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END USER LICENSE AGREEMENT

THIS END-USER LICENSE AGREEMENT IS FOR RAIL THE INVENTORY MANAGEMENT SYSTEM (“RIMS”). IMPORTANT, PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE CONTINUING WITH THIS PROGRAM: This End-User License Agreement (“EULA”) is a legal agreement between the you (sometimes referred to herein as “You” or “User”) and Moffatt & Nichol doing business as TavlaSolutions (“TavlaSolutions”) for the RIMS application(s) identified above (the “RIMS PRODUCT”), which may include associated components, media, printed materials, and “online” or electronic documentation. By using the RIMS PRODUCT, you agree to be bound by the terms of this EULA. This EULA represents the entire agreement concerning the program between you and TavlaSolutions, (sometimes also referred to as “licensor”), and it supersedes any prior proposal, representation, or understanding between the parties. If you do not agree to the terms of this EULA, TavlaSolutions does not license the RIMS PRODUCT to you and you must not use the RIMS PRODUCT. The RIMS PRODUCT is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The RIMS PRODUCT is licensed, not sold.

RECITAL
  1. TavlaSolutions provides a configurable internet-based software system, known as the Rail Inventory Management System (“RIMS”), as a mechanism for entering, maintaining, updating and transmitting information associated with the information gathering and reporting requirements of the 2008 Rail Safety Improvement Act (“RSIA”). Any and all information, graphics, images and/or data entered into, stored, displayed, by user and/or contained in RIMS is referred to in this EULA as the “Data” and remains property of user.
  1. GRANT OF LICENSE
    The RIMS PRODUCT is licensed as follows:
    1. Grant of Rights.
      TavlaSolutions grants to User a non-transferable, non-exclusive, non-sublicensable limited license to access and use RIMS, subject to User’s strict compliance with all terms and conditions set forth in this EULA and in any other license agreement entered into between User or User’s company and TavlaSolutions. No other license or right, express or implied, shall be deemed granted or implied under this EULA.
    2. Scope of License.
      The scope of User’s license to access and use RIMS and any associated performance obligations, service(s) and/or materials to be provided by TavlaSolutions are described in the Statement of Services and License.
  2. COPYRIGHT
    1. TavlaSolutions’ Rights
      User acknowledges that TavlaSolutions is the developer and owner of RIMS, and shall retain all common law, statutory and other reserved rights, including copyrights in RIMS. RIMS is protected by copyright as collective works/and or compilations, pursuant to U.S. copyright laws, international conventions, and any other applicable copyright laws. User understands that the license granted herein transfers neither title nor proprietary rights to User with respect to RIMS.
    2. User Rights
      TavlaSolutions claims no ownership or control over any content submitted, posted or displayed by User on or through RIMS. User or a third party licensor, as appropriate, retain all patent, trademark and copyright to any content User submits, posts or displays on or through RIMS and User is responsible for protecting those rights, as appropriate. By submitting, posting or displaying Content on or through RIMS, User grants TavlaSolutions a worldwide, non-exclusive, royalty-free license to reproduce, adapt, distribute and publish such content through RIMS, including content feeds offered through RIMS.
  3. DISCLAIMER
    USER ACKNOWLEDGES THAT RIMS AND DATA PROVIDED BY USER OR OTHER THIRD PARTIES THAT MAY HAVE BEEN INCORPORATED INTO RIMS BY TavlaSolutions IS PROVIDED “AS IS”, AT USER’S SOLE RISK. TavlaSolutions MAKES NO REPRESENTATION OR WARRANTY IMPLIED OR OTHERWISE, OF ANY KIND WITH RESPECT TO THE DATA IT RECEIVES FROM USER OR OTHER THIRD PARTIES. User is the sole proprietor of the data, and TavlaSolutions assumes no responsibility or liability for such data. RIMS is used as a mechanism for entering, maintaining, updating and transmitting data previously residing in the User database or the FRA National Inventory database. User will use RIMS as outlined in the Statement of Services and License attached as “Exhibit A”, and User shall hold harmless and indemnify TavlaSolutions and its agents from claims that may result from the use of RIMS, or data entered, stored or distributed in or through RIMS. Neither party shall be liable to the other party for any indirect, direct, incidental, or consequential damages related to or arising out of the use of the data, reports or RIMS under this EULA. TavlaSolutions’ internet based hosted application (RIMS) has no control over the conditions or computer configurations or systems under which User uses RIMS and, therefore, cannot warrant its use. User accepts the risks associated with and the responsibility for any damage to hardware, software, computer systems or networks related to the use of RIMS and the data. TavlaSolutions does not warrant that: (1) the use and/or access of or to RIMS will be uninterrupted or error free, (2) RIMS will operate correctly on all computer configurations or systems, or, (3) that the website or server that makes RIMS and/or the data available is free of viruses or other harmful components.
  4. WAIVER OF LIABILITY
    USER EXPRESSLY UNDERSTANDS AND AGREES THAT TavlaSolutions AND ITS OFFICERS, CONSULTANTS, INDEPENDENT CONTRACTORS, DIRECTORS, EMPLOYEES, SUPPLIERS AND AUTHORIZED AGENTS, SHALL NOT BE LIABLE FOR ANY MONEY DAMAGES WHATSOEVER ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE RIMS APPLICATION, INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY TYPE OR NATURE, INCLUDING BUT NOT LIMITED TO, BUSINESS INTERRUPTION, DAMAGES FROM LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES RESULTING FROM, RELATING TO OR ARISING OUT OF USER’S ACCESS TO AND/OR USE OF RIMS.
  5. AUTHORIZED USERS AND PERMITTED USES
    Access to the data shall be controlled by TavlaSolutions through the use of passwords. Any use of RIMS shall be on the terms and conditions set forth in this EULA. User shall not use RIMS for any purpose other than the purposes specifically set forth in this EULA. User shall not permit anyone to use RIMS other than employees of User whose job duties require access to RIMS. User shall not modify or create a derivative work of RIMS without the prior written consent of TavlaSolutions. Other than as specifically permitted in this EULA, User may not use RIMS for commercial purposes, including but not limited to the sublicense, sale, lease, assignment, loan, gift, bulk reproduction or distribution. TavlaSolutions reserves the right to suspend or terminate User’s access to RIMS if User violates this Section 7 or otherwise causes a security risk or adversely affects other users.
  6. INDEMNITY
    User shall indemnify, protect, defend and hold harmless TavlaSolutions, its officers, directors, employees, suppliers and authorized agents from and against any and all damages, costs, losses, expenses (including attorneys’), liabilities, claims and causes of action of any nature whatsoever that may be made against Indemnitees or that Indemnitees may incur resulting from, relating to or arising out of User’s access to and/or use of RIMS and the Data (hereinafter referred to as “Claims”).
  7. THIRD PARTY RIGHTS/NO THIRD PARTY BENEFICIARIES
    Nothing in this EULA creates, or shall be construed to create, any rights or benefits to, any contractual relationship with, or any cause of action in favor of, any person or entity other than TavlaSolutions and User.
  8. NO ASSIGNMENT
    Neither TavlaSolutions nor User shall assign, transfer or pledge this EULA or any of their rights or interests hereunder, without the prior written consent of the other party in such party’s sole discretion.
  9. BINDING AGREEMENT
    All of the covenants, conditions and provisions of this EULA shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns.
  10. TERM OF LICENSE FOR DEMONSTRATION OR TRIAL USE
    If the license granted under this EULA is for a demonstration or trial use of RIMS, such license is effective from acceptance of this EULA and shall remain in force for a period of sixty days from that date. Any extensions of the term shall only be by separate written agreement between the Parties.
  11. FORCE MAJEURE
    Neither Party shall be liable to the other, or be deemed to be in breach of this EULA, by reason of any delay in performing, or failure to perform, any of its obligations under this agreement if the delay or failure was beyond that party's reasonable control (including without limitation fire, flood, explosion, epidemic, riot, civil commotion, any strike, lockout or other industrial action, act of God, war, warlike hostilities or threat of war, terrorist activities, accidental or malicious damage and any prohibition or restriction by any government or other legal authority which affects this agreement and which is not in force on the date of this agreement).
  12. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS
    1. Maintenance of Copyright Notices.
      You must not remove or alter any copyright notices on any and all copies of the RIMS PRODUCT.
    2. Prohibition on Reverse Engineering, Decompilation, and Disassembly.
      You may not reverse engineer, decompile, or disassemble the RIMS PRODUCT, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. You shall not, and shall not attempt to, remove, disable, circumvent or otherwise create or implement any workaround to, any copy protection or security features.
    3. No Sublicense or Rental.
      You may not sub-license, rent, lease, or lend the RIMS PRODUCT.
    4. Support Services.
      TavlaSolutions may provide you with support services related to the RIMS PRODUCT (“Support Services”).
    5. Compliance with Applicable Laws.
      You must comply with all applicable laws regarding use of the RIMS PRODUCT.
  13. RESPONSIBILITY FOR USE OF RIMS
    User is responsible and liable for all uses of RIMS through access thereto provided by User, directly or indirectly. Specifically, and without limiting the generality of the foregoing, User is responsible and liable for all actions and failures to take required actions with respect to RIMS by its authorized users or by any other person to whom User or an authorized user may provide access to or use of RIMS, whether such access or use is permitted by or in violation of this EULA.
  14. TERMINATION
    Without prejudice to any other rights, TavlaSolutions may terminate this EULA if you fail to comply with the terms and conditions of this EULA.
  15. GOVERNING LAW
    This EULA shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of California.