PREtest Consult : PROTECT and DOCUMENT your DECISIONS

IMPORTANT – PLEASE READ CAREFULLY BEFORE PROCEEDING

BREATHQUANT MEDICAL SYSTEMS AGREEMENT FOR USE OF ‘PREtestConsultACS’ SOFTWARE for PalmOS

READ THIS AGREEMENT CAREFULLY BEFORE YOU CLICK ON THE "I ACCEPT" BUTTON ABOVE. BY CLICKING ON THE "I ACCEPT" BUTTON, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, CLICK ON THE "I DECLINE" BUTTON ABOVE.

THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND BREATHQUANT MEDICAL SYSTEMS, INC.

THIS AGREEMENT CONTAINS THE ENTIRE AGREEMENT BETWEEN YOU AND BREATHQUANT MEDICAL SYSTEMS, INC. WITH RESPECT TO YOUR TRIAL USE OF THE BREATHQUANT MEDICAL SYSTEMS, INC. SOFTWARE PRODUCT.

1. LICENSE

Subject to the terms and conditions of this Agreement, you are hereby granted a limited, nonexclusive, nontransferable license (the "License") (1) to install one copy of the PREtestConsultACS software (the “Software”) on one personal digital assistant (PDA) for which the Software was designed and (2) to use the Software and any updates or upgrades to the Software provided by BreathQuant Medical Systems Inc and any associated user manuals and documentation delivered by BreathQuant Medical Systems Inc (collectively as to the Software, any updates or upgrades, and related documentation, the "Product") for the sole purpose of testing and evaluating the Product. This License shall continue for 25 trial uses of the software. This License does not permit you to use the Product for any purpose other than as expressly permitted by this Agreement.

After using the PREtestConsultACS software for the trial 25 uses or upon the request of BreathQuant Medical Systems, whichever is earlier, you will promptly remove the Product, including all coding and other vestiges of the Product, from your computer systems, including your PDA, and make no further use whatsoever of the Product or of any Confidential Information (as defined below), except to the extent that may be permitted under any subsequent agreement between you and BreathQuant Medical Systems. Upon completion of the Evaluation period or upon the request of BreathQuant Medical Systems, you shall provide BreathQuant Medical Systems with information regarding the results of the trial, in a format and level of detail reasonably requested by BreathQuant Medical Systems.

2. OWNERSHIP OF THE PRODUCT

You acknowledge that the Product, and all copyrights, trademarks, and other intellectual property rights in the Product, are owned by BreathQuant Medical Systems; that the Product is protected under U.S. copyright law, which provides substantial damages for unauthorized copying, adaptation, or distribution of a work of authorship; and that you acquire no ownership of the Product from this Agreement and no right to use the Product beyond the Evaluation Period. You agree to not remove from, and to reproduce on any permitted copies of, the Product all titles, trademarks, and copyright and other proprietary or restrictive legends or notices. YOU MAY NOT SUBLICENSE, ASSIGN OR TRANSFER THIS LICENSE, OR USE, COPY, DISPLAY, MODIFY OR TRANSFER ALL OR ANY PART OF THE PRODUCT OR ANY PORTON OR COPY THEREOF, EXCEPT AS EXPRESSLY AUTHORIZED BY THIS AGREEMENT. You specifically agree not to decompile or reverse engineer the Product at any time during or after the Evaluation Period.

3. CONFIDENTIAL INFORMATION

You acknowledge that the Product (including the associated documentation) constitutes and contains valuable confidential and trade secret information of BreathQuant Medical Systems. You acknowledge that the unauthorized reproduction or distribution of the Product could cause serious and irreparable harm to BreathQuant Medical Systems and, as an essential term and condition of being granted this License, you will:

(a) not use, copy, reproduce, or distribute the Product or any portions thereof, except as reasonably necessary for the evaluation contemplated by this Agreement or reasonably required for backup purposes;

(b) take all reasonable precautions to prevent unauthorized or improper use of the Product, including the storage of the media containing copies of the Product in a manner so as to reasonably preclude unauthorized access thereto; and

(c) not allow copies of the Product or any portion thereof to leave your premises except as installed on your PDA (thus, without limitation, you will not transmit the Product or any portions thereof over the Internet nor electronically transfer from one PDA to another device except for legitimate backup purposes).

If you are a company, corporation, or other legal entity you agree to take all reasonable steps to see that your employees, officers, and agents act in accordance with the confidentiality provisions of this Agreement.

Because unauthorized transfer of the Product will diminish substantially the value of BreathQuant Medical Systems 's trade secrets and proprietary properties that are subject to the License, IF YOU BREACH YOUR OBLIGATIONS UNDER THIS SECTION 3 OR UNDER SECTION 2, BREATHQUANT MEDICAL SYSTEMS, INC. SHALL BE ENTITLED TO REMEDIES WHICH MAY INCLUDE, WITHOUT LIMITATION, EQUITABLE RELIEF (INCLUDING ORDERS FOR SPECIFIC PERFORMANCE AND INJUNCTIONS),.

4. WARRANTY AND LIABILITY LIMITATIONS

You acknowledge that the Product may have errors and may produce unexpected results and agree that any use of the Product will be entirely at your own risk. You agree to backup data and take other appropriate measures to protect your programs and data. You agree not to allow any third party to use the Product and to indemnify and hold BreathQuant Medical Systems harmless from any damages or claims arising from use by any third party that received or obtained a copy of the Product, directly or indirectly, from you.

THE PRODUCT AND ANY SUPPORT FROM BREATHQUANT MEDICAL SYSTEMS, INC. ARE PROVIDED "AS IS" AND “AS AVAILABLE” WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED. BREATHQUANT MEDICAL SYSTEMS, INC. SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PRODUCT IS BEING PROVIDED SOLELY FOR PURPOSES OF TESTING AND EVALUATION AND BREATHQUANT MEDICAL SYSTEMS, INC. DOES NOT WARRANT THAT THE PRODUCT WILL BE ERROR FREE OR WILL OPERATE PURSUANT TO BREATHQUANT MEDICAL SYSTEMS, INC. SPECIFICATIONS AND DOCUMENTATION. IN NO EVENT WILL BREATHQUANT MEDICAL SYSTEMS, INC. BE LIABLE FOR ANY DAMAGES, REGARDLESS OF THE FORM OF ACTION, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS OR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER RESULTING FROM IMPAIRED OR LOST DATA, SOFTWARE OR COMPUTER FAILURE OR ANY OTHER CAUSE, EVEN IF PRETEST CONSULT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY OTHER CLAIM BY YOU OR FOR ANY THIRD PARTY CLAIM.

YOUR RIGHT TO USE THE PRODUCT IS CONDITIONED UPON AN ABSOLUTE AND UNEQUIVOCAL WAIVER BY YOU OF ANY CLAIM OF ANY LIABILITY AS TO BREATHQUANT MEDICAL SYSTEMS. IT IS EXPRESSLY UNDERSTOOD THAT YOUR USE OF THE PRODUCT IS ON THE BASIS OF “AS IS”, AND “AS AVAILABLE”, AND THAT BREATHQUANT MEDICAL SYSTEMS, INC. MAKES NO REPRESENTATIONS, EXPRESSED, ORAL OR IMPLIED, AS TO ANY WARRANTY OR CONDITIONS OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, QUALITY, SUITABILITY, AVAILABILITY, TIMELINESS, ACCURACY, OR COMPLETENESS. ALL OF THESE ARE HEREBY EXPRESSLY DISCLAIMED BY BREATHQUANT MEDICAL SYSTEMS TO THE FULLEST EXTENT PERMITTED BY LAW.

IT IS EXPRESSLY UNDERSTOOD THAT THE PRODUCT IS SECONDARY TO YOUR CLINICAL JUDGMENT, AND ANY INFORMATION, STATUS, AND/OR CONDITION OF THE PATIENT, NONE OF WHICH ARE KNOWN WITH ANY ACCURACY BY BREATHQUANT MEDICAL SYSTEMS. FURTHER, IT IS AGREED THAT UNDER ABSOLUTELY NO CIRCUMSTANCES SHALL OR WILL YOU OR ANY USER OF THE PRODUCT SUBSTITUTE THE PRODUCT OR ANY INFORMATION OBTAINED FROM YOUR USE OF THE PRODUCT FOR THE PRIORITY OF RECOGNITION OF CLINICAL JUDGMENT AND CLINICAL INFORMATION THAT IS AVAILABLE.

IT IS FURTHER UNDERSTOOD AND AGREED THAT BREATHQUANT MEDICAL SYSTEMS DISCLAIMS ALL LIABILITY, DIRECT OR INDIRECT, FOR ANY CLAIM RELATING THE PRODUCT, INCLUDING, WITHOUT LIMITATION, CLAIMS ARISING FROM PRODUCT LIABILITY, PERSONAL INJURY, DEATH, OR INFRINGEMENT OF ANY PROPRIETARY RIGHTS. IN NO EVENT SHALL

BREATHQUANT MEDICAL SYSTEMS BE RESPONSIBLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR ANY OTHER DAMAGES WHATSOEVER AND HOWSOEVER CAUSED, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE PRODUCT OR IN RELIANCE ON THE INFORMATION AVAILABLE ON THE BREATHQUANT MEDICAL SYSTEMS WEB SITE, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF USE, LOST DATA, LOST BUSINESS PROFITS, BUSINESS INTERRUPTION, PERSONAL INJURY, OR ANY OTHER PECUNIARY LOSS, WHETHER THE ACTION IS IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER TORTUOUS ACTION, WHETHER OR NOT BREATHQUANT MEDICAL SYSTEMS HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. THESE LIMITATIONS OF DAMAGES ARE AGREED ALLOCATIONS OF RISK, ARE REFLECTED IN THE ARRANGEMENT BETWEEN THE PARTIES PURSUANT TO THIS AGREEMENT, AND SHALL SURVIVE THE DETERMINATION OF ANY COURT OF COMPETENT JURISDICTION THAT ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

IT IS HEREBY EXPRESSLY UNDERSTOOD AND COMMUNICATED AS A CONDITION PRECEDENT TO THE USE OF ANY INFORMATION AND/OR MEDICAL DEVICE OR EQUIPMENT THAT THE USER OF THE SAME SHALL FULLY INDEMNIFY AND HOLD HARMLESS BREATHQUANT MEDICAL SYSTEMS FOR ANY COSTS OR EXPENSES OF ANY NATURE WHICH ARE DIRECTLY OR INDIRECTLY RELATED TO BREATHQUANT MEDICAL SYSTEMS’ ACTIONS TAKEN IN RESPONSE TO ANY CLAIMS MADE.

Some jurisdictions do not permit the disclaimer of warranties or the exclusion of consequential damages, so these disclaimers and limitations may not apply to you.

5. TEST INFORMATION

The contents and expression of all oral and written reports made by you to BreathQuant Medical Systems, together with any other materials, information, ideas, concepts, and know-how provided by you relating to the Product, shall become the property of BreathQuant Medical Systems and may be used by BreathQuant Medical Systems for any business purpose it may choose. Under no circumstances shall BreathQuant Medical Systems be liable for any payment to you for any such report or information.

6. LICENSES TO U.S. GOVERNMENT

This paragraph applies to all acquisitions of the Product by or for the federal government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the federal government (collectively, the "Government"). By clicking "I ACCEPT" above, you are agreeing on behalf of the Government that the Product and any documentation related thereto are respectively "commercial computer software" and "commercial computer software documentation" within the meaning of the acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement and any Master Agreement alone shall govern the Government's use of the Product, and shall supersede any conflicting contractual terms or conditions. If the license granted by this Agreement or any Master Agreement fails to meet the Government's needs or is inconsistent in any respect with Federal law, the Government must return the Product unused to BreathQuant Medical Systems.

7. GENERAL PROVISIONS

No agency, partnership, joint venture, or other joint relationship is created by this Agreement. BreathQuant Medical Systems may enter into the same or similar Agreements with others.

All "notices" under this Agreement shall be in writing and sent to you at the email address provided by you, to BreathQuant Medical Systems at the address set forth below, or to other then-current address specified by effective notice, via certified mail or other means that provides proof of delivery.

Notices to BreathQuant Medical Systems should be sent to the following address:

1. Landmail: BreathQuant Medical Systems, Inc.,

1723 Beverly Drive

Charlotte, North Carolina 28207

2. Email: support@pretestconsult.com

You acknowledge that BreathQuant Medical Systems, Inc. has made the Product available to you free of charge for evaluation purposes. You may not assign, sell, or otherwise transfer to any other party this Agreement, the License, or any material items furnished under this Agreement, without BreathQuant Medical Systems' prior written consent.

The failure of a party to exercise any right shall not be deemed a waiver of any further or future right.

This Agreement is the exclusive statement of the parties' agreement and supersedes all prior agreements, proposals and representations, written or oral, relating to its subject matter. No provision may be modified except in a writing signed by both parties. No provision of any purchase order or other instrument issued by you in connection with this Agreement that is in addition to or inconsistent with this Agreement shall bind BreathQuant Medical Systems.

The export of the Product from the United States and re-export from any other country is governed by the U.S. Department of Commerce under the export control laws and regulations of the United States and by any applicable law of such other country, and the Product shall not be exported or re-exported in violation of any such laws or regulations.

This Agreement shall be governed by the laws of the North Carolina USA, without regard to its principles of conflicts of laws, which shall be the exclusive jurisdiction for any disputes arising in relation to this Agreement; and Customer hereby expressly submits to the jurisdiction of North Carolina for this purpose. If any part of this Agreement is deemed invalid or unenforceable, the remainder shall be unaffected.

Please indicate that you understand and accept the terms and conditions of this Agreement by clicking the "I ACCEPT" button above.