END USER LICENSE AGREEMENT FOR THE TUNA SOFTWARE

PLEASE READ THIS END USER LICENSE AGREEMENT (THIS “EULA”) CAREFULLY. BY TAKING ANY STEP TO DOWNLOAD, SET-UP, INSTALL OR USE ALL OR ANY PORTION OF THE TUNA SOFTWARE OR ANY RELATED FILES (INCLUDING ALL TOOLS, UTILITIES, SAMPLE CODE, DOCUMENTATION, FONTS, IMAGES, AND OTHER MATERIALS ACCOMPANYING THIS LICENSE, WHETHER ON DISK, PRINT OR ELECTRONIC DOCUMENTATION, IN READ ONLY MEMORY, OR ANY OTHER MEDIA, COLLECTIVELY THE “PRODUCT”) YOU AND/OR YOUR COMPANY (“LICENSEE”) ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ACQUIRE THIS PRODUCT FOR YOUR COMPANY’S USE, YOU REPRESENT THAT YOU ARE AN AUTHORIZED REPRESENTATIVE WHO HAS THE AUTHORITY TO LEGALLY BIND YOUR COMPANY TO THIS EULA. IF LICENSEE DOES NOT AGREE TO THIS EULA, LICENSEE MAY NOT USE THIS PRODUCT.

  1. Ownership. The Tuna Platform, Inc. and its affiliates (“TunaCo”) and suppliers own the Product and all of the related intellectual property rights. The structure, organization and code of the Product are the valuable trade secrets and confidential information of TunaCo, and the Product is protected by law.
  2. Product License. Subject to the terms of this EULA, upon accepting this License Agreement and becoming a Licensee in accordance with paragraphs 3 below, TunaCo grants to Licensee a personal, non-exclusive, non-transferable, royalty-free limited license to install and use the Product, which license may be terminated by TunaCo at any time by notice to Licensee . Use of any third party materials which may be included in the Product may be subject to other terms and conditions typically found in a separate license agreement or “Read Me” file located near such materials. Except as expressly stated herein, this EULA does not grant Licensee any intellectual property rights or other rights (including the goodwill relating thereto) in the Product and all rights not expressly granted are reserved by TunaCo and its suppliers.
  3. Acceptance of the License. In order to use the Services, you must first agree to the terms of this EULA (the “Terms.”) You may not use the Services if you do not accept the Terms. The Terms are accepted by you upon either downloading and/or actually using the Product, and by doing so understand and agree that TunaCo will treat your use of the Product as acceptance of the Terms from that point onwards, and in ether case from that point onwards you and/or your company, as discussed above, become the Licensee.
  4. Restrictions. Licensee may not:
    1. Create derivative works based on the Product or any part or component thereof including but not limited to the Software;
    2. Reproduce the Product in whole or in part;
    3. Sell, assign, license, disclose, or otherwise transfer or make available the Product in whole or in part to any third party;
    4. Alter, translate, decompile, or attempt to reverse engineer the Product or any part of component thereof, subject to applicable law which permits such activity notwithstanding this contractual prohibition; or
    5. Remove or alter any proprietary notices or marks on the Product.
  5. Updates. Licensee acknowledges that TunaCo and its assigns reserve the right to upgrade, modify, update, version and otherwise make changes to the Product. If Licensee receives an update or an upgrade to, or a new version of the Product (an” Update”), such Update is subject to the Terms and this EULA. Licensee understands that neither TunaCo nor any affiliate or supplier of TunaCo has any obligation to provide support, maintenance, Updates, or Updates to the Product under this EULA or otherwise.
  6. NO WARRANTY. THE PRODUCT IS OFFERED ON AN “AS-IS” BASIS AND NO WARRANTY, EITHER EXPRESS OR IMPLIED, IS GIVEN. TUNACO AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
  7. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL, AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TUNACO OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE PRODUCT OR ANY PART OR COMPONENT THEREOF, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THE EULA, EVEN IN THE EVENT OF THE FAULT, TORT, STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY OF TUNACO OR ITS SUPPLIERS, AND EVEN IF TUNACO OR ITS SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  8. LIMITATION OF LIABILITY. NOTWITHSTANDING ANY DAMAGES THAT LICENSEE MIGHT INCUR FOR ANY REASON WHATSOEVER THE ENTIRE LIABILITY OF TUNACO AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS EULA AND LICENSEE’S EXCLUSVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED AND IN NO EVENT WILL TUNACO OR ITS SUPPLIERS TOTAL CUMULATIVE DAMAGES EXCEED THE FEES PAID BY LICENSEE TO TUNACO FOR THE PRODUCT.
  9. Indemnification. By accepting the EULA, Licensee agrees to indemnify and otherwise hold harmless TunaCo, its officers, employee, agents, subsidiaries, affiliates, and other partners from any direct, indirect, incidental, special, consequential or exemplary damages arising out of, relating to, or resulting from Licensee’s use of the Product or any other matter relating to the Product.
  10. International Trade Compliance. The Software and any related technical data made available for download under this EULA is subject to the customs and export control laws and regulations of the United States ("U.S.") and may also be subject to the customs and export laws and regulations of the country in which the download is contemplated. Further, under U.S. law, the Software and any related technical data made available for download under this EULA may not be sold, leased or otherwise transferred to restricted countries, or used by a restricted end-user or an end-user engaged in activities related to weapons of mass destruction including, without limitation, activities related to designing, developing, producing or using nuclear weapons, materials, or facilities, missiles or supporting missile projects, or chemical or biological weapons. You acknowledge that you are not a citizen, national, or resident of, and are not under control of the government of Cuba, Iran, North Korea, Sudan or Syria, and that you will not download or otherwise export or re-export the Software and any related technical data directly or indirectly to the above mentioned countries nor to citizens, nationals, or residents of those countries.
  11. General.
    1. This EULA between will be governed by and construed in accordance with the laws of the State of New York without regard to conflict of laws principles. Notwithstanding the foregoing sentence, (but without limiting TunaCo's right to seek injunctive or other equitable relief in any court of competent jurisdiction), any disputes arising with respect to this EULA shall be referred to an arbitrator affiliated with JAMS, The Resolution Experts. The arbitrator shall be selected by joint agreement of the parties. In the event the parties cannot agree on an arbitrator within thirty (30) days of the initiating party providing the other party with written notice that it plans to seek arbitration, the parties shall each select an arbitrator affiliated with JAMS, which arbitrators shall jointly select a third such arbitrator to resolve the dispute. The written decision of the arbitrator shall be final and binding on the parties. The arbitration proceeding shall be carried on and heard in New York, New York, using the English language and pursuant to the rules of JAMS. In any action or proceeding to enforce rights under the Terms, the prevailing party will be entitled to recover costs and attorneys' fees.
    2. The EULA constitutes the entire agreement between TunaCo and Licensee and governs Licensee’s use of the Product, superseding any prior agreement between Licensee and TunaCo relating to the subject matter hereof. Notwithstanding the foregoing, Licensee acknowledges and agrees that TunaCo and its assigns reserve the right to modify, update or cancel this EULA or any of the Terms at any time, by posting notice of the same on the TunaCo website, and such change or cancellation shall be deemed effective 48 hours following such posting.
    3. If any provision of this EULA is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of the EULA will remain in force and effect. No agency, partnership, joint venture, or employment is created as a result of the Terms and Licensee does not have any authority of any kind to bind TunaCo in any respect whatsoever.
    4. The Product and any related technical data are provided with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to the restrictions as set forth in subparagraph (c)(1)(iii) of DFARS 252.227-7013 (The Rights in Technical Data and Computer Product) or subparagraphs (c)(1) and (2) of 48 CFR 52.227-19 (Commercial Computer Product – Restricted Rights), as applicable. The manufacturer is TunaCo.
    5. Licensee may not assign this EULA, and any attempted assignment will be null and void. TunaCo may transfer, assign or delegate the Terms and its rights and obligations without consent.
    6. TunaCo, the TunaCo logo, and other TunaCo names and logos are the trademarks of TunaCo.
    7. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.