This End User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and Immunix, Inc. ("Immunix") or a manufacturer authorized by Immunix ("Manufacturer") of the computer system or computer system component ("Hardware") with which you acquired the Immunix software product(s) ("Software Products"). The Software Products include computer software, and may include associated media, printed materials, and "online" or electronic documentation proprietary to Immunix. Additional software provided along with the Software Products may be licensed under a separate end-user license agreement included in the individual data file packages and is licensed to you under the terms of that license agreement ("Third Party Products"). By installing, copying, downloading, accessing or otherwise using the Software Products, you agree to be bound by the terms of this EULA (this "Agreement") and the licensing terms for Third Party Products. If you do not agree to the terms of this Agreement, Immunix and Manufacturer are unwilling to license the Software Products to you. In such event, you may not use or copy the Software Products, and you should promptly contact Immunix or Manufacturer for instructions on return of the unused Software Product(s) for a refund.

1.1 "Designated Equipment" means either (a) the Hardware equipment provided to End User in which Licensed Products is embedded or (2) the equipment with which End User intends to use a standalone version of the Licensed Products.

1.2 "Documentation" means materials such as users' manuals in any format related to the Software.

1.3 "Licensed Products" means software and documentation that is proprietary to Immunix provided to you under this Agreement.

1.4 "Proprietary Information" means: (a) software processes, (b) marketing, business, or other strategies or plans, and (c) any other trade secrets marked appropriately or identified as "proprietary or confidential" to Immunix or its licensors. Proprietary Information includes the internal design and implementation techniques of the Licensed Products and the source code of the Licensed Software. Excluded is any information that the receiving party can establish was (1) in the public domain, (2) already in its possession or rightfully known prior to receipt, (3) rightfully learned from a third party not in violation of any other's proprietary rights, or (4) independently developed.

1.5 "Licensed Software" means any computer program proprietary to Immunix or its licensors in machine readable form furnished to End User under this Agreement including any related update or upgrade such as enhancements or modifications.

1.7 "Use" means storing, loading, installing, executing, or displaying any portion of the Licensed Products by End User on any hardware device, including but not limited to, the Designated Equipment.

2.1 The license granted to End User by Immunix shall be a non-exclusive, non-transferable license to use Licensed Software on the Designated Equipment in machine-readable form only, solely for End User's internal business purposes (Authorized Use). End User is not entitled to receipt or use of the source code to any Licensed Software. End User shall not modify, decompile, disassemble or otherwise reverse engineer the Licensed Products.

2.2 The terms of this Agreement apply to all software of Immunix or its licensors whether obtained by End User directly from Immunix, from Manufacturer, or indirectly from a third party.

2.3 Immunix or Manufacturer may, at their option, provide End User with evaluation or demonstration licenses under this Agreement on an as-is basis for a time period specified by Immunix only for the purpose of determining whether to acquire a long-term license to the products.

3.1 End User may copy Licensed Products only as reasonably necessary to support the Authorized Use.

3.2 End User shall maintain, reproduce and include in all copies of Licensed Products all intellectual property notices and legends included in Licensed Products as received from Immunix or Manufacturer and shall affix to the copy and the container housing the medium all notices and legends affixed to the medium or container as received from Immunix or Manufacturer .

3.3 The original and all copies of Licensed Products whether provided by Immunix, Manufacturer, or made by End User, shall be and remain the property of Immunix.

3.4 End User shall maintain a record of the number and location of all copies made of Licensed Products including Licensed Products that has been merged with other software and make such record available to Immunix or Manufacturer upon request.

3.5 End User shall completely erase the Licensed Products from the storage media of any Designated Equipment prior to disposing of or retiring such equipment from active use or upon termination of this Agreement. End User must return or destroy all other copies upon termination.

3.6 Immunix or Manufacturer may, at its option, grant End User written permission to reproduce certain Documentation.

4.1 Unless otherwise agreed in writing, prices for Software Products will be as set forth in Immunix's price list. Prices and license fees do not include freight, insurance, sales tax, customs duties or other similar charges. Any such charges or taxes will be added to the price or separately invoiced to End User unless End User provides Immunix or Manufacturer with a certificate of exemption from the applicable taxing authority.

4.2 Any reproduction, reverse-engineering, electronic transfer, or other use of the Licensed Products on other than the Designated Equipment at the Designated Site will be a material breach of this Agreement.

4.4 The license granted under this Agreement does not include technical support. End User may obtain support for Licensed Software from Immunix or Manufacturer at the support fees, terms, and conditions currently in effect.

The license set forth in this Agreement does not transfer to End User any ownership of Immunix's, Manufacturer's, or their respective licensors' copyrights, patents, trademarks, service marks or trade secrets or other intellectual property rights and End User shall have no right to commence any legal actions to obtain such rights.

6.1 Confidentiality. Proprietary Information shall remain confidential and proprietary to Immunix and its licensors. The provisions of this Section 6 shall survive termination of this Agreement.

6.2 Protection of Confidentiality. End User shall not disclose, provide or otherwise make available the Proprietary Information of Immunix or its licensors to any person other than authorized employees or contractors under confidentiality agreement or use the Proprietary Information for other than the Authorized Use without Immunix's prior written consent. End User shall take at least reasonable steps to protect the Proprietary Information and shall protect it, through instructions to its employees, access limitations, and the like, no less securely than if it were End User's own intellectual property. No media containing the Licensed Software, or any Documentation shall be transferred, reproduced or used in any way other than as provided by this Agreement.

7.1 Immunix and Manufacturer warrant that Licensed Software will conform substantially to the applicable Documentation for a period of thirty (30) days from delivery to End User. During this period, for all reproducible nonconformities, Immunix and Manufacturer will use commercially reasonable efforts to remedy the nonconformities. For all defects reported to Immunix within the warranty period, the liability of Immunix is limited to providing End User with one copy of corrections of each Licensed Software product, and, if End User has technical support, to respond to End User's software problem reports according to Immunix's standard support practices. Neither Immunix nor Manufacturer warrant that the products will meet End User's requirements or that use of the products will be uninterrupted or error free, or that remedial efforts will correct any nonconformance.

7.2 EXCEPT AS PROVIDED IN THIS SECTION 7, IMMUNIX AND MANUFACTURER MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO LICENSED PRODUCTS, AND SPECIFICALLY MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

8.1 Immunix shall defend or settle at its option and expense any action brought against End User alleging that any Licensed Software product furnished by Immunix under this Agreement infringes a United States patent or copyright and Immunix will pay any costs, damages and attorney's fees finally awarded against End User that are attributable to such claim, provided the End User (a) notifies Immunix promptly in writing of the action, (b) provides Immunix all reasonable information and assistance to settle or defend the action and (c) grants Immunix sole authority and control of the defense or settlement of the action.

8.2 If any Licensed Product becomes, or Immunix's opinion is likely to become, the subject of a claim of infringement, or a final injunction is issued against End User's use of any Licensed Software product, Immunix may at its option and expense either (a) replace or modify the product so that it becomes non-infringing or otherwise lawful or (b) procure for End User the right to continue using the product. If neither of the foregoing alternatives is reasonably available, Immunix will accept the return of the Licensed Software product and will refund to End User the purchase price paid hereunder.

8.3 Immunix shall have no liability if the alleged infringement is based upon (a) the combination of Licensed Software with any software product not furnished by Immunix to End User, (b) the modification of Licensed Software other than by Immunix, (c) the use of Licensed Software as part of any infringing process, or (d) the use of other than a current unaltered release of Licensed Software. This Section 8 states Immunix's and Manufacturer's entire liability and the sole and exclusive remedy of End User with respect to any alleged patent or copyright infringement by any product.

EXCEPT AS PROVIDED IN SECTION 8, NEITHER IMMUNIX NOR MANUFACTURER SHALL BE LIABLE FOR ANY CLAIMS AGAINST END USER BY ANY OTHER PARTY NOR SHALL IMMUNIX'S OR MANUFACTURER'S LIABILITY FOR DAMAGES, IF ANY, WHETHER BASED UPON CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT, WARRANTY OR ANY OTHER BASIS, EXCEED THE PRICE OR FEE PAID BY END USER FOR THE PRODUCT. NEITHER IMMUNIX NOR MANUFACTURER SHALL BE LIABLE FOR LOSS OF PROFITS, LOSS OF DATA, INTERRUPTION OF SERVICE, OR FOR ANY OTHER SPECIAL, CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES, EVEN IF IMMUNIX AND MANUFACTURER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. END USER MAY NOT BRING ANY ACTION UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER MORE THAN TWO (2) YEARS AFTER THE OCCURRENCE GIVING RISE TO SUCH CAUSE OF ACTION.

The restrictions in this Section 10 apply if End User is an agency of the U.S. Government or if Licensed Software is licensed for use in the performance of a U.S. Government prime contract or subcontract. End User agrees that Licensed Software is delivered as "Commercial Computer Software" as defined in DFARS 252.227-7013 if used by or in the performance of a contract with the Department of Defense (DoD) or "restricted computer software as defined in FAR 52.227-19 if used by, or in the performance of a contract with a non-DoD U.S. Government agency. End User agrees that the Licensed Software has been developed entirely at private expense, all applicable contracts or subcontracts will contain provisions necessary to assure the adequate protection of the Licensed Software and the Licensed Software is adequately marked when the Restricted Rights Legend below is affixed to the Licensed Software:

Use, duplication, or disclosure by the U.S. Government is subject to the restrictions as set forth in the U.S. Federal Acquisition Regulations (FAR) 52.227-14(g), or 52.227-19 or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 52.227-7013, whichever is applicable.

Either party may terminate this Agreement or any license granted under this Agreement at any time upon written notice if the other party fails to comply with any material term or condition. Upon termination of any license, End User shall return to Immunix or Manufacturer Licensed Products covered by this Agreement, including any copies made of Licensed Products, and shall furnish to Immunix or Manufacturer a certificate of compliance with this provision signed by an officer or authorized representative of End User. Termination shall not relieve End User of any surviving obligations under this Agreement.

12.1 Entire Agreement; Amendment. This document contains the entire agreement between the parties relating to the subject matter contained herein and supersedes all prior or contemporaneous agreements, written or oral, between the parties. This Agreement may not be modified except by written document signed by an authorized representative of each party.

12.2 Export. End User warrants that it will not export, either directly or indirectly, any Licensed Products without first obtaining all necessary approvals from the U.S. Department of Commerce or any other required agency or department of the United States Government.

12.3 Notice. All notices required or authorized under this Agreement shall be given in writing and shall refer to this Agreement by number. All notices shall be effective upon delivery if delivered in person or upon mailing if mailed at a U.S. Post Office, first class mail, postage prepaid, addressed or delivered to either party at the address listed on page one of this Agreement, or at such other address that either party provides by advance written notice to the other party.

12.4 Waiver. If either party fails to perform any of its obligations under this Agreement and the other party fails to enforce the relevant provisions, such failure to enforce shall not prevent its later enforcement.

12.5 Assignment. Immunix may assign any of its duties with respect to installation, warranty or maintenance service to third parties. No such assignment shall relieve Immunix of its obligations under this Agreement. This Agreement and the rights under it may not be sublicensed, assigned or otherwise transferred by End User without the prior written consent of Immunix.

12.6 Severability. Should any clause or section of this Agreement be determined to be invalid or unenforceable, that provision shall be interpreted so as to most closely reflect the original intent of the parties in an enforceable manner and the remainder of the Agreement will remain in full force and effect.

12.7 Controlling Law. This Agreement shall be governed by the laws of the State of Oregon, United States of America, excluding choice of law provisions.

12.8 Attorneys Fees. In the event an action is brought to enforce the terms and conditions of this Agreement, the prevailing party shall be entitled to reasonable attorney fees, both at trial and on appeal.