END USER SOFTWARE LICENSE AGREEMENT

PLEASE READ THIS END USER SOFTWARE LICENSE AGREEMENT (“End User Agreement”) CAREFULLY BEFORE USING THE SOFTWARE. BY USING THIS SOFTWARE,
 
YOU ARE AGREEING TO USE THE SOFTWARE SOLELY IN ACCORDANCE WITH ITS INTENDED USE AND YOU ARE CONSENTING TO BE BOUND BY THIS END USER AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS END USER AGREEMENT, PROMPTLY RETURN AND DO NOT USE THE SOFTWARE.
 
Single User License. Subject to the terms and conditions of this End User Agreement, Celsia, LLC, doing business as Gaia Geothermal (“Gaia”) and its suppliers grant to you (“Customer”) a non-exclusive, non-transferable dongle-based license to use the GROUND LOOP DESIGN™ software program in object code form and all related materials included herewith, including written materials, binders and other containers (hereinafter the "Software") on supported operating systems.

Use. Upon: a) receipt of full payment by Gaia, or a Gaia authorized reseller of the applicable license fees, Customer will be able to use this Software during the active Annual Software License period, pursuant to the limitations set forth herein. 

Limitations. Customer’s full use of this Software is limited to the number of authorized licenses Customer has purchased. Customer agrees to use reasonable efforts to protect the Software from any unauthorized use, modification, reproduction, distribution and publication. Customer may not transfer any of the rights granted to Customer hereunder, unless Customer receives prior written authorization from Gaia and only if Customer transfers all of Customer’s rights granted hereunder, without retaining any of the Software, or any copies thereof or any rights thereto. Except as otherwise expressly provided under this End User Agreement, Customer shall have no right, and Customer specifically agrees not to:
(i) make error corrections to or otherwise modify or adapt the Software nor create derivative works based upon the Software, or to permit third parties to do the same; or
(ii) copy, in whole or in part, decompile, translate, reverse engineer, disassemble or otherwise reduce the Software to human-readable form.

Upgrades and Additional Copies. For purposes of this End User Agreement, “Software” shall also include (and the terms and conditions of this End User Agreement shall apply to) any upgrades, updates, bug fixes or modified versions (collectively, “Upgrades”) or backup copies of the Software licensed or provided to Customer by Gaia or an authorized distributor for which Customer has paid the applicable license fees and holds the corresponding software keys. Notwithstanding the foregoing, Customer acknowledges and agrees that Gaia shall have no obligation to provide any Upgrades under this End User Agreement. If Upgrades are provided, Customer acknowledges and agrees that: (i) Customer has no license or right to use any such additional copies or Upgrades unless Customer, at the time of acquiring such copy or Upgrade, already holds a valid license to the original Software.

Notices of Proprietary Rights. Customer agrees to maintain and reproduce all trademark, copyright, patent, and notices of other proprietary rights on all copies, in any form, of the Software in the same form and manner that such trademark, copyright, patent, and notices of other rights are included on the Software. Except as expressly authorized in this End User Agreement, Customer shall not make any copies or duplicates of any Software without the prior written permission of Gaia. Customer may make such backup copies of the Software as may be necessary for Customer’s lawful use, provided Customer affixes to such copies all trademark, copyright, patent, and notices of other proprietary rights that appear on the original.

Proprietary Rights. Customer shall own the physical media on which the Software is recorded, but the Software is and will remain the sole and exclusive property of Gaia. Gaia’s rights under this Section will include, but not be limited to: (i) all copies of the Software, in whole and in part; and (ii) all Intellectual Property Rights in the Software. For purposes herein, “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights (including, but not limited to, rights in audiovisual works and moral rights), trade secret rights, rights of priority and any other intellectual property right recognized in any country or jurisdiction in the world. “Moral Rights” means any right to claim authorship to or to object to any distortion, mutilation, or other modification or other Page ii PREFACE - END USER SOFTWARE LICENSE AGREEMENT derogatory action in relation to a work, whether or not such would be prejudicial to the author’s reputation, and any similar right, existing under common or statutory law or any country in the world or under any treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right”.

Confidential Information. Customer agrees that Customer will not disclose or, except as expressly permitted in this End User Agreement, use any Software or other technical information disclosed to Customer by Gaia (“Confidential Information”), and that Customer will take all reasonable measures to maintain the confidentiality of all Confidential Information in Customer’s possession or control, which will in no event be less than the measures Customer uses to maintain the confidentiality of Customer’s own information of equal importance. Confidential Information will not include information that: (i) is in or enters the public domain without breach of this End User Agreement; (ii) Customer receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; or (iii) Customer develops independently, which Customer can prove with written evidence. Customer acknowledges that the Software is a trade secret of Gaia, the disclosure of which would cause substantial harm to Gaia that could not be remedied by the payment of damages alone. Accordingly, Gaia will be entitled to preliminary and permanent injunctive relief and other equitable relief for any breach of this Section.

Limited Warranty. Gaia warrants that the Software will substantially conform to its published specifications for a period of thirty (30) days from the later of receipt of the Software or receipt of access to the Software. Gaia further warrants that the media on which the Software is contained will be free from defects for a period of thirty (30) days from the later of receipt of the Software or receipt of access to the Software. This limited warranty extends only to Customer as the original licensee. Provided that (a) Customer has notified Gaia of such substantial non-conformance or defect during the applicable warranty period, and (b) Gaia has confirmed such Software or media to be substantially non-conforming or defective, as Customer’s sole and exclusive remedy and Gaia’s and its suppliers’ entire liability under this limited warranty, Gaia will, at its option, repair, replace, or refund the Software free of charge. Except as expressly provided in this End User Agreement, the Software is provided “AS IS” without warranty of any kind. Gaia does not warrant that the Software is error free or that Customer will be able to operate the Software without problems or interruptions. Gaia reserves the right to charge additional fees for repairs or replacements performed outside of the limited warranty period.

This warranty does not apply if the Software (i) is licensed for beta, evaluation, testing or demonstration purposes for which Gaia does not receive a license fee, (ii) has been altered, except by Gaia, (iii) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Gaia, (iv) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident, or (v) is used in ultrahazardous activities.

If the dongle license key becomes damaged, replacement keys can be obtained for a $150 fee. To obtain a replacement key for a damaged key, Customer must send the damaged key to Gaia, or a Gaia authorized reseller. In the case of a lost dongle license key, Customer will be charged the full list price of the Software to replace the lost dongle license key.

The authorized distributors of the Software, who are appointed by Gaia, are not permitted to alter the terms of this End User Agreement in any manner.

Disclaimer. EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. IN NO EVENT WILL GAIA OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE EVEN IF GAIA OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT SHALL GAIA’S OR ITS SUPPLIERS’ TOTAL LIABILITY TO CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE PRICE PAID BY CUSTOMER. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE ABOVESTATED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER.

Term and Termination. This End User Agreement is effective until terminated. Customer’s license rights under this End User Agreement will terminate immediately without notice from Gaia if Customer fails to comply with any provision of this End User Agreement. Upon termination, Customer must destroy all copies of Software and the corresponding keys in its possession or control.

Compliance With Law. Each party agrees to comply with all applicable laws, rules and regulations in connection with its activities under this End User Agreement. Without limiting the foregoing, Customer acknowledges and agrees that the Software, including technical data, is subject to United States export control laws, including the United States Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such regulations and acknowledges that Customer has the responsibility to obtain licenses to export, re-export, or import the Software.

Restricted Rights. The Software shall be classified as “commercial computer software” as defined in the applicable provisions of the Federal Acquisition Regulation (the “FAR”) and supplements thereto, including the Department of Defense (DoD) FAR Supplement (the “DFARS”). The parties acknowledge that the Software was developed entirely at private expense and that no part of the Software was first produced in the performance of a Government contract. If the Software is supplied for use by DoD, the Software is delivered subject to the terms of this End User Agreement and either (i) in accordance with DFARS 227.702-1(a) and 227.7202-3(a), or (ii) with restricted rights in accordance with DFARS 252.227-7013(c)(1)(ii) (OCT 1988), as applicable. If the Software is supplied for use by a Federal agency other than DoD, the Software is restricted computer software delivered subject to the terms of this End User Agreement and (i) FAR 12.212(a); (ii) FAR 52.227-19; or (iii) FAR 52.227-14 (ALT III), as applicable.

General. This End User Agreement will bind and inure to the benefit of each party’s successors and assigns, provided that Customer may not assign or transfer this End User Agreement, in whole or in part, without Gaia’s written consent. This End User Agreement shall be governed by and construed in accordance with the laws of the State of California, United States of America, as if performed wholly within the state and without giving effect to the principles of conflict of law. No failure of either party to exercise or enforce any of its rights under this End User Agreement will act as a waiver of such rights. If any portion hereof is found to be void or unenforceable, the remaining provisions of this End User Agreement shall remain in full force and effect. This End User Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and replacing any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter.