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INSITE SOFTWARE LICENSE AGREEMENT

This Agreement is provided with an initial copy of the INSITE TM Software and/or an
update, upgrade, or revision thereto (hereinafter the “Licensed Software” or the
"INSITETM Software"); and may be provided electronically or on a media from which the
Licensed Software is installed. By breaking the seal on such media or installing the
Licensed Software accompanied by this Agreement, you acknowledge your acceptance
of the provisions, terms and conditions of this Agreement, and acknowledge the
opportunity to review the same prior to such acceptance. If you do not accept the
provisions, terms and conditions of this Agreement, you may return within 30 days all
materials received in connection therewith for a complete refund of payment made for
the Licensed Software.

Use of the INSITE Software is provided in conjunction with training and access will only
be granted to the Licensed Software after successful completion of the training.

Cummins does not intend for the Electronic Control Module ("ECM") and/or the
Electronic Control Unit ("ECU") to be used for purposes of accident reconstruction nor
did Cummins design the ECM/ECU for purposes of accident reconstruction. The
ECM /ECU does not retrieve sudden deceleration event information with requisite
specificity for accident reconstruction. As such, the INSITE software is not intended to
retrieve data from the ECM/ECU for purposes of accident reconstruction. Furthermore,
only authorized personnel should use the INSITE software to retrieve data from the
ECM/ECU. Cummins does not guarantee the accuracy of ECM/ECU data retrieved and
interpreted by unauthorized third parties nor will Cummins interpret ECM/ECU data that
is retrieved by third parties.

RECITALS:

WHEREAS, Cummins has developed certain computer programs, related tables and
subfiles, and intends to develop updates thereto from time-to-time, for use in
diagnosing, repairing, maintaining, and programming electronic control modules
(“ECM”) of engines manufactured or sold by Cummins;

WHEREAS, Cummins and Licensee desire to establish a relationship pursuant to which


Licensee will obtain certain rights from Cummins with respect to the Licensed Software,
and Cummins will provide certain information and updates to Licensee, all for the
mutual benefit of Cummins and Licensee;

THEREFORE, in consideration of the above premises and the mutual covenants


contained herein, Cummins and Licensee agree as follows:

1. INSITE Software Functionality Levels

Licensee hereby agrees and acknowledges that the Licensed Software is offered by
Cummins in BASIC, LITE, RSGR, PRO and INDUSTRIAL, functionality levels, each of
which includes a unique set of features and/or functions (further details of which are
provided in Appendix A), and that the license grant under Section 2 of this Agreement

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shall be limited to the respective functionality level of the Licensed Software for which
Licensee has purchased or otherwise been granted a license. Licensee further hereby
agrees and acknowledges that unique terms and conditions pertaining to each
functionality level of the Licensed Software are set forth in this Agreement, and that
Licensee shall be bound by those terms and conditions set forth herein that are
applicable to the functionality level of the Licensed Software for which Licensee has
purchased a license.

2. License Grant and Restrictions

a. Cummins hereby grants to Licensee a limited, non-exclusive, non-transferable


and non-sub licensable license to use the Licensed Software solely to diagnose
and troubleshoot engines provided by Cummins and otherwise for the purposes
set forth in Appendix A for the functionality level provided to the Licensee for the
Licensed Software (collectively the “Purposes”). Each copy of the Licensed
Software is specifically licensed for use in a single facility of Licensee for its
intended purpose, and it may not be sublicensed, sold, or otherwise distributed.

b. Licensee may only load one activated copy of the Licensed Software onto a
single computer as required to use the Licensed Software for its intended
purpose. Licensee may also install inactive copies of the Licensed Software on
additional computers for use in the same facility of the Licensee for reference
purposes. Licensee may make a single backup or archival copy of the Licensed
Software. Licensee agrees to use the Licensed Software, and any updates or
upgrades to the Licensed Software, in strict accordance with Cummins’ published
service practices and/or product warranty guidelines for the Purposes Licensee
further agrees that its use of the Licensed Software shall be in compliance with
all applicable laws and regulations, including, without limitation, any federal, state
or local environmental regulations or ordinances. Any computers intended to
execute or store the Licensed Software shall comply with Cummins’ requirements
for the same. Any other use by Licensee is unauthorized and is not licensed
hereunder.

c. All rights relating to the Licensed Software not specifically granted to Licensee
pursuant to this Agreement shall be retained by Cummins.

d. Licensee acknowledges that the Licensed Software may include software that
Cummins has obtained or licensed from a third party, and Licensee agrees that
the terms and conditions of this Agreement shall be applicable to any such third-
party software. Licensee agrees to abide by any additional or modified terms and
conditions with respect to such third-party software if reasonably requested in
writing by Cummins and/or the third party.

e. It is understood by the Licensee that the Licensed Software cannot be activated


for communicating with an ECM in engines manufactured or sold by Cummins
until a Registration Database password is obtained and entered into the program.
In order to obtain a Registration Database password, Licensee must install the

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Licensed Software onto a single, designated computer of Licensee, such
computer being compliant with Cummins’ requirements. Once proper installation
is complete, a registration code shall be sent to Cummins from Licensee’s
computer for registration and, upon validation by Cummins, a password for
activating the Licensed Software will be sent to Licensee.

(i) For Licensees of the LITE, RSGR, INDUSTRIAL and PRO functionality
levels of the Licensed Software, the password provided by Cummins shall
be valid for activating the Licensed Software upon initial installation of the
Licensed Software on a first computer, and for activating the Licensed
Software upon transfer of the Licensed Software from the first computer to
a second computer, provided however that any such transfers shall be
limited to one per year per password. In the event more than one transfer
per year of the LITE, RSGR, INDUSTRIAL or PRO functionality levels of
the Licensed Software is necessary, Licensee shall notify Cummins and
Cummins may, in its sole discretion, permit one or more additional
transfers of the Licensed Software.

(ii) For Licensees of the BASIC functionality level of the Licensed


Software, transfers of the Licensed Software are not permitted and will not
be supported by the password provided by Cummins. In the event a
transfer of the BASIC functionality level of the Licensed Software from the
computer on which it initially installed is necessary, Licensee shall notify
Cummins and Cummins may, in its sole discretion, permit the transfer of
the BASIC functionality level of the Licensed Software to a different
computer.

(iii) In the event of a failure of Licensee’s computer upon which the


Licensed Software is installed and activated, Licensee must reinstall the
Licensed Software from the source provided by Cummins. Once
Cummins is notified that reinstallation is complete, a registration code
shall be sent to Cummins from Licensee’s computer and, upon validation
by Cummins, a new password for re-activating the Licensed Software
shall be sent to Licensee by Cummins.

(iv) For Licensees of the PRO functionality level of the Licensed Software,
a separate and additional password must be purchased to allow access to
and use of the calibration related features of the PRO functionality level of
the Licensed Software. When purchased, such password shall be based
on the PCID provided to Cummins by Licensee’s computer and, upon
validation and registration of the PCID by Cummins, a separate password
for activating the calibration related features of the PRO functionality level
of the Licensed Software will be sent to Licensee by Cummins.

(v) Subject to additional terms, conditions or fees as appropriate, at the


sole discretion of Cummins Licensee of the BASIC, LITE,RSGR, PRO,
and INDUSTRIAL functionality levels of the Licensed Software may

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change to a different functionality level of the Licensed Software, provided
that such Licensee’s previous registration/validation of the Licensed
Software is cancelled and a new installation and registration of the
functionality level of the Licensed Software to which Licensee is changing
is completed.

(vi) Licensee hereby agrees to provide the Licensee’s name, point of


contact, company address, and telephone number along with the serial
number of the Licensed Software to Cummins for purposes of recording
such information in a Software User Registration Database..Cummins
hereby notifies Licensee, and Licensee acknowledges that any change to
the control system, firmware, software or calibrations of an engine with the
Licensed Software results in the creation of a record that uniquely
identifies the Licensed Software utilized to may such change. Further,
registration of the Licensed Software with Cummins allows identification
and traceability from audits that may be utilized to determine, for example,
that unauthorized adjustments, maintenance, or repair of engines using
the Licensed Software are being performed contrary to the purposes of
this Agreement. The Licensee hereby agrees to promptly notify Cummins
in writing should it become aware of any such unauthorized changes or
use of the Licensed Software.

f. Licensee agrees that Cummins retains exclusive ownership to all computer data
generated with the Licensed Software, and retains exclusive ownership of all
intellectual property in the Licensed Software, including but not limited to all
copyrights, copyrightable works, patents, patentable inventions, proprietary
information, trade secrets, trademarks, and service marks in the Licensed
Software. Licensee also agrees that all techniques, algorithms, and processes
contained in the Licensed Software or any modification, derivative, improvement,
or extraction thereof constitute intellectual property of Cummins and will be
safeguarded by Licensee, but in no event shall Licensee exercise less than due
diligence and care in accordance with the laws of the country of purchase and
International Law, whichever operates to best protect the interests of Cummins.
Except as provided herein, Licensee shall not copy, reproduce, replicate, re-
manufacture, or in any way duplicate all or any part of the Licensed Software
WHETHER MODIFIED OR TRANSLATED INTO ANOTHER LANGUAGE OR
NOT, or in any documentation or in any other material provided by Cummins in
association with the Licensed Software except as specified in this Agreement and
in accordance with the terms and conditions of this Agreement. Licensee agrees
not to reverse engineer, decompile, translate, alter, or otherwise tamper with the
Licensed Software and further agrees not to create any derivative works based
on the Licensed Software. Licensee agrees that unauthorized distributing,
copying, duplication, derivation, or other reproduction of ALL OR ANY PART OR
TRANSLATED PART of the Licensed Software provided by Cummins or the
failure to protect the Licensed Software from the same shall materially damage
Cummins. Licensee agrees that in the event Licensee breaches this Agreement,

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Licensee will be liable for damages as may be determined by a court of
competent jurisdiction.

3. Markings

Licensee shall use its best efforts to preserve all copyright, trademark, patent,
proprietary information, ownership, or other notices, legends or markings on the
Licensed Software as originally provided by Cummins. All such notices, legends, or
markings shall be clearly displayed on any backup or archival copy of the Licensed
Software. In the event the Licensed Software contains any electronic or digital
watermark, or any other message embedded therein, Licensee shall not modify or
remove such message.

4. Materials

The INSITE™ Installation Media, Security Key or Passwords, User Manual and System
Administrator’s Guide constitutes the entire product referred to, herein, as the Licensed
Software unless otherwise agreed to by the parties. The Licensed Software Materials
will be provided to the Licensee on successful completion of the Training Package.
Licensee should refer to its local Cummins distributor for details of the Training
available.

5. Licensee Expenses

Costs and expenses incurred by Licensee relating to any use of the Licensed Software,
or any other costs not specifically agreed upon by the parties in writing, shall be the
responsibility of Licensee.

6. Payment

The Sales Price does not include any federal, state, local, value-added, or other govern-
mental taxes, excise taxes, or other tariffs which may be imposed on the sale,
transportation, production, storage, or export of the Licensed Software. Any and all
such taxes and costs shall be paid by Licensee without any liability of Cummins for the
same to the extent allowed by law. For Licensees of the BASIC functionality level of the
Licensed Software, a one time payment is required for activating the Licensed Software
and maintaining activation of the same. For Licensees of the LITE, RSGR, INDUSTRIAL
and PRO functionality levels of the Licensed Software, a subscription must be
purchased and renewed on an annual basis in order to initially activate the Licensed
Software and then maintain activation of the Licensed Software upon the expiration of
each annual subscription.

7. Upgrades of Licensed Software

Cummins may, in its sole discretion, develop a new version of the Licensed Software
from time-to-time. For those Licensees of the LITE, RSGR, INDUSTRIAL and PRO
functionality levels of the Licensed Software who: (i) have valid and current annual
subscriptions in place at the time Cummins releases such new version(s) and (ii) desire

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to utilize such new version(s), Cummins shall make such new version available to
applicable Licensees in good standing, provided that it replace any previously installed
version of the Licensed Software. For those Licensees of the BASIC functionality level
of the Licensed Software, Cummins shall not provide any new version(s) of the
Licensed Software. Further, in the event a Licensee of the BASIC functionality level of
the Licensed Software upgrades to a newer version of the Licensed Software relative to
the version originally installed on such Licensee’s computer, then Cummins shall have
no obligation to provide such Licensee with a new password for activating the Licensed
Software and/or to provide support to such Licensee. However, new versions of the
Licensed Software shall be available to Licensees of the BASIC functionality level of the
Licensed Software upon cancellation of the previously installed version of the Licensed
Software and payment of an additional fee.

8. Updates and Maintenance of Licensed Software

a. Licensee acknowledges that Cummins may, at its option and at no cost to the
Licensee, provide updates to the Licensed Software. Any such updates shall be
provided electronically free of charge and may be automatically implemented into
the Licensed Software without soliciting permission from Licensee, and the
Licensee hereby acknowledges and accepts any such updates without objection
thereto. For those Licensees not having internet connectivity, Cummins shall
make updates available on tangible media for the cost of shipping and handling,
and upon receipt of payment for the same, shall provide the tangible media with
the updates to such Licensees. In the event any Licensee fails to implement any
updates released by Cummins into the Licensed Software, then Cummins at its
option shall no longer provide support to such Licensees.

b. Calibration updates shall be released on a monthly basis by Cummins to those


Licensees of the PRO functionality level of the Licensed Software who have
activated the calibration related features of the Licensed Software and pay for
receipt of the same.

c. Cummins agrees to make available reasonable Help Desk support to valid


current Licensees for the current version and the latest prior version of the
Licensed Software.

d. In the event of an error or defect in the Licensed Software any update or upgrade
thereto, Cummins agrees to repair or remedy such errors or defects which
Cummins deems necessary. Licensee shall, promptly upon discovery thereof,
notify Cummins, in writing, of any errors or defects in the Licensed Software
and/or any update or upgrade thereto. Cummins shall use its best efforts to
remedy or repair such errors or defects, devoting reasonable resources to such
task in view of the particular business situation and customer need. Cummins will
ship software upgrades to the attention of the registered Licensee at the shipping
address entered in the registration system.

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9. Warranties

Cummins warrants that any tangible media (if any) carrying the Licensed Software is
provided to Licensee by Cummins shall be free from defects in material or workmanship
for a period of ninety (90) days from the date of delivery to Licensee. Cummins also
warrants that the Licensed Software shall be delivered free of any valid claim of
infringement of any copyright, trademark, trade secret or other proprietary right of any
third party.

10. Warranty Disclaimer

THE LICENSED SOFTWARE AND ANY AND ALL UPDATES AND UPGRADES
THERETO ARE LICENSED “AS IS” WITH THE EXCEPTION OF THE WARRANTIES
SPECIFICALLY PROVIDED HEREIN. CUMMINS DOES NOT CLAIM AND DOES NOT
WARRANT THAT THE LICENSED SOFTWARE WILL RUN ERROR FREE. WITH THE
EXCEPTION OF THE WARRANTIES PROVIDED HEREIN, CUMMINS DISCLAIMS
ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING THE LICENSED
SOFTWARE, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR
PURPOSE, ITS NONINFRINGEMENT OF ANY PARTY'S INTELLECTUAL PROPERTY
RIGHTS, AND CUMMINS WILL NOT OTHERWISE BE LIABLE FOR INDIRECT, INCI-
DENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM LICENSEE’S USE OF
THE LICENSED SOFTWARE OR FOR ANY ERROR OR DEFECT IN THE LICENSED
SOFTWARE. IN NO EVENT SHALL CUMMINS’ LIABILITY TO LICENSEE EXCEED
THE TOTAL AMOUNT OF PAYMENTS RECEIVED FROM LICENSEE AND
ACCEPTED BY CUMMINS IN CONSIDERATION FOR THIS LICENSE.

11. Government Licensee

If Licensee is acquiring the Licensed Software as, or on behalf of, a unit of the United
States Government, the following provisions shall be applicable:

The Government acknowledges and agrees that the Licensed Software and
documentation relating thereto were developed at private expense and no part of the
Licensed Software or documentation relating thereto is in the public domain.

The Government acknowledges Cummins Inc. representation that the Licensed


Software is “Restricted Computer Software” as that term is defined in Clause 52.227-19
of the Department of Federal Acquisition Regulation Supplement (DFARS). The
Government agrees that:

(i) if the Licensed Software is supplied to the Department of Defense (DoD),


the Licensed Software is classified as “Commercial Computer Software”
and the Government is acquiring only “restricted rights” in the Licensed
Software and documentation relating thereto as that term is defined in
Clause 252.227-7013(c)(1) of the DFARS, and

(ii) if the Licensed Software is supplied to any unit or agency of the United
States Government other than the Department of Defense, the

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Government’s rights in the Licensed Software and documentation relating
thereto will be defined in Clause 52.227-19(c)(2) of the Federal Acquisition
Regulation (FAR).

12. Restricted Rights Legend

Use, duplication, or disclosure by the Government is subject to restrictions set forth in


subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at
DFARS 252.227-7013.

13. Confidentiality

a. Licensee hereby acknowledges that the Licensed Software and any upgrades or
updates thereto contain confidential proprietary information. Consistent with the
purpose of this Agreement, Licensee agrees to use its best efforts not to release,
disclose or otherwise permit unauthorized access to such confidential
information.

b. Cummins and Licensee agree to clearly mark written materials as “confidential,”


proprietary or the like if they are to be treated as confidential. Verbal
communications that are confidential in nature will be identified as such before,
during, or immediately after the communication.

c. Licensee will use its best efforts to ensure that all individuals who are provided
access to the Licensed Software under this Agreement will observe and perform
this nondisclosure covenant.

14. Termination of Agreement

a. Cummins may terminate this agreement for cause, such cause including, but not
limited to, adjustments, maintenance, programming, or repair, of Cummins
engines when such activities are not authorized by the owner of such engines.

b. In the event of termination of this Agreement, all rights granted by this Agreement
shall revert to Cummins. Upon termination of this Agreement, Licensee will
deliver to Cummins all material furnished by Cummins pertaining to the Licensed
Software and will also warrant that all copies thereof have been returned to
Cummins or destroyed.

c. In the event of termination of this Agreement, Licensee and Cummins shall


remain obligated with respect to the provisions of this Agreement relating to
confidentiality of information.

15. Entire Agreement

Licensee and Cummins agree that this Agreement constitutes the complete agreement
and understanding between the parties relating to Licensed Software and updates
thereto. This Agreement supersedes all prior agreements, understandings, and

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negotiations whether written or verbal with respect to the subject matter hereof. This
Agreement can only be modified by a written agreement signed by both parties.

16. Notices

Any questions concerning this Agreement, any inquiries related to the Licensed
Software, and any notices to Cummins pursuant to this Agreement should be directed to
Cummins Electronic Tools and Services Help Desk, MC 41317, Cummins Service
Products, 1460 National Road, Columbus, IN 47201, 812 377-8136. Notices to
Licensee shall be sent using the information provided and entered in the Software User
Registry. Either party may direct that notices be sent to a different person and/or
address by so requesting in writing to the other party.

17. Export Regulations

Licensee understands that the Export Administration Regulations of the Department of


Commerce of the United States may prohibit the export of the Licensed Software to
certain countries and agrees to conform to those regulations. Licensee also agrees to
conform to these regulations. Licensee shall indemnify Cummins against any loss
related to Licensee’s failure to conform to those regulations.

18. Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the
State of Indiana of the United States of America without regard to any conflicts of laws
or other provisions that would result in the application of the laws of another state or
country.

19. Attorneys’ Fees

In the event of any legal action or other proceeding that is brought about to enforce this
Agreement, Cummins shall be entitled to recover reasonable attorneys’ fees as well as
other costs incurred in that action or proceeding in addition to any compensation to
which it may be entitled.

20. Agreement Successors and Assigns

The terms and conditions of this Agreement shall inure to the benefit of and be
enforceable by Cummins and the successors and assigns of Cummins’ interest in this
Agreement and/or Cummins’ ownership of the Licensed Software.

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Links To Other Web Sites

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