CertGear Systems End-User License Agreement

CertGear Systems Inc.

End-User License Agreement ("EULA")

NOTICE TO USER: PLEASE READ THIS CAREFULLY BEFORE INSTALLING ANY SOFTWARE OR PRODUCT FROM CERTGEAR SYSTEMS, INC. THIS END-USER LICENSE AGREEMENT ("EULA") IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR, IF PURCHASED OR OTHERWISE ACQUIRED BY OR FOR AN ENTITY, AN ENTITY) AND CERTGEAR SYSTEMS, INC. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. BY INSTALLING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT.

IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN DO NOT INSTALL THIS SOFTWARE.

Section 1: License Grants

1.1) SINGLE USER LICENSE GRANT: CertGear Systems, Inc. ("CERTGEAR") grants to User ("USER") a nonexclusive and nontransferable license to use the CERTGEAR Software ("Software") in object code form solely on a single computer, by a single individual. Note that with this license, the USER may not able to reinstall or transfer the license to another computer after registration.

Section 2: License Restrictions

2.1) USER may not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form.

2.2) USER may not sell, rent, lease, or sublicense the Software.

2.3) USER may not modify the Software or create derivative works based upon the Software.

2.4) USER's license rights under this EULA are non-exclusive.

2.5) In the event the USER fails to comply with this EULA, CERTGEAR may terminate the license and USER must destroy all copies of the Product(s), with all other provision of this EULA surviving any such termination.

Section 3: Copyright Status

3.1) CERTGEAR Web-sites, Software (including but not limited to all images, photographs, animations, video, audio, music, text, and other information incorporated into the software), all related product documentation, study guides, and this Agreement, are Copyright (c) 2004 by CertGear Systems, Inc.

3.2) Portions of some data (e.g. Test Questions) distributed within certain CERTGEAR Products may be Copyright by a CERTGEAR Independent Contractor, and if so, are being distributed by CERTGEAR under written Agreement.

3.3) CERTGEAR Independent Contractors develop unique and original Content based on published certification objectives only. The CERTGEAR Independent Contractor Agreement states under penalty of perjury that no copyrighted, confidential, or intellectual property materials may be derived or used in the creation of the Content distributed by CERTGEAR.

3.4) All CERTGEAR Content, Products, and/or Materials are NOT sponsored by, endorsed by or affiliated with any other company except those partnerships expressly announced at www.certgear.com.

Section 4: Product Updates

4.1) Under the following restrictions, the price of a CERTGEAR Product License includes: (a) limited technical support for a maximum period of 90 days from the date of purchase, and (b) either no-cost or reduced-cost downloadable updates for a maximum period of 12 months from the date of purchase.

4.2) At CERTGEAR's sole option, "no-cost" software Product updates may be available for currently active vendor exam releases of the exact same vendor exam name, same vendor objectives, and same vendor exam versions. However, if the vendor's exam is discontinued, then the corresponding CERTGEAR Product may also be discontinued, and if so, no further support will be provided.

Section 5: Warranty Disclaimer

5.1) THE SOFTWARE IS PROVIDED ON AN"AS IS". CERTGEAR PROVIDES NO WARRANTIES OR REMEDIES FOR THE SOFTWARE.

5.2) CERTGEAR AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. CERTGEAR DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION.

5.3) IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY.

Section 6: Limitation of Liability

6.1) NEITHER CERTGEAR NOR ITS SUPPLIERS SHALL BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF CERTGEAR OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

6.2) CERTGEAR'S TOTAL LIABILITY TO USER FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO $5.00 USD OR THE AMOUNT PAID BY USER FOR THE SOFTWARE, WHICHEVER IS LESS.

6.3) IN NO EVENT SHALL CERTGEAR, OR ITS PRINCIPALS, SHAREHOLDERS, OFFICERS, EMPLOYEES, AFFILIATES, CONTRACTORS, OR CONTENT AUTHORS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER RELATING TO THE USE OF THE SOFTWARE.

Section 7: Dispute Resolution

7.1) With respect to any controversy or claim arising out of or in any way related to this Software or this Agreement, the USER agrees in good faith to attempt to resolve such dispute before entering into any formal legal proceeding by providing written notice and entering into good faith discussions and negotiation. If the issue or dispute has not been resolved within thirty (30) days of the date of written notice thereof to the other party of the issue or dispute (or longer period may be agreed to between the parties), then the issue shall be resolved by mediation in accordance with the applicable American Arbitration Association Mediation Rules. If the matter has not been resolved by mediation within thirty (30) days of the initiation of the mediation, the controversy shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by an independent arbitrator, to be selected by CERTGEAR. The arbitration shall be conducted in English and in accordance with the commercial arbitration rules of the AAA. The arbitration, including the rendering of the award, shall take place in Santa Clara County, California, and shall be the exclusive forum for resolving such dispute, controversy or claim.

7.2) Prior to filing any lawsuit or other legal actions, the USER agrees to immediately notify CERTGEAR of any Copyright, Confidential Information, Intellectual Property, or Trademark infringements discovered on or within any CERTGEAR web site or Product, and further agrees to give CERTGEAR reasonable opportunity to immediately verify and remove any such offending Product from sale.

Section 8: Government Restrictions

8.1) CERTGEAR Products are provided to government agencies with restricted rights. Any and all disclosure,use, or duplication by the United States Government is restricted by subparagraphs (c)(1) and/or (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, and/or, subparagraphs (c)(1)(iii)of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013; as applicable.

Section 9: General Terms

9.1) This EULA shall be governed by the internal laws of the State of California, without giving effect to principles of conflict of laws. USER hereby consents to the exclusive jurisdiction and venue of the state courts sitting in Santa Clara County, California or the federal courts in the Northern District of California to resolve any disputes arising under this EULA. In each case this EULA shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.

9.2) This EULA contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. USER agrees that any varying or additional terms contained in any purchase order or other written notification or document issued by USER in relation to the Software licensed hereunder shall be of no effect. The failure or delay of CERTGEAR to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach

9.3) If any provision of this EULA shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this EULA will remain in full force and effect.