turned off at all times, except for (i) limited Software self-testing and patch management, (ii) pre-production testing, (iii) database synchronization between primary and disaster recovery databases or (iv) disaster recovery.  Except in the event of a disaster, the PC or server must be configured in such a way that it cannot be used in a production environment.

6. Ownership. You understand and acknowledge that the Software and all rights, title and interests therein (including without limitation all copyrights, patents, trade secrets and other intellectual property rights contained therein) are the sole property of Datacard, its suppliers, or licensors and that you receive no rights, title or interests in the Software, except as expressly set forth in this EULA. Without limiting the foregoing, you specifically agree that Datacard shall exclusively own and you hereby unconditionally assign to Datacard all rights to any and all modifications, enhancements, translations or adaptations of, or other changes to, the Software and any improvement or development based thereon, whether developed, created or paid for by you or on your behalf. All rights not expressly granted to you in this EULA are expressly reserved by Datacard.  This Software is protected by copyright and other intellectual property laws and treaties.

7. Audit.  Upon request, you will make available to Datacard such data as may be required to demonstrate your compliance with the terms and conditions of this EULA.

8. Separation of Components. The Software is licensed as a single product. Its component parts may not be separated for use on more than one (1) device.

9. Software Functionality.   The functionality of the Software is described in the Master Agreement, or if no such Master Agreement is applicable, then in the documentation accompanying the Software.

10. Restrictions.  Except as expressly stated herein, you may not (i) make copies, modify, translate, reverse engineer, decompile, disassemble or otherwise attempt to derive the source code from the Software, which will be provided to you in object code form only; (ii) create derivative works based on the Software; (iii) sublicense, rent, timeshare, lease, loan, sell, distribute, disclose, publish, assign, provide subscription services to or otherwise transfer or commercially exploit this EULA or the Software, in whole or in part; (iv) grant a security interest in, or (v) alter or remove any of Datacard's or Datacard's licensors' copyrights or proprietary notices or legends appearing on or in the Software.

11. Limited Warranties. Datacard warrants that the Software will perform in substantial compliance with written material provided by Datacard or with Datacard's specifications in effect at the time of purchase for a period of ninety (90) days from delivery.  Datacard does not warrant that use of the Software will be uninterrupted or error free. The remedy for breach of this limited warranty shall be limited solely to replacement media and documentation and shall not include any other damages. This limited warranty does not cover, and Datacard shall not be responsible for, any Software defects resulting from accident, abuse, misapplication or unauthorized repair, modifications, or enhancements to the Software.  DATACARD, ITS SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE DISTRIBUTORS AND DEALERS, SUPPLIERS, OR ANY OTHER PERSON, FIRM OR CORPORATION SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES OR EXPENSES RESULTING FROM ALTERATION OR UNAUTHORIZED USE OF THE SOFTWARE OR FROM THE UNINTENDED AND UNFORESEEN RESULTS YOU OBTAIN RESULTING FROM SUCH USE. DATACARD SPECIFICALLY DISCLAIMS ANY WARRANTIES REGARDING INTELLECTUAL PROPERTY INFRINGEMENT WITH REGARD TO ANY DEVELOPER'S KIT PROVIDED HEREUNDER.
ASIDE FROM THE EXPRESS WARRANTIES CONTAINED HEREIN DATACARD HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS AND/OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  IN NO EVENT SHALL DATACARD OR ITS SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE DISTRIBUTORS AND DEALERS, THIRD PARTY LICENSORS, SUPPLIERS, OR ANY OTHER PERSON, FIRM OR CORPORATION BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INTERRUPTION OF BUSINESS, LOSS OF PROFITS, DAMAGE TO REPUTATION), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF DATACARD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT SHALL DATACARD'S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF, OR RELATED TO, THE SOFTWARE, UNDER ANY THEORY OF LAW, EXCEED THE SUM OF ALL PAYMENTS YOU MADE TO DATACARD UP TO THE TIME THE CAUSE AROSE.

12. Intellectual Property Indemnity.  Except where this Software is being used by you exclusively for demonstration or evaluation purposes, in which case this Section 12 shall not apply, Datacard shall defend, at its expense, any action brought against you to the extent that it is based upon a claim that the Software, or any part thereof, infringes United States letters patent, copyrights, or trade secret rights, and Datacard shall pay those costs and damages finally awarded against you which are attributable to such claim, but Datacard's assumption of such defense and payments is conditioned upon the following: (a) that Datacard shall be notified immediately in writing by you of any knowledge or notice you have concerning such action or related claim, or the possibility thereof, (b) that Datacard shall have the sole control of the defense of any action on such claim and all negotiations for its settlement, and (c) that should the Software, or any part thereof, become, or in Datacard's opinion be likely to become, the subject of a claim of infringement of a United States letters patent, copyright, trade secret or other proprietary right, you will permit Datacard, at its sole option and expense, (i) to procure for you the right to continue using the Software, (ii) to replace or modify the same with new or rehabilitated Software so that the Software becomes non-infringing, or if Datacard is unable to reasonably perform either alternative (i) or (ii), then at the sole option of Datacard, (iii) to remove the Software after giving you thirty days prior written notice and reimburse you for the reasonable value of the Software. Such removal shall be at Datacard's expense. 
Datacard shall have no liability to you under any provisions of this section with respect to any claim, judgment or finding of patent, copyright or trade secret or other proprietary right infringement which is based upon: (a) the combination or utilization of the Software with equipment, supplies or devices not furnished by Datacard; (b) "method patent" infringement, with the exception of infringement arising from Datacard's own method patent; (c) use of the Software in any manner that is inconsistent with the purpose for which the Software was designed; (d) use of the Software in a manner inconsistent with the explicit provisions in Datacard's documentation for that Software (e) the relocation of the Software to a location other than that in which it was installed without Datacard's prior written approval; (f) modification of the Software in any manner without Datacard's explicit prior written approval, for such modification; or (g) the use in conjunction with the Software of devices, supplies or software provided by you. 
THE FOREGOING STATES THE ENTIRE LIABILITY OF DATACARD WITH RESPECT TO INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS OR OTHER PROPRIETARY RIGHTS ARISING OUT OF OR BASED UPON THE SALE OR USE OF THE LICENSED SOFTWARE AND DATACARD SHALL HAVE NO OTHER LIABILITY OR OBLIGATION TO YOU OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST BUSINESS OPPORTUNITY, LOST PROFIT, LOST EFFICIENCY, REPLACEMENT COSTS OR OTHER CONSEQUENTIAL OR INDIRECT LOSSES OR DAMAGES..

13. Confidential Information.  You acknowledge that the Software contains information that is confidential and proprietary to Datacard and its licensors.  Any information you learn while using, viewing, and reviewing the operation of the Software, and the capabilities of such items, is defined as Confidential Information falling within the terms of this EULA.  You agree to hold Datacard's Confidential Information in confidence, guard it with at least the same degree of care you employ with your own confidential information, but no less than a reasonable degree of care; use it only in such manner as is consistent with the terms of this EULA and/or Master Agreement and agree not to disclose it or exploit it for the benefit of any third party.  You agree that you will permit only those of your employees who have a need to know to have access to Datacard's Confidential Information.  You will not permit third parties to have access to the Software except as permitted herein or upon Datacard's express written authorization.  You further agree that you will not make for your own purposes or allow to be made for third parties, copies of documentation, operation or service manuals, drawings, software, schematics code or the like that Datacard may provide you with the Software nor permit the publication of any benchmark tests run on the Software without Datacard's express written permission.

14. Export. Regardless of any disclosure made by you to Datacard of an ultimate use site of the Software, you may not re-export or transfer, whether directly or indirectly, the Software, Confidential Information or any system containing the same to anyone or any location without first complying with the requirements of this EULA and/or any Master Agreement.   The Parties shall comply with all export control laws and regulations of the United States, including, but not limited to those laws and regulations administered by the U.S. Department of Commerce and the U.S. Department of Justice acting through the Office of Foreign Asset Control. Compliance shall be to the extent applicable to the Parties' respective activities under this Agreement. If the data provided under this agreement is controlled for U.S. export reasons such data will not be further disclosed, exported or transferred in any manner, to any other foreign national or any foreign country contrary to U.S. law.

15. Termination. You agree to discontinue the use of the Software immediately upon termination of this EULA.  The EULA shall automatically terminate without notice in the event you violate any material term herein, fail to perform any duty required hereunder, fail to pay the license fee as invoiced, or fail to comply with any legal prerequisites, formalities and/or material government regulations. You may terminate the EULA by either destroying the Software, including any and all copies, or returning it, and any and all copies to Datacard. Additionally, you agree to execute a Certificate of Destruction or Removal, which shall be provided to you by Datacard upon your written request, and promptly provide the same back to Datacard. Datacard shall not be required to refund any part of fees paid hereunder in the event you terminate the EULA.  Datacard shall not be required to pay you for any media costs associated with the copies of the Software you return to Datacard.

16. Severability. If any provision of the EULA shall be found by a court of competent jurisdiction unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from the EULA and shall not affect the validity and enforceability of the remaining provisions of the EULA.

17. Choice of Law and Venue.  This EULA shall be interpreted and governed by the laws of the State of Minnesota, USA, without regard to its conflicts of laws provisions. All actions or proceedings relating to it shall be exclusively brought in a court located in Hennepin County, State of Minnesota, USA, and the parties hereby consent to the exclusive personal jurisdiction of said courts and waive any objection to such venue.

18. Waiver.  No term of this EULA shall be considered waived and no breach excused by either party unless made in writing.  No consent, waiver or excuse by either party, express or implied, shall constitute a subsequent consent waiver or excuse.

19. Entire Agreement.  This EULA (including any Master Agreement, addendum, Software documentation, or amendment to this EULA, which is included with the Software) is the entire agreement between you and Datacard relating to the Software and they supersede all prior and/or other contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA. To the extent the terms of any Datacard policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control.  This EULA shall also have precedence over any accompanying Software documentation.

EULA 15.0 rev August 2011								


