Agreement

READ THE TERMS OF THIS EVALUATION LICENSE AGREEMENT (THE  "AGREEMENT") CAREFULLY BEFORE INSTALLING THE ACCOMPANYING SOFTWARE.

The Fork Particle software (the "Software") and the accompanying  documentation (the "Documentation") supplied (collectively, the  "Product") are protected by United States, and international  copyright laws, and the copyrights and other intellectual property  rights are owned by Fork Particle. This license is granted by Fork  Particle to customers. The Product is copyrighted and licensed (not  sold). By installing the Software, you (the "Licensee") are  accepting and agreeing to the terms of this Agreement. If you are  not willing to be bound by the terms of this Agreement, you should  promptly return the Product within fourteen days, and you will  receive a refund of the amount you paid, if any.

1. OWNERSHIP

The Software (including any header files and demonstration code  that may be included) and Documentation, and all associated  copyrights and other intellectual property rights, are the property  of Fork Particle or its licensors. Licensee acquires no title, right  or interest in the Product other than the license granted herein by  Fork Particle and the title to the media upon which the Product is  delivered.

2. PROPRIETARY NOTICES

Licensee shall not remove any trademark, trade name, copyright  notice or other proprietary notice from the Software or  Documentation, and shall be responsible for the conservation of same  on all copies of the Software and Documentation. Licensee may not  reproduce any portion of the Software or Documentation, except as  permitted by this Agreement.

3. LICENSE

(a) Subject to the terms and conditions of this Agreement, and  payment of the appropriate license fees, Fork Particle hereby grants  to Licensee a nonexclusive, nontransferable, internal, limited  license to evaluate the Product at Licensee's premises only. The  Product is provided for evaluation, demonstration, prototyping,  testing, and/or proof of concept purposes only; no commercial  product development work is authorized under this Agreement, whether  such developed software is used internally or distributed to end  users.

(b) The source code of the Software (other than included header  files and demonstration code) and design documentation are  confidential and proprietary information and trade secrets of Fork  Particle, its suppliers and/or licensors, are never considered part  of the Software, and are neither delivered to Licensee nor under any  circumstances licensed to Licensee hereunder.

4. COPY RESTRICTIONS AND OTHER RESTRICTIONS

(a) Licensee may make such reasonable number of copies of the  Product as are necessary to exercise Licensee's rights under this  Agreement, provided that such copies shall include all applicable  copyright, trademark and other proprietary notices of Fork Particle  in accordance with Section 2 above.

(b) Licensee will not display or disclose the Product to third  parties, rent, lease, loan, sub-license, modify, adapt, translate,  reverse engineer, disassemble or decompile the Product or any  portion thereof, or create derivative works of the Product even for  purposes of interoperability or error correction. If Licensee  desires information relating to the Software for purposes of  achieving interoperability with independently created computer  software, Licensee may make a written request to Fork Particle for  such information. Licensee shall promptly report to Fork Particle  any actual or suspected violation of this section and shall take  further steps as may reasonably be requested by Fork Particle to  prevent or remedy any such violation.

5. U.S. GOVERNMENT END-USERS

The Software and the Documentation are "commercial items" as that  term is defined in applicable U.S. C.F.R. clauses; if the licensee  hereunder is the U.S. Government or any agency or department  thereof, the Software and the Documentation are licensed hereunder  (i) only as a commercial item, and (ii) with only those rights as  are granted to all other end users pursuant to the terms and  conditions of this Agreement.

6. SUPPORT

Support services for the Software are available from Fork  Particle for the term of this Agreement and may be requested by  Licensee by means of Electronic Mail (E-Mail) or Facsimile.

7. DURATION

This Agreement is effective from the date this Software is  installed by Licensee and shall remain in force for Thirty (30)  days, unless any other period is specified by Fork Particle in  writing (including email) and unless earlier terminated as provided  for herein.

8. REPLACEMENT AND EXCLUSION OF WARRANTIES

(a) Should the Product prove defective, the Licensee's sole  remedy shall be to request a new copy of the Product from Fork  Particle that may be granted or withheld by Fork Particle at its  sole discretion.

(b) FORK PARTICLE SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE  FUNCTIONS CONTAINED IN THE SOFTWARE OR THE RESULTS OF USE WILL MEET  LICENSEE'S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL  BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH ABOVE,  THE PRODUCT IS PROVIDED TO LICENSEE "AS IS" WITHOUT WARRANTY OF ANY  KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING,  BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY,  FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE ENTIRE  RISK AS TO THE SUITABILITY, QUALITY AND PERFORMANCE OF THE PRODUCT  IS WITH LICENSEE AND NOT WITH FORK PARTICLE. This disclaimer of  warranty constitutes an essential part of this Agreement.

9. LIMITED LIABILITY

IN NO EVENT SHALL FORK PARTICLE, ITS SUPPLIERS OR LICENSORS BE  LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL,  PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO,  DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF  BUSINESS INFORMATION, DATA, GOODWILL OR OTHER PECUNIARY LOSS)  ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF  FORSEEABLE OR IF FORK PARTICLE HAS BEEN ADVISED OF THE POSSIBILITY  OF SUCH DAMAGES. IF FORK PARTICLE IS HELD LIABLE UNDER THIS  AGREEMENT, FORK PARTICLE'S, ITS SUPPLIERS' AND LICENSORS' LIABILITY  SHALL BE LIMITED TO THE PRICE PAID BY THE LICENSEE FOR THE PRODUCT  SUPPLIED.

10. ASSIGNMENT

This Agreement and any rights granted hereunder may not be  assigned, sub-licensed or otherwise transferred by Licensee to any  third party without the prior written consent of Fork Particle. Fork  Particle may assign or transfer its rights and obligations under  this Agreement at any time without notice to or the consent of  Licensee.

11. TERMINATION

(a) This Agreement and the license granted hereunder will  terminate immediately if Licensee breaches any of the provisions of  this Agreement. This Agreement and the license granted hereunder may  be terminated by Fork Particle at any time upon written notice to  Licensee.

(b) Upon termination of this Agreement and of the license granted  hereunder, Licensee shall cease any further use of the Product, and  must return to Fork Particle or destroy, as requested by Fork  Particle, all copies of the Software and Documentation in any form  in Licensee's possession or control.

(c) The provisions of Sections 1, 2, 8, 9, and 11-16 and the  definitions of this Agreement shall survive the termination of this  Agreement (for any reason). On termination, Licensee must promptly  pay to Fork Particle any amounts payable by Licensee.

12. WAIVER

No modification or waiver of any provision of this Agreement  shall be binding on either party unless specifically agreed upon in  a writing signed by both parties. Any failure or delay by Fork  Particle to exercise or enforce any of the rights or remedies  granted hereunder will not operate as a waiver thereof. No waiver by  Fork Particle of any breach of this Agreement will operate as a  waiver of any other or subsequent breach.

13. SEVERABILITY

If any provision of this Agreement is found invalid or  unenforceable, that provision will be reformed, construed and  enforced to the maximum extent permissible, and the other provisions  of this Agreement will remain in full force and effect.

14. LAW AND JURISDICTION

This Agreement will be governed by the laws of the State of  California, without regard to its conflict of laws provisions.

15. EXPORT ADMINISTRATION ACT.

Licensee will not import, export or re-export the Product (or  portion thereof) to or from any country in contravention of any  applicable import or export laws. Fork Particle will provide  reasonable product information to assist Licensee in discharging its  obligations under this section.

16. ENTIRE AGREEMENT

Licensee has read this Agreement and agrees to be bound by its  terms, and further agrees that, unless the parties have entered into  a signed development license agreement relating to the subject  matter hereof (a "Signed Agreement"), this Agreement constitutes the  complete and entire agreement of the parties and supersedes all  previous communications, oral or written, and all other  communications between them relating to the subject matter hereof.  If, however, the parties have entered into a Signed Agreement, to  the extent of any inconsistency, such Signed Agreement shall take  precedence over the terms of this Agreement. No representations or  statements of any kind made by either party, which are not expressly  stated herein, shall be binding on such party.