SOTI® PocketController® Pro License Agreement.
For Computing Devices operating Microsoft® Windows® CE

PLEASE READ THE FOLLOWING SOFTWARE LICENSE AGREEMENT ("License") CAREFULLY BEFORE USING THE SOFTWARE. BY INSTALLING THE SOFTWARE, YOU ARE AGREEING TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE. TO ACKNOWLEDGE YOUR AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE, CLICK THE "AGREE/ACCEPT" BUTTON. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, CLICK "DISAGREE/DECLINE", DO NOT INSTALL OR USE THE SOFTWARE AND PROMPTLY EXIT THE SETUP SOFTWARE AND RETURN ALL ACCOMPANYING ITEMS (INCLUDING ALL FORMS OF) TO THE PLACE YOU OBTAINED THEM FROM.

1. DEFINITIONS

"Device" refers to any computing device/instrument.
"Documentation" means the manuals, documentation and all other reference materials provided with the Software by SOTI.
"You or Licensee" means the end user of the Software, who agrees on the terms and conditions of this license agreement and to whom this License is granted.
"Software" means the PocketController® Pro software and the following components:

• SOTI® PocketController® Pro Device Agent
• SOTI® PocketController® Pro Desktop Console

"SOTI" means the licensor of the Software with its principal place of business at 5770 Hurontario Street, Suite 1100, Mississauga, Ontario, Canada, L5R 3G5.

2. PROPRIETARY RIGHTS

The Software, the components and all related Documentation are licensed, not sold, to the Licensee by SOTI for use only under the terms of this License. SOTI reserves all rights not expressly granted to the Licensee.

The Software, including but not limited to the source code, its components, Documentation, design and structure, and any copies thereof is the proprietary property of SOTI and is protected by copyright laws and international treaty provisions. Title to the Software, or any copy, modification or merged portion of the Software, shall at all times remain with SOTI.

3. GRANT OF LICENSE

SOTI hereby grants, upon payment of the License fee, the Licensee a non-transferable, nonexclusive, worldwide, perpetual right to:
(a) Install and use the Software on the number of Devices this license is purchased for. This is not a concurrent use license for Devices;
(b) Make one copy of the Software solely for backup or archival purposes, or
(c) Transfer the Software to a single hard disk or other memory device provided the Licensee keeps the original solely for backup or archival purposes, or
(d) Transfer the Software to a single system, which includes a host computer with a hard disk and one Device, provided you keep the original solely for backup or archival purposes. The backup copy must include all copyright information contained in the original. You may not copy the written materials accompanying the Software.

4. FEES AND PAYMENT

4.1 Payment
Licensee will provide SOTI or its respective authorized representative with prompt payment in an acceptable form of payment such as, but not limited to, bank transfer, credit card, and company cheque. Such payments shall be in advance, monthly, annually or in accordance with any different billing frequency stated in the applicable order form.

It is the Licensee’s responsibility to ensure and maintain that all information for accounting, billing and technical purposes is current and accurate for services to be offered to the Licensee.

4.2 Suspension of Service and Acceleration
Unless otherwise documented and agreed to, if any amount owing by Licensee under this or any other agreement for SOTI® Software is thirty (30) or more days overdue, SOTI may, without limiting SOTI’s other rights and remedies, accelerate Licensee’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend SOTI’s Service to Licensee until such amounts are paid in full.

4.3 Taxes
Licensee is responsible for paying all taxes associated with purchases hereunder. If SOTI has the legal obligation to pay or collect taxes for which the Licensee is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Licensee, unless Licensee provides SOTI with a valid tax exemption certificate authorized by the appropriate taxing authority.

5. RESTRICTIONS

Except as and only to the extent expressly permitted in this License and by applicable law, the Licensee may not:

If the Licensee does any of the foregoing, your rights under this license will automatically terminate. Such termination shall be in addition and not in lieu of any criminal, civil or other remedies available to SOTI and/or its Suppliers.

Malware: Licensee represents, warrants and covenants that Licensee will not cause or knowingly allow harmful software to be stored on, transmitted, or used with the Software, including but not limited to, the generation or dissemination of computer viruses, Trojan horses, time bombs, denial of service attacks, key logging and other monitoring software, worms, logic bombs, or other code or programs whose effect is to negatively impact the operation or performance of the Software or the safety, security, or privacy of users or owners of the Software, or to negatively impact the operation or performance of the wireless networks with which the Software may interact ("Networks") or to permit unauthorized use of or access to such Networks. Licensee may not knowingly use Software in any way that could cause harm to the Software or the Networks or impair their use by others. Licensee may not use Software to attempt unauthorized access to any service, system, data, account, or Network.

6. CONFIDENTIALITY

6.1 Definition of Confidential Information
"Confidential Information" means all confidential information disclosed by a party (" Disclosing Party") to the other party (" Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Licensee Confidential Information shall include Licensee Data; SOTI’s Confidential Information shall include the Software; and Confidential Information of each party shall include the terms and conditions of this Agreement and all registration forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. Confidential Information shall not include any information that (i) was known to the Recipient prior to disclosure by the Discloser, and for which the Recipient can provide evidence that it was in its lawful possession free of any obligations to keep it confidential, (ii) is in the public domain at the time of disclosure or becomes part of the public domain after disclosure otherwise than through a breach of this Agreement, (iii) is independently developed by the Recipient, (iv) is approved for release by prior written consent of the Disclosing Party, (v) is received by the Recipient from a third party and there was no knowledge or reason to know on the part of the Recipient that the third party had obtained the information from the Disclosing Party under obligation of confidentiality.

6.2 Protection of Confidential Information
The Receiving Party shall use the same degree of care that it uses to protect its own confidential information, but in no event less than reasonable care not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

6.3 Protection of Licensee Data
Without limiting the above, SOTI shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Licensee Data. SOTI shall not (a) modify Licensee Data, (b) disclose Licensee Data except as compelled by law in accordance with Section 8.4 (Compelled Disclosure) or as expressly permitted in writing by Licensee, or (c) access Licensee Data except to provide the Software and related services or prevent or address service or technical problems, or at Licensee request in connection with customer support matters.

6.4 Compelled Disclosure
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled to do so by law, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

6.5 Privacy Policy
At all times Licensee information will be treated in accordance with SOTI’s Privacy Policy.

7. LIMITED WARRANTY

Except as specifically stated in this License, the Software is provided and licensed "AS IS" without warranty of any kind, either express or implied, including, but not limited to the implied warranties of merchantability and fitness for a particular purpose. SOTI warrants that the Software will substantially perform the functions or generally conform to the Software's specifications published by SOTI and included in this package.

SOTI does not warrant that the functions contained in the Software will meet Licensee's requirements or that the operation of the Software will be entirely error free or appear precisely as described in the Software Documentation. SOTI does not guarantee the performance of the software for use under every possible configuration, including but not limited to failure of the Software due to third parties software or the Licensee's computer network.

If the Software does not substantially perform the functions or generally conform to the Software’s specifications published by SOTI, Licensee may within thirty (30) days of delivery write to SOTI to report a significant defect. If SOTI is unable to correct the defect within ninety (90) days of receiving report, Licensee may terminate the license and this agreement by returning the Software with the original receipt and money paid by Licensee will be refunded.

8. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL SOTI BE LIABLE FOR DAMAGES OF THIRD PARTIES CLAIMED AGAINST THE LICENSEE OR PERSONAL INJURY, DEATH, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, OR FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF DATA, BUSINESS INTERRUPTION AND/OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES INCLUDING COSTS ASSOCIATED WITH DATA USAGE OVER COMMUNICATION NETWORKS (E.G. CELLULAR), ARISING OUT OF OR RELATED TO LICENSEES USE OR INABILITY TO USE THE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF SOTI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER WILL SOTI BE LIABLE FOR ANY DIRECT DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, ANY ALLEGED OR ACTUAL IMPROPER USE OR INSTALLATION OF THE SOFTWARE BY LICENSEE, ALLEGED OR ACTUAL NEGLIGENT ACTS OR OMISSIONS, WILLFUL MISCONDUCT, FRAUD OR FAILURE OF THE SOFTWARE DUE TO THIRD PARTIES SOFTWARE OR THE LICENSEE’S COMPUTER NETWORK. IN ANY CASE SOTI’S TOTAL LIABILITY SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE SOFTWARE OR FIVE HUNDRED UNITED STATE DOLLARS ($500 USD) WHICHEVER AMOUNT IS LESS.

9. INDEMNIFICATION

Either party shall hold harmless the other party including its staff, officers, directors, partners and controlling persons from and against any and all third party claims, arising out of or relating to the indemnifying party's: (i) alleged or actual negligent acts or omissions, willful misconduct or fraud in connection with this Agreement, (ii) alleged or actual breach of this Agreement; (iii) alleged or actual violation of any statute, law, ordinance or regulation, or (iv) alleged or actual infringement of any patent, copyright, trademark, trade secret or other intellectual property or other rights of a third party.

10. MISCELLANEOUS

10.1 Term and Termination
This License is perpetual. Licensee rights under this License will terminate automatically without notice from SOTI if Licensee fails to comply with any term(s) of this License which may be updated and modified from time to time by SOTI without providing the Licensee with prior notification. Upon the termination of this License, Licensee shall cease all use of the Software and destroy all copies, full or partial, of the Software.

10.2 Applicable Law
This License shall be construed in accordance with the laws of the Province of Ontario excluding its conflict of law provisions. The Licensee agrees to sole venue in the provincial or federal courts located in the Province of Ontario, and hereby consents to the jurisdiction of such courts over itself in any action relating to this License.

10.3 Amendments & Severability
SOTI reserves the right to change the License, as it may deem necessary, without the approval and/or prior written consent of the Licensee. If any provision of this License is found to be invalid or unenforceable to any extent, then the invalid portion shall be deemed conformed to the minimum requirements of law to the extent possible. In addition, all other provisions of this License shall not be affected and shall continue to be valid and enforceable to the fullest extent permitted by law.

10.4 Waiver
Neither the failure nor any delay by any Party in exercising any right under this License will operate as a waiver of such right.

10.5 Notice
Any questions concerning this License should be made in writing to the following:

SOTI Inc
5770 Hurontario Street
Suite 1100
Mississauga, Ontario
Canada, L5R 3G5
Attn: Legal / Contracts
Email: legal@soti.net

11. PRODUCT SUPPORT AND MAINTENANCE SERVICES

The License includes twelve (12) months of Product Support and Maintenance Services ("Services"). The following Services are included:

• SOTI Technical Support Service
  SOTI will provide support by telephone, email and via live remote sessions to Licensee between the hours of 9:00 A.M. and 5:00 P.M. EST, Monday through Friday, excluding Canadian statutory holidays. Support Services include the following:
  o Phone Support Service: +1-905-624-9828 or toll free in North America 1-888-624-9828
  o Email Support Service: support@soti.net
  o Live Remote Support Service


• SOTI Skin Catalogue Service


• Software upgrades (Major & Minor releases)