END USER SOFTWARE LICENSE AGREEMENT CAREFULLY READ THIS AGREEMENT BEFORE YOU INSTALL THIS SOFTWARE. BY INSTALLING AND USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT INSTALL OR USE THE SOFTWARE. This software is owned by Efficient Networks, Inc., 983 University Ave., Los Gatos, California ("ENI"). Subject to ENI or your Internet service provider ("Service Provider") having provided this software to you, you may use this software, including any documentation, error corrections and updates for the software (collectively referred to hereafter as the "Software") under the following terms and conditions. 1. Limited Rights to Use the Software ENI grants to you a non-exclusive, non-transferable license to: (a) install and use the Software on a single personal computer in machine- readable form for the sole purpose of accessing the services provided by your Service Provider; (b) install the Software on another personal computer if necessitated by a failure of the first personal computer, so long as the Software is not used on more than a single personal computer; and (c) maintain one backup copy of the Software for archival and recovery purposes. 2. No Other Use of Software Permitted The foregoing license grants sets forth your entire rights with respect to the Software. The Software contains copyrighted material, trade secrets and proprietary information owned by ENI or its suppliers. Therefore, you may not de-compile, reverse engineer, disassemble, modify or reduce the Software to humanly readable form. You may not rent, lease, loan, sub- license or distribute copies of the Software. You may not create derivative software based upon the Software. You may not electronically transfer the Software over a network or telephone circuit other than to use the Software for the purposes for which it is intended. You may use the Software only on computer systems owned or leased by you. You may not remove or alter any trademark, trade name, copyright, or other proprietary notices, legends, symbols or labels appearing on or in copies of the Software delivered to you hereunder. 3. Term and Termination of This Agreement and Your Rights If this Software has been provided to you for evaluation purposes, this agreement and your rights to use the software automatically terminate thirty (30) days after you receive the Software. Otherwise, this agreement and your rights under it will remain in effect indefinitely unless terminated as follows: This License will terminate automatically, without notice, if you fail to comply with any provision of this Agreement. In the event that this License requires a payment to be made by you to your Service Provider, this License will terminate upon notice from your Service Provider if payment for the Software has not been made. Upon termination of this agreement for either of the foregoing reasons, you must stop using the Software, erase or destroy all copies of the Software, and destroy all printed information provided with or copied from the Software. 4. No Warranty for Software THE SOFTWARE IS PROVIDED "AS IS." ENI EXPRESSLY DISCLAIMS AND NEGATES ALL WARRANTIES FOR THE SOFTWARE, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, AND ENI SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY OR OTHER VIOLATION OF THIRD PARTY RIGHTS. ENI DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. 5. Title to Software You acknowledge and agree that all right, title and interest in and to the Software, including all intellectual property rights therein, shall remain the property of ENI or its suppliers, subject only to the limited license to use Software granted to you in this agreement. This agreement is not a sale and does not transfer to you any title or ownership in or to the Software or any patent, copyright, trade secret, trade name, trademark or other proprietary or intellectual property rights related thereto. 6. Limitation of ENI Liability ENI IS NOT BE LIABLE FOR ANY DAMAGES, AND IN PARTICULAR IS NOT LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR OTHER SIMILAR DAMAGES, IN CONNECTION WITH OR ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF ENI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUCH DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOSS OF PROFITS, REVENUE OR BUSINESS INFORMATION. IN NO EVENT WILL THE AGGREGATE LIABILITY OF ENI, ITS SUPPLIERS OR YOUR SERVICE PROVIDER UNDER THIS AGREEMENT EXCEED THE GREATER OF THE FEES PAID BY YOU FOR THIS SOFTWARE OR TWENTY FIVE DOLLARS. 8. Additional Terms and Conditions This agreement is the entire understanding between the parties regarding the subject matter hereof, and it supersedes and terminates any other representations, promises, communications, agreements or understandings between the parties with regard to the subject matter hereof. If a court of competent jurisdiction finds any provision of this agreement unenforceable, all other provisions shall remain in full force and effect and the unenforceable provision will be replaced with an enforceable provision that most nearly achieves the intent and economic effect of the unenforceable provision. This agreement may only be amended by a written document signed by the parties. This agreement is specific to you, and you may not assign, transfer or delegate this agreement or any right hereunder without the prior written consent of ENI. Any assignment or transfer in contravention of this restriction shall be null and void. This Agreement will be binding upon and will inure to the benefit of the parties hereto and their heirs, legal representatives, successors and permitted assigns. A failure or delay in exercising any right hereunder will not be considered a waiver thereof unless expressly waived in writing and signed by the waiving party. No single waiver will be considered a continuing or subsequent waiver. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party. You agree that in the event of a breach, or alleged breach, of Sections 1 or 2, ENI will be entitled to seek and obtain injunctive relief and any other applicable equitable relief, in addition to any and all other remedies available to ENI under this agreement and at law. This agreement shall be governed by and construed under the laws of the State of California and the federal laws of the United States applicable therein, except for that body of law dealing with conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods will not apply. 9. Acceptance BY CLICKING ON THE "YES" BUTTON BELOW, YOU ARE INDICATING THAT YOU ARE OF LEGAL AGE AND HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THE ABOVE TERMS AND CONDITIONS. rcf1932.doc 12-OCT-00