Phy-FiXX(TM) SYSTEM SOFTWARE LICENSE AGREEMENT AND LIMITED WARRANTY
HCS - HES Cabling System
Rev Date: May 2010

IMPORTANT - PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE INSTALLING OR USING SOFTWARE OR USING EQUIPMENT CONTAINING FIRMWARE.  YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS BY DOING ANY OF THE FOLLOWING:

I)	OPENING A SOFTWARE PACKAGE AND/OR USING OR INSTALLING SOFTWARE;
II)	POWERING, CONFIGURING, OR USING ANY EQUIPMENT CONTAINING FIRMWARE;
III)CLICKING "ACCEPT" ON THE REGISTRATION OR SIGN-IN SCREEN FOR SOFTWARE.  

IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CONTINUE WITH INSTALLATION OR USE OF SOFTWARE OR USE OF EQUIPMENT; PLEASE DELETE ANY COPIES OF SOFTWARE OR DOCUMENTATION THAT YOU HAVE MADE, AND CONTACT LICENSOR.

This System Software License Agreement and Limited Warranty (the "Agreement") is a contract between you and the organization you represent ("you" or "Licensee") and HES Cabling System  ("Licensor"), relating to the software components used with or embedded in Phy-FiXX scanner and Phy-FiXX patch panel products and systems provided by Licensor, including the following (the "Software"):

A) Client and server applications for monitoring, administration and management of scanner and patch panel systems ("Client/Server Application Software");
B) Software firmware and/or application components embedded in scanner products ("Scanner Software"); and
C) Software firmware components embedded in patch panel hardware ("Panel Firmware").

The terms of this Agreement are intended to apply to companies or individuals that use the Software for their internal purposes pursuant to the terms of this Agreement ("End Users") as well as to third-parties providing installation, implementation, configuration, systems engineering or consulting services with respect to scanner and patch panel products ("Service Providers").

I. Use of the Software
Subject to the terms and conditions set forth in this Agreement, and contingent on payment in full for the products and Software provided by Licensor, Licensor grants to you, and you accept, a limited, non-exclusive license to use the Software in object code form as well as any updates, enhancements, modifications or releases provided to you as part of support and maintenance services to which you have subscribed or are otherwise entitled under the terms of this Agreement, and any user manual for the Software provided by Licensor or made available by Licensor on its website, as modified from time to time (the "Documentation"), only for your own internal business purposes.  Under this Agreement, an End User may:
(A) Install copies of Client/Server Application Software for purposes of using such Software in accordance with the terms hereof.
(B) Use Scanner Software for which you have obtained license keys, solely with respect to management of the number of horizontal Ethernet cable connections permitted by the terms of such license keys (each key obtained provides a license to use the Software with respect to 576 such connections).
(C) Make one (1) copy of Client/Server Application Software for archival purposes, and make additional copies of Client/Server Application Software solely for purposes of facilitating use of the Software as contemplated herein.  
(D) Use the Scanner Software embedded in scanner products solely in such embedded form.
(E) Use the Panel Firmware embedded in patch panel hardware, solely in such embedded form.
(F) Use and copy the Documentation for purposes of internal training, configuration, use and troubleshooting.

Under this Agreement, a Service Provider may:
(A) Install copies of Client/Server Application Software for purposes of installing and configuring such Software for the use by an End User.
(B) Use Scanner Software for which the end-user has obtained license keys, solely with respect to management of the number of horizontal Ethernet cable connections permitted by the terms of such license keys.
(C) Make copies of Client/Server Application Software solely for purposes of facilitating installation and configuration of the Software as contemplated herein.
(D) Use and copy the Documentation for purposes of training End Users, implementation, configuration and troubleshooting of the scanner products and patch panel hardware.

II. Intellectual Property
(A) Except for the limited licenses provided for herein, this Agreement does not confer upon the end user or service provider any intellectual property rights in the Software.  Physical copies of the Software and Documentation are not sold to you, but are the property of Licensor and/or any third party from which the Licensor has received a license, and are provided to you for your use during the term of this Agreement and in accordance with its terms. 
(B) The Software, its code, and all Documentation are owned by Licensor or its subcontractors.  The organization, structure, and code of the Software are valuable trade secrets of Licensor or its subcontractors.  The Software, its code, and all Documentation are protected by U.S. Copyright law and International Treaty provisions.  You may not, in whole or in part, disclose, provide, make available, copy, photocopy, reproduce, translate, adapt, modify, or create derivative works, or reduce to any electronic medium or machine readable format, the Software, its code, or the Documentation, except as specifically set forth elsewhere in this Agreement, without the prior written consent of Licensor.  You also may not reverse engineer, decompose, disassemble, or otherwise attempt to discover or alter the source code of the Software.
(C) "Phy-FiXX" is a trademark of Licensor.  You may not use any trademark of Licensor except in accordance with Licensor's trademark usage policies.

III. Transfer
The Software and the Documentation may not be rented, leased or sublicensed.  The purchaser of the scanner products and/or patch panel hardware may, however, transfer all rights to use the Software to another person or legal entity provided that such other person or legal entity agrees to the terms hereof in writing.  Such transfer must involve the transfer of ownership and control of the scanner products and the patch panel hardware to such person or entity.  Except as provided by this Agreement, any attempt to lease, sublicense, assign, or transfer any of the rights, duties, or obligations under this Agreement shall be void.

IV. Export Provision 
Licensee acknowledges that the export of the Software may require licenses or approvals for export from the United States. Licensee agrees that regardless of any disclosure made by Licensee to Licensor of an ultimate destination of the Software, Licensee will not re-export directly or indirectly any Software without Licensor's prior consent, and provided that Licensee shall in each case comply with all applicable laws.

V. Limited Warranty
(A) Licensor warrants to the original purchaser of the scanner products that when operated as recommended and on a system meeting the operation requirements defined in the Documentation, the Software will perform substantially as described in the Documentation for a warranty period of one year following the date of purchase of the product (the "Warranty Period").
(B) During the Warranty Period, Licensor will perform technical services at no cost to the end-user, intended to remedy or provide a work-around for any failure of Software to perform as warranted above.  Licensee shall allow Licensor access to the Software through secure remote communications for this purpose.
(C) Licensor does not warrant that the Documentation or functions contained in the program will meet your requirements, or that any use of the Software will be uninterrupted or error free.  
(D) Licensor's sole liability, and your exclusive remedy with respect to breach of this warranty, will be either the repair or replacement of any Software, or the refund of the license fee paid for the Software, whichever Licensor shall choose.  To make a warranty claim, the purchaser must return the Software to Licensor within the Warranty Period with a copy of purchase documentation.  The purchaser is responsible for any costs, expenses, customs, duties, taxes, or other charges arising from return of the Software under this warranty. 
(E) This warranty shall not apply to any product that has been damaged or rendered inoperative as a result of  abuse, neglect, mishandling, improper packaging, alteration, unauthorized usage or tampering, accident, theft, electrical fluctuations, power surge, fire, water damage, liquid or chemical damage, negligence, failure to follow operating, maintenance or environmental instructions prescribed in the applicable user manuals, use by unauthorized or untrained  persons, or unauthorized service, repair, or modification. 
(F) WITH THE EXCEPTION OF THE FOREGOING LIMITED WARRANTY, THE SOFTWARE AND ITS ACCOMPANYING DOCUMENTATION ARE PROVIDED "AS IS."  LICENSOR MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO NONINFRINGEMENT OF THIRD-PARTY RIGHTS, QUIET ENJOYMENT, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.  As some states or jurisdictions do not allow the exclusion of implied warranties, these limitations may not apply to you.  Under this warranty, you have specific legal rights.  You may have other rights arising under the laws of your jurisdiction or state. The above warranties do not apply to software provided by third parties.

VI. Software Maintenance
Phy-FiXX Client/Server Application Software: Licensor will provide an initial maintenance subscription for Phy-FiXX Client/Server Application Software without additional charge, from the date of delivery of a license file for the first scanner that is to be associated with the Phy-FiXX Client/Server Application Software until 1 year following the date of such delivery.  A scanner is deemed associated with a particular server when the license file for that scanner is installed into the Phy-FiXX Client/Server Application Software.
       
Phy-FiXX Scanner Software: Licensor will provide an initial maintenance subscription for Phy-FiXX Scanner Software without additional charge, from the date of delivery of the license file for that scanner until 1 year following the date of such delivery. 
       
Phy-FiXX Panel Firmware: Licensor will provide an initial subscription for Phy-FiXX Panel Firmware without additional charge, from the date of delivery and acceptance of the panel until the expiration of maintenance of the Phy-FiXX Scanner Software of the specific scanner the panel is connected to.  
       
The maintenance subscription shall entitle you to receive:
(A) All maintenance releases and upgrades to Software and/or firmware made generally available to other registered users; and
(B) Reasonable customer support, as determined by Licensor consistent with its standard practices, via web and telephone.

After the initial maintenance subscription, you may subscribe for maintenance services pursuant to Licensor's standard policies for such services.  If you choose to renew your maintenance subscription, your subscription must include coverage for the Phy-FiXX Client/Server Application Software, all associated Phy-FiXX scanners and all panels attached to those scanners.    Licensor will pro-rate the cost of subscription for any scanners that have unexpired free maintenance remaining - in this way the renewal date will be the same for the Client/Server Application Software, the Scanner Software for all associated scanners, and Panel Firmware components of the scanner and panels.  In the event that your subscription to maintenance lapses or expires and you wish to re-subscribe, you may be required to pay subscription fees for the period during which maintenance services were not in effect.

VII. Limitation of Liability
IN NO EVENT WILL LICENSOR, ITS SUPPLIERS OR AFFILIATES, BE LIABLE FOR: (I) ANY AMOUNT OF LIABILITY OR DAMAGES IN EXCESS OF THE LICENSE FEES PAID FOR THE SOFTWARE GIVING RISE TO LIABILITY OR DAMAGES; OR (II) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES ARISING OUT OF USE OF THE SOFTWARE, INCLUDING ANY LOST PROFITS, LOST SAVINGS, INCONVENIENCE, EXPENSE FOR SUBSTITUTE EQUIPMENT OR SERVICES, STORAGE CHARGES, OR LOSS OR CORRUPTION OF DATA, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  NEITHER WILL LICENSOR BE LIABLE FOR CLAIMS OF ANY THIRD PARTY.  Without limiting the foregoing, you assume all risks and liability for loss, damage or injury to you and your property and to others and their property arising out of the use, misuse or inability to use the product, unless directly caused by the gross negligence of Licensor.  Some states or jurisdictions may not allow the limitation or exclusion of liability for incidental, special, or consequential damages, so a portion or all of the above limitation may not apply to you.  You acknowledge that Licensor's obligations to you with respect to the Software are governed solely by this Agreement, and you expressly waive your right to assert any claim against Licensor arising under tort law, including, but not limited to, negligence, gross negligence, willful, reckless or wanton conduct, negligent misrepresentation, innocent misrepresentation, fraud, claims for failure to exercise due care in the performance of services hereunder, and/or strict liability, as well as any other claim under any other legal or equitable theory other than a claim of material breach of this Agreement. 

THE SOFTWARE IS  NOT DESIGNED OR INTENDED FOR USE, AND SHOULD NOT BE USED OR SOLD OR RESOLD FOR USE, IN ANY APPLICATIONS REQUIRING FAIL-SAFE PERFORMANCE AND/OR IN WHICH A MALFUNCTION OR A FAILURE OF THE SOFTWARE COULD LEAD TO PERSONAL INJURY OR DEATH, OR SERIOUS PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING BUT NOT LIMITED TO APPLICATIONS SUCH AS (A) LIFE SUPPORT MACHINES OR OTHER LIFE PRESERVING MEDICAL DEVICES OR SYSTEMS; (B) AIR TRAFFIC CONTROL OR AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS; OR (C) CONTROL EQUIPMENT FOR NUCLEAR FACILITIES (COLLECTIVELY, "RESTRICTED USES"). ALL RESTRICTED USES OF THE SOFTWARE ARE STRICTLY PROHIBITED AND SHALL AUTOMATICALLY VOID ANY WARRANTIES OR INDEMNITIES PROVIDED BY LICENSOR, AND RELEASE THE COMPANY FROM ANY OBLIGATION TO PROVIDE ANY SUPPORT WITH RESPECT TO SUCH SOFTWARE.  YOU WILL BE SOLELY RESPONSIBLE FOR, AND SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR AND ITS AFFILIATES, AGENTS, SUPPLIERS AND REPRESENTATIVES AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES OR LIABILITIES ARISING IN CONNECTION WITH A RESTRICTED USE.

VIII. Governing Law and General Provision
This Agreement shall be governed by the laws of the State of Illinois, excluding the application of Illinois' choice of law rules.  This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.  Should any portion of this Agreement be found void and unenforceable, it shall not affect the validity of the other portions of this Agreement, which shall remain valid and enforceable according with their terms.  You agree that the Software will not be shipped, transported, transferred, or exported in violation of the United States Export Administration Act or any other export laws, restrictions, or regulations. This Agreement may only be modified in writing, signed by an authorized officer of Licensor.

IX. Restricted Rights
The Software and Documentation are commercial computer software developed at private expense and are provided subject to the terms of this commercial license pursuant to FAR 27.405-3 and DFARS 227.7202.  You may not provide copies of the Software or technical data to any third party, including the U.S. Government, unless such third party accepts the same restrictions.  

X. Termination
This Agreement may be terminated by destroying the Software and accompanying documentation, together with all copies, modifications, and merged portions in any form.  This Agreement shall also terminate if you fail to comply with any term or condition of this Agreement.  Upon such termination, you agree to destroy the Software and any accompanying documentation, together with all copies, modifications, and merged portions, in any form.  Sections II, V (other than subsections (A) and (B) thereof), VI, VII, VIII, IX, X, XII, XIII and XIV shall survive any termination of this Agreement. If this agreement expires or is terminated for any reason, Licensee agrees to certify in writing, to Licensor that all copies of the licensed products have been destroyed

XI. Force Majeure
Neither party nor its representatives shall be liable for delays or failures in performance hereunder, other than payment obligations, resulting from acts beyond the reasonable control of such person, and time for performance will be extended by a period equal to such delay. Such acts shall include, without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations imposed after the execution hereof, fire, power failures, earthquakes, or other disasters

XII. Relief
Licensee acknowledges that any violation of this Agreement by Licensee will cause irreparable injury to Licensor, and Licensor shall be entitled to injunctive relief.

XIII. General
This Agreement merges all prior written and oral communications and defines the entire agreement of the parties concerning the Software and Documentation. The failure by either party at any time to enforce its rights under this Agreement will not be construed as a waiver of such rights, nor will it in any way affect the validity of this Agreement. No waiver by either party will be valid unless given in an appropriate writing signed by both parties.

XIV. Third Party Software Rights
The Software may contain code from third party software vendors, who retain all rights in and to their code. Furthermore, the use of the Software shall be subject to the terms and conditions of use of such third party software vendor.  
