mTouchPos 1.14

EULA - End User License Agreement

AGREEMENT OF LICENSE GRANT

1. License content
1.1 hereby grants to the Licensee a personal, non-exclusive, non-transferable, irrevocable (except as provided for under clause 8 of this Agreement) licence to use the computer program suite defined in the attached Schedule A (hereinafter 'the Programs'), which Schedule shall form part of the agreement.

1.2 The license granted herein authorizes the Licensee to Install the Programs in machine form at the site designated in Schedule A hereto.

1.3 Licensee and MTP Co.,LTD will be responsible for compliance with the Export Administration Regulations (EAR) and any local import and export regulations in respect of trading between the Licensee and any of its overseas subsidiaries. MTP Co.,LTD will provide reasonable assistance and information to the Licensee in respect of ensuring compliance with the appropriate regulations .

2. RIGHTS
2.1 Licensee acknowledges that this Agreement conveys only the right to use the Programs as set out herein and that all other rights, title and interest in the Programs remain vested in MTP Co.,LTD and its suppliers.

2.2 All rights and title to any modifications or derivatives of the Programs, howsoever derived or funded shall be vested solely in MTP Co.,LTD.

3. CONFIDENTIALITY
3.1 The Licensee recognizes that any information disclosed by MTP Co.,LTD to the Licensee and designated as confidential is of proprietary value to MTP Co.,LTD and is to be considered highly confidential ('Confidential Information'), further, the Licensee agrees that all forms of the Programs as described in Clause 5 may contain confidential trade secrets of MTP Co.,LTD, and undertakes to treat, and to have its employees and agents treat, all forms of the Programs as confidential and to prevent disclosure of any and all details of the Programs, without obtaining the prior written consent of MTP Co.,LTD, to any third party, such consent not to be unreasonably withheld or delayed.

3.2 In the event that Licensee breaches, or attempts to breach, or threatens to breach, any of the provisions of Clause 2 or Clause 3.1 of the Agreement, then MTP Co.,LTD, in addition to any other remedies available at law or in equity, shall have the right to seek injunctive relief enjoining such breach, or attempt to breach, or threat to breach, it being acknowledged by the parties hereto that legal remedies are inadequate in such circumstances.

3.3 MTP Co.,LTD recognizes that any information disclosed by Licensee to MTP Co.,LTD is of proprietary value to Licensee and is to be considered highly confidential ('Confidential Information'). MTP Co.,LTD shall not use or disclose such Confidential Information to others (except its employees who reasonably require same for the purposes hereof and who are bound to it by a like obligation as to confidentiality) without the express written permission of Licensee.

3.4 The provisions of this Clause shall not apply to any information that:

3.4.1 can be demonstrated by written records to have been previously acquired from a third party at the time of receipt

3.4.2 was subsequently otherwise legally acquired from a third party having an independent right to disclose the information

3.4.3 is now or later becomes publicly known without breach of this Agreement by the discovery party or any party that received such Confidential Information from the disclosing party.

3.5 MTP Co.,LTD and Licensee shall divulge Confidential Information only to those employees who are directly involved in the license or use of the Program and shall use their best endeavors to ensure that such employees are aware of and comply with these obligations as to confidentiality.

3.6 Prompt notification shall be given to the other party of the unauthorized possession, use or knowledge of any item supplied pursuant to this Agreement.

3.7 The obligations as to disclosure and confidentiality shall come into effect on the signing of the License Agreement and shall continue in force notwithstanding the termination of the Agreement.

3.8 The obligations as to disclosure and confidentiality shall not apply to information to the extent such information is required to be disclosed by governmental authority or judicial order.

3.9 Licensee shall not create or attempt to create, nor permit others to create or attempt to create, the source computer programs or any part thereof from operational object programs licensed to Licensee hereunder.

4. LICENSE FEE AND PAYMENT
consideration of the rights received under this Agreement the Licensee undertakes to pay MTP Co.,LTD the sums defined in the attached Schedule A at the times so specified.

The Licensee will pay any taxes and duties necessary to be added to the specified sums.

5. SUPPORT AND ENHANCEMENT
Licensee undertakes to enter into a Software Support and Enhancement Agreement commencing on installation of the Programs.

6. CLAUSE HEADINGS
Clause headings are inserted in this Agreement for ease of reference only and do not form part of the Agreement for purpose of interpretation.

7. TERMINATION
7.1 The License granted herein shall be effective as of the date hereof and may be terminated in the event of the Licensee or MTP Co.,LTD defaulting in its material obligations under this Agreement; provided that notice of such default shall be served by registered mail whereupon the Licensee or MTP Co.,LTD shall have a period of thirty (30) days to correct such default. Failure to correct such default within the prescribed period may cause the License to be terminated.

7.2 Either party may terminate the License forthwith on written notice if the other party shall become insolvent or go into liquidation.

7.3 Termination of the License shall not prejudice any rights of either party which have arisen on or before the date of termination.

7.4 Within fourteen (14) days following the date of termination the Licensee, if it is in default of its obligations, shall at the option of MTP Co.,LTD return or destroy all copies, forms and parts of the Programs and related documentation which are covered by this License and shall certify to MTP Co.,LTD in writing that this has been done.

8. INDEMNITY AND INSURANCE:
8.1 MTP Co.,LTD shall indemnify and keep indemnified the Licensee, against injury (including death) to any persons or loss of or damage to any property (including the Program) which may arise out of the act, default or negligence of MTP Co.,LTD, their employees or agents in consequence of MTP Co.,LTD's obligations under the Licence and against all claims, demands, proceedings, damages, costs, charges and expenses whatsoever in respect thereof or in relation thereto, provided that MTP Co.,LTD shall not be liable for nor be required to indemnify the Licensee against any compensation or damages for or with respect to injuries or damage to persons or property to the extent that such injuries or damage result from any act, default or negligence on the part of the Licensee his employees or contractors (not being MTP Co.,LTD or employed by MTP Co.,LTD).

8.2 The Licensee shall indemnify and keep indemnified MTP Co.,LTD against injury (including death) to any persons or loss of or damage to any property (including the Program) which may arise out of the act, default or negligence of the Licensee, his employees or agents in consequence of the Licensee's obligations under the Licence and against all claims, demands, proceedings, damages, costs, charges and expense whatsoever in respect thereof or in relation thereto, provided that the Licensee shall not be liable for nor be required to indemnify MTP Co.,LTD against any compensation or damages for or with respect to injuries or damage to persons or property to the extent that such injuries or damage result from any act, default or negligence on the part of MTP Co.,LTD his employees or contractors.

Without thereby limiting their responsibilities under sub-clauses 10.1 and 10.2, each party shall insure with a reputable insurance company against all loss of or damage to property and injury to persons (including death) arising out of or in consequence of his obligations under the licence and against all actions, claims, demands, costs and expenses in respect thereof, save only as is set out in the exceptions in sub-clause

The liability of the parties under sub-clause 10.1 or 10.2, as appropriate, shall exclude damage or injury (other than injury including death resulting from negligence) consequent upon design, formula, specification or advice. Except in respect of injury, including death to a person due to negligence for which no limit applies, the liability of the parties under sub-clause 10.1 or 10.2 as appropriate shall not exceed the price of the portion of agreement giving rise to the liability in respect of any event or series of connected events.

9. CONSEQUENTIAL LOSS
Save as expressly stated elsewhere in the License, neither party shall be liable to the other party for consequential, indirect, special, exemplary, or punitive losses or damages including loss of use or of profit or of contracts or of data, even if such party had been advised of the possibility thereof.

10. PERFORMANCE
Instem warrants that the Programs will perform in accordance with the User Manual and as intended, but nothing contained in this Agreement, in the User Manuals or in any document, literature or specification of, nor any statement made at the time by Instem or its employees or agents, amounts to a warranty or condition that the Programs are suitable for any particular purpose.

11. ENTIRE AGREEMENT
This Agreement constitutes the entire and complete agreement between the parties about the subject matter hereof and replaces all prior communications, agreement and understandings relating to the said subject matter.
12. VARIATIONS
amendment or variation to the Agreement shall be effective unless it is in writing, is dated and is signed by or on behalf of Instem and the Licensee.

13. NOTICES
All notices and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly made and received when personally served, or when mailed by registered, recorded or certified mail, to the party to whom it is addressed at the party's registered office. Any party may alter the address to which communications are to be sent by giving notice of such change of address in conformity with the provisions of this Clause providing for the giving of notice.

14. INTELLECTUAL PROPERTY INDEMNIFICATION
MTP Co.,LTD shall, at its sole expense, defend any claim or action brought against Licensee and Licensee's subsidiaries, affiliates, directors, officers, employees, agents and independent contractors, to the extent it is based on a claim that the Programs provided under this License infringe or violate any patent, copyright, trademark, trade name, or other proprietary right of a third party, and MTP Co.,LTD shall indemnify Licensee against all costs, damages and fees reasonably incurred by Licensee, including but not limited to solicitors or attorneys fees, that are attributable to such claim, provided that :

Licensee gives MTP Co.,LTD prompt notice in writing of any such suit and permits MTP Co.,LTD, through counsel of its choice, to answer the charge of infringement and defend such claim or suit;

Licensee provides MTP Co.,LTD with information, reasonable assistance and authority, at MTP Co.,LTD's expense, to enable MTP Co.,LTD to defend such suit;

MTP Co.,LTD shall not be responsible for any settlement made by Licensee without MTP Co.,LTD's written permission.
Should the Programs be found to infringe a third party's proprietary right, MTP Co.,LTD shall at its option provide the Licensee with non infringing Programs or reimburse the Licensee for the purchase price for the Programs and the Licensee shall return the Programs to MTP Co.,LTD forthwith.

15. GENERAL ATREEMENT
No action, regardless of form, arising out of this Agreement may be brought by Licensee or MTP Co.,LTD more than one year after the cause of the action has arisen.

This Agreement shall be binding upon and endure to the benefit of the successors and assignees of the parties hereto. Licensee may assign this Agreement to any entity controlled by, controlling, or under common control with Licensee at such time, as well as in connection with the sale, transfer, merger, or acquisition, whether by operation of law or otherwise, of substantially all of the stock or assets of Licensee that uses the Software.

No delay or failure of MTP Co.,LTD or Licensee in exercising any right hereunder and no partial or single exercise thereof by MTP Co.,LTD or Licensee shall be deemed to constitute a waiver of such right or another right hereunder.

16. APPLICABLE LAW
This Agreement shall be construed and the legal relations between the parties shall be determined in accordance with the laws of the Commonwealth of Pennsylvania.