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Software Bisque Software License Agreement

SOFTWARE BISQUE (“BISQUE”) IS WILLING TO LICENSE THESKY™ ASTRONOMY SOFTWARE, THESKY IMAGING EDITION™, TPOINT™ TELESCOPE POINTING ANALYSIS SOFTWARE (THE TPOINT MODULE™), ORCHESTRATE™ SCRIPTING SOFTWARE, THE DOME MODULE™, AND OTHER SOFTWARE COMPONENTS LICENSEE ELECTS TO PURCHASE FROM BISQUE, AND THE APPLICABLE USER DOCUMENTATION (THE “SOFTWARE”) ONLY ON THE CONDITION THAT THE USER OF THE PRODUCT (THE “LICENSEE”) ACCEPTS ALL OF THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”).

BY OPENING, INSTALLING, USING, ACCESSING OR MANIPULATING THE PRODUCT, LICENSEE ACKNOWLEDGES THAT LICENSEE HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY IT. IF LICENSEE DOES NOT AGREE TO ANY OF THE TERMS BELOW, BISQUE IS UNWILLING TO LICENSE THE PRODUCT TO LICENSEE, AND LICENSEE SHOULD RETURN THIS AGREEMENT AND THIS PRODUCT PROMPTLY TO BISQUE.

1. LICENSE AND RESTRICTIONS.

(a) License. Licensee is permitted to install and use the SOFTWARE in machine-readable form on no more than two (2) computers solely for LICENSEE’s private, personal, non-commercial, non-military use. In addition, if LICENSEE purchases the Browser Astronomy™ software component which provides Internet-enabled functionality of the SOFTWARE, LICENSEE may access and use the SOFTWARE remotely via the Internet or other external network subject to the limitations in Section 1(b) below and provided that remote access is confined to LICENSEE or LICENSEE’s authorized employees and solely for LICENSEE’s personal, non-commercial use. LICENSEE may copy the Software only for backup purposes, provided that, LICENSEE reproduces all copyright and other proprietary notices that are on the original copy of the SOFTWARE.

(b) Software Restrictions. Except as expressly provided in this Agreement, LICENSEE may not (i) use, copy, display, perform, modify or create derivative works of the Product in whole or in part, or merge the Product with any third party products; (ii) translate, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of or the internal communications protocols used by the SOFTWARE; (iii) rent, lease, loan, sublicense, distribute, transfer, use as a service bureau or otherwise allow third parties to access the Product; (iv) use the SOFTWARE to provide third-party access to telescopes on a time-shared basis; (v) remove any proprietary or intellectual property notices, labels, or marks on the SOFTWARE; or (vi) otherwise use the SOFTWARE or copy the SOFTWARE except as expressly permitted under Section 1(a). LICENSEE shall be responsible for obtaining all hardware and software products necessary for the operation of the SOFTWARE. If applicable, LICENSEE shall be solely responsible for obtaining Internet access necessary for the operation of the Internet-enabled functionality of the SOFTWARE.

(c) TPoint Hardware Restrictions. The retail version of TheSky and TPoint can be used on 0.5 meter and smaller optical tube assemblies (or the equivalent aperture with multiple optics). For telescopes larger than 0.5 meters, please contact BISQUE to obtain the appropriate license.

(d) TPoint Mounting Support. The TPoint module is compatible with German equatorial mounts and equatorial fork mountings. The TPoint module is not compatible with altazimuth mounts. If you wish to use TheSky and TPoint Professional to control your altazimuth mount, please contact BISQUE about licensing the appropriate TPoint technology for your altazimuth mount.

2. PAYMENT. Licensee is responsible for all license fees associated with the Product payable to BISQUE or BISQUE’s distributors. All payments must be made in U.S. dollars (USD). The license fees exclude all applicable sales, use, and other taxes and all applicable export and import fees, customs duties and similar charges, and LICENSEE will be responsible for payment of all such taxes (other than taxes based on BISQUE’s income), fees, duties, and charges, and any related penalties and interest, arising from the payment of the license fees or the delivery or license of the SOFTWARE to LICENSEE. Any portion of the license fees that is not paid when due will accrue interest at eighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.

3. OTHER SERVICES. Licensee acknowledges that nothing under this Agreement obligates Bisque to perform, provide, or render any services of any kind, including, but not limited to support, training, or consulting services. This Agreement does not entitle LICENSEE to any subsequent versions, upgrades or enhancements of the software.

4. OWNERSHIP. BISQUE and its respective licensors shall retain all right, title, and interest to or residing in all SOFTWARE subject to this Agreement, including without limitation all existing and future worldwide patents, patent applications, trademarks, trade names, services marks, inventions, copyrights, know-how, trade secrets and other proprietary rights. The SOFTWARE is licensed, not sold, to LICENSEE, and BISQUE reserves all rights not expressly granted to LICENSEE.

5. TERM AND TERMINATION. The Agreement becomes effective when LICENSEE agrees to the terms and conditions of this Agreement by opening, installing, using, accessing or manipulating the SOFTWARE, and will terminate immediately if LICENSEE materially breaches any term or condition of this Agreement. LICENSEE agrees upon termination to promptly return to BISQUE all SOFTWARE and any copies thereof. The provisions of Sections 4 (Ownership), 6 (Warranty Disclaimer), 7 (Limitation of Liability), and 10 (General) shall survive the expiration or termination of this Agreement.

6. WARRANTY DISCLAIMER. THE PRODUCT IS PROVIDED “AS IS” AND BISQUE AND ITS LICENSORS DISCLAIM ANY AND ALL WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, FOR ANY PRODUCT PROVIDED UNDER THIS AGREEMENT. FURTHER, BISQUE DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATION REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE PRODUCT IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BISQUE, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES.

7. LIMITATION OF LIABILITY. IN NO EVENT WILL BISQUE, ITS LICENSORS, EMPLOYEES, OR AGENTS BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY LOST DATA, LOST PROFITS, INTERRUPTION OF BUSINESS OR OTHER SPECIAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, OR INCIDENTAL DAMAGES ARISING FROM THE USE OR INABILITY TO USE THE PRODUCT OR OTHERWISE RELATING TO THIS AGREEMENT, REGARDLESS IF BISQUE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. BISQUE’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE PRODUCT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT RECEIVED BY BISQUE FROM LICENSEE AS CONSIDERATION FOR THE LICENSES GRANTED UNDER THE TERMS OF THIS AGREEMENT. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDIES PROVIDED UNDER THIS AGREEMENT.

8. EXPORT LAWS. The Product and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Licensee agrees to strictly comply with all such laws and regulations and acknowledges that Licensee has the responsibility to obtain such licenses to export, re-export or import as may be required.

9. U. S. GOVERNMENT LICENSEES. The Product is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government Licensees acquire the Product with only those rights set forth therein.

10. GENERAL. This Agreement shall be governed by the laws of the State of Colorado, or the federal laws of the United States of America, excluding its conflict of laws principles, and the parties hereby consent to jurisdiction and venue in the state and federal courts sitting in Jefferson County, Colorado. In any such dispute, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses from the other party. Licensee may not assign or transfer its rights or obligations arising under this Agreement to any third party, and any such attempted assignment or transfer shall be void and without effect. This Agreement may not be modified except upon mutual written agreement of both parties. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. If any provision of this Agreement is deemed unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. This Agreement sets forth the entire understanding of the parties and supersedes any and all prior oral and written agreements or understandings between the parties regarding the subject matter of this Agreement. Nothing contained in any purchase order, order acknowledgement form, order confirmation form, task order, invoice, delivery order, or similar documents submitted by Licensee to Bisque or Bisque’s distributors shall in any way modify or add to the terms and conditions contained in this Agreement.

THE SOFTWARE IS PROTECTED BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.

Protected by copyright and licenses restricting use, copying, distribution and decompilation. TheSky™, TPoint™, Internet Astronomy Software™, Dome Module™, Orchestrate™, Remote Astronomy Software™, Browser Astronomy™, Paramount™, are trademarks of Software Bisque, Inc. in the United States and other countries.

Software Bisque Software License Agreement

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