based on any Indemnified Claim, which is any claims or allegation arising from or relating to Your breach of any provi- sion of this Agreement including, but not limited to, a breach of Sections 2 and 3. You will pay any costs and damages finally awarded against Mountz that are attributable to any Indemnified Claim or that Mountz incurs through settlement of an Indemnified Claim, but will not be responsible for any compromise that Mountz makes or expense that Mountz incurs without Your consent. The defense and payments are subject to the condition that Mountz gives You prompt written notice of the Indemnified Claim, allows You to direct the defense and settlement of the Indemnified Claim, and cooper- ates with You as necessary for defense and settlement of the Indemnified Claim. 11. EXPORT CONTROL You acknowledge that the Software, Documentation and all related technical information or materials are subject to export controls under the laws and regulations of the United States and any other applicable governments. You agree to comply with these laws and regulations governing export, re-export, import, transfer, distribution, and use of the Software, Documentation and all related technical information or materials. In particular, but without limitation, the Software, Documentation and all related technical information or materials may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to any person or entity listed on a denial order published by the U.S. government or any other applicable governments. By using the Software, Documentation and all related technical information or materi- als, You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use the Software, Documentation and all related technical information or materials for any purposes prohibited by the U.S. government or other applicable governments' laws, including, without limitation, the development, design, manu- facture or production of nuclear, missile, chemical or biological weapons. You confirm that the Software, Documentation and all related technical information or materials will not be re-exported or sold to a third party who is known or suspect- ed to be involved in activities including, without limitation, the development, design, manufacture, or production of nuclear, missile, chemical or biological weapons. You agree that Software, Documentation and all related technical infor- mation or materials subject to control under defense laws and regulations (e.g., the International Traffic in Arms Regulations [ITAR]) must not be transferred to non-U.S. persons, whether located in the U.S. or abroad, without a gov- ernment license. You will indemnify Mountz against any loss related to Your failure to conform to these requirements. 12. NOTICES All notices should be emailed to: ___________ at brad.mountz@mountztorque.com 13. APPLICABLE LAWS Claims arising under this License Agreement shall be governed by the laws of the State of California, excluding its princi- ples of conflict of laws and the United Nations Convention on Contracts for the Sale of Goods. Mountz is not obligated under any other agreements unless they are in writing and signed by an authorized representative of Mountz. 14. ARBITRATION Any and all disputes that may arise between you and Mountz under or in connection with this Agreement, except for claims for injunctive relief, shall be submitted to final and binding arbitration heard by a single arbitrator in accordance with the then-current Arbitration Rules of the American Arbitration Association (the "AAA"), unless otherwise agreed in writing by the parties. Any counterclaim not brought within 15 days after receipt of the arbitration notice shall be barred. All matters within the scope of the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.) shall be governed by it. The arbitration shall be conducted in any AAA arbitration facilities in the City of San Jose. The arbitration shall be conducted in the English language. The award shall include a written statement of findings of fact and conclusions of law and the reasons on which it is based. It also shall include an award of legal fees, costs and expenses, including reasonable attorneys' fees and the arbitrator's fees and expenses, to the prevailing party. Subject to any terms contained in this Agreement lim- iting or excluding damages, the arbitrator may award any relief that the arbitrator deems proper, including without limita- tion equitable relief, provided that the arbitrator shall not have authority to award exemplary, special or punitive damages. The award shall be enforceable in any court of competent jurisdiction. The terms of this Section shall continue in full force and effect subsequent to and notwithstanding the termination of this Agreement. 15. GENERAL PROVISIONS If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. This Agreement may only be modified in writing by an authorized officer of Mountz. This is the entire agreement between Mountz and You relating to the Software and it supersedes any prior representations, discussions, undertakings, end user agreements, communications or adver- tising relating to the Software.
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Corporate Headquarters: 1080 North 11th Street, San Jose, CA95112 Phone: (408) 292-2214 Fax: (408) 292-2733 www.mountztorque.com
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