1. TRIAL EVALUATION LICENSE TERMS AND CONDITIONS

The provisions of this Subsection 1 shall apply to the Software downloaded for temporary and/or trial use.

1.1 License.

Subject to the terms and conditions of this Agreement, the Software is licensed, not sold to Licensee by Softerra for an evaluation period of thirty (30) days from the download date ("Evaluation Period").

(i) Licensee may use the Software for its own internal evaluation and for no other purpose.

(ii) There is no fee for Licensee's use of the Software in accordance with this Agreement during the Evaluation Period; however, Licensee is responsible for any fees which may be associated with usage beyond the scope permitted herein.

(iii) Upon completion of a successful evaluation of the Software, Licensee is expected to apply for a commercial license of the Software.

Licensee understands that the Software may contain code which automatically disables the Software at the end of the Evaluation Period, or Softerra may otherwise disable or delete the Software at the end of the Evaluation Period.

1.2 "AS-IS" Warranty.

LICENSEE AND SOFTERRA AGREE THAT THE SOFTWARE USED DURING THE EVALUATION PERIOD IS PROVIDED "AS IS", AND THAT SOFTERRA MAKES NO WARRANTY AS TO THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

1.3. Applicability of Agreement.

The provisions of Subsection 2, below, do not apply to Software downloaded for trial or temporary use. All other provisions of this Agreement apply to the trial or temporary use.

2. COMMERCIAL LICENSE TERMS AND CONDITIONS

The provisions of this Subsection 2 shall apply to all licenses of the Software except for trial evaluation licenses under Subsection 1.

2.1 License.

Subject to the terms and conditions of this Agreement, and in consideration for Licensee's payment of the applicable license fees, Softerra hereby grants to Licensee, and Licensee accepts from Softerra, a perpetual, non-exclusive, non-transferable and non-sublicensable right to use the Software, solely for Licensee's internal business purposes. This license consists of the right for Licensee to install, use, access, run, or otherwise interact with the Software within the scope of license granted and in accordance with the related Documentation. "Documentation" means materials describing the operating of the Software and provided by Softerra. Licensee may also make a reasonable number of additional copies of the Software solely for non-productive archival purposes, so long as neither the original and a copy nor two copies of the Software under the same license are in use at the same time, and so long as each copy contains all titles, trademarks, and copyrights and restricted rights notices as in the original. Licensee may make the Software installed on a terminal server, provided that the number of terminal clients (computers connected to the server through terminal services) concurrently accessing the Software is restricted by the number of users granted by the License purchased. Except as explicitly set forth above, Licensee may not reproduce the Software or any portion thereof.

2.2 Updates and Upgrades.

"Update" is an enhancement to the existing Software version that includes improvements and bug fixes based on the community feedback. Updates are provided free of charge.

"Upgrade" is a major new functional release that requires an upgrade fee. Upgrades do not include new or different applications, platforms or editions which are not extensions to or replacements for the Software, but which may use some or all of the code from the Software.

Any Update or Upgrade installed by Licensee shall be governed as Software under the terms and conditions of this Agreement. Licensee is permitted to install and use in production environment only one version (either the original version or the Upgrade) of the Software at any one time. Licensee is not allowed to transfer to or permit any third party to use the version that Licensee has not installed.

2.3 Use by Third Parties.

Licensee may allow its service vendors and contractors ("Third Party") to access and use the Software and Documentation provided to Licensee hereunder solely for purposes of providing services to Licensee, provided that Licensee ensures that the Third Party's access to or use of the Software and Documentation is subject to the restrictions and limitations contained in this Agreement. Except as explicitly provided above, Licensee shall not permit any person other than Licensee's employees to access or use the Software.

2.4 Limited Warranty.

Softerra warrants that for a period of one year (365 calendar days) from the date of the initial delivery of the Software ("Warranty Period"), the operation of the Software, as provided by Softerra, will substantially conform to the Documentation applicable to the Software.

THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF, AND SOFTERRA HEREBY DISCLAIMS, ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

Licensee must report in writing any breach of the foregoing warranties to Softerra during the Warranty Period, and Softerra's sole obligation, for any such breach of warranty shall be for Softerra to correct or provide a workaround for reproducible errors that cause a breach of the warranty within a reasonable time considering the severity of the error and its effect on Licensee, or, at Softerra's option, refund the license fees paid for the nonconforming Software upon return of such Software to Softerra and termination of the related license hereunder.

SOFTERRA SHALL NOT BE RESPONSIBLE FOR FUNCTIONING LIMITATIONS OR DEFECTS OF THE SOFTWARE, IF THE SAME HAVE BEEN CAUSED, IN WHOLE OR IN PART, BY ANY UNAUTHORIZED BEHAVIOR CARRIED OUT OR PERMITTED BY LICENSEE OR ITS EMPLOYEES, ANY USE OF THE SOFTWARE WHICH IS INCONSISTENT WITH THE RELEVANT DOCUMENTATION OR DERIVING FROM THE OPERATING ENVIRONMENT OR FROM SOFTWARE OR ANY OTHER PRODUCTS WHICH ARE NOT SUPPLIED BY SOFTERRA.

Licensee acknowledges that it has no right whatsoever to modify the Software or any portion thereof in any manner. Licensee shall not reverse, engineer, decompile, disassemble, modify, adapt, rent, lease, loan or create derivative works based upon the Software or any part thereof. Licensee may not use the Software as a managed service provider, application service provider, in any commercial time share arrangement, or in any other activity intended to directly produce revenue or benefit third parties. Licensee may not resell the Software licensed hereunder to third parties. Licensee may not post or otherwise make the Software available on the World Wide Web. Licensee shall not assign the Software to a third party for use in managing Licensee's environment without the prior written consent of Softerra. The Software and Documentation are subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulation in other countries. Licensee will not re-export the Software or Documentation to any country outside of the country in which the Software is initially delivered, without the prior written consent of Softerra. Licensee shall strictly comply with all applicable export control laws and shall obtain all necessary export control licenses to export or re-export the Software or Documentation. Licensee will indemnify, defend and hold harmless Softerra and its successors, affiliates, directors, officers, employees and agents from and against any liabilities, damages, expenses, fines or penalties incurred as a result of the export or re-export by Licensee of the Software or Documentation in violation of this Section.

THE LIMITED WARRANTIES AS DESCRIBED IN SECTION I-1.2 AND SECTION I-2.4 OF THIS AGREEMENT ARE THE ONLY WARRANTIES PROVIDED BY SOFTERRA AND ITS LICENSORS, WHO EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE SOFTWARE AND ACCOMPANYING WRITTEN MATERIALS.

1. Consequential and Similar Damages.

OTHER THAN THE REMEDIES SPECIFIED ABOVE FOR WARRANTY BREACH, IN NO EVENT SHALL SOFTERRA OR ITS LICENSORS BE LIABLE FOR ANY OTHER DAMAGES WHATSOEVER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS, OR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF SOFTERRA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE IS REQUIRED TO TAKE REASONABLE MEASURES TO AVOID DAMAGES, ESPECIALLY TO MAKE BACKUP COPIES OF THE SOFTWARE AND ANY VALUABLE DATA STORED ON LICENSEE'S SYSTEM. LICENSEE MAY HAVE ADDITIONAL RIGHTS BY LAW WHICH VARY FROM JURISDICTION TO JURISDICTION. SOFTERRA EXPLICITLY DOES NOT INTEND TO LIMIT LICENSEE'S LIABILITY RIGHTS TO AN EXTENT NOT PERMITTED BY LAW.

2. Limitation of Monetary Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL TRUMETHODS' AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES REQUIRED TO BE PAID BY LICENSEE FOR THE LICENSE OF THE SOFTWARE AND THE MAINTENANCE FEES PAID BY LINCENSEE FOR THE CURRENT MAINTENANCE PERIOD.

The Software is owned by Softerra or its licensors (if any) and is protected by copyright laws, international treaty provisions, and other national laws. Licensee acknowledges that Licensee has no right, title or interest in the Software, except as set forth in Section I. Nothing in this Agreement entitles Licensee to receive source code for any part of the Software.

Licensee understands and agrees that:

(i) The Software is licensed, and not sold.

(ii) Softerra owns the copyright, and other intellectual property rights in the Software.

(iii) Softerra reserves any and all rights, implied or otherwise, which are not expressly granted to Licensee hereunder.

(iv) This Agreement does not grant Licensee any rights to Softerra's trademarks or service marks.

Softerra shall have the right to take direct action in case of any breach of its rights in the Software made by or permitted by Licensee and shall be entitled to enforce such rights by choosing the most appropriate manners and means. Except as expressly set forth in this Agreement, all rights and remedies of Softerra, whether provided in this Agreement, pursuant to copyright law or pursuant to other laws, are cumulative, and the exercise of any right or remedy shall not be deemed to prevent the exercise of any other right or remedy.

"Confidential Information" means the Agreement, Software, trade secrets, know-how and any proprietary tools, proprietary knowledge or proprietary methodologies disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") and not generally available to the public, which the Receiving Party may gain access to or knowledge of as a result of this Agreement. The Receiving Party shall observe complete confidentiality with respect to the Confidential Information and shall use commercially reasonable efforts and take all reasonable steps to protect the Confidential Information from any use, reproduction, publication, disclosure, or distribution except as specifically authorized by this Agreement. The receiving party shall not use the Confidential Information for the benefit of any third party, or for its own benefit except in connection with the transactions and relationships contemplated by this agreement. The Receiving Party shall promptly notify the Disclosing Party of any known unauthorized use or disclosure of the Confidential Information and will cooperate with the Disclosing Party in any litigation brought by the Disclosing Party against third parties to protect its proprietary rights.

The Agreement is concluded for an undefined period of time. The Agreement may be terminated (a) by mutual agreement of Softerra and Licensee, (b) by Licensee, upon thirty (30) days prior written notice to Softerra, or (c) by Softerra, if Licensee breaches this Agreement and fails to cure such breach to Softerra's reasonable satisfaction within thirty (30) days following receipt of Softerra's notice thereof. Upon any termination of this Agreement, Licensee shall immediately cease use of the Software and certify in writing to Softerra within thirty (30) days after termination that Licensee has permanently deleted (in a manner that is unrecoverable) or returned to Softerra the Software and all copies thereof. Termination of this Agreement shall not relieve Licensee of its obligation to pay all fees that have accrued or have become payable by Licensee hereunder, and Licensee shall not be entitled to a refund of any fees for any reason.

To ensure compliance with the terms of this Agreement, Softerra or its designated representative shall have the right during regular business hours, exercisable upon reasonable notice, to conduct an inspection and audit of Licensee's records of Software use, and to obtain such other information as necessary to confirm the information contained in the records of use (collectively, a "verification"). All such information obtained by Softerra shall be maintained in strict confidence and shall not be used for any purpose other than to evaluate Licensee's compliance with this Agreement. Licensee will use reasonable efforts to facilitate Softerra's exercise of its verification rights. If Licensee's use of the Product exceeds that authorized herein, Licensee will promptly report such excess use to Softerra. If any verification reveals unauthorized use by Licensee, Licensee shall immediately pay all fees that would have been due if such use had been authorized, plus interest at ten percent (10%) per annum, or the highest amount permitted by applicable law, whichever is lower on all amounts payable by Licensee, for the cost of such verification and other damages. If Licensee reports the unauthorized use voluntarily, the 10% interest will not apply.

Licensee will keep the Software in safe custody and will take appropriate steps to ensure that all obligations stipulated in this Agreement are adhered to. Licensee will follow all relevant legal provisions, especially the laws on intellectual property and copyright.

The Software is provided with Restricted Rights. Use, duplication, or disclosure by a U.S. Government Licensee is subject to restrictions as set forth in the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or the Commercial Computer Software Restricted Rights at FAR 52.227-19, as applicable. The Software is a "commercial item" and/or "commercial computer software" and the documentation is "computer software documentation" and/or "commercial computer software documentation" as defined under U.S. law in FAR section 2.101, DFARS section 252.227-7014(a)(1) and DFARS section 252.227-7014(a)(5), or otherwise. Consistent with DFARS section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Software by the U.S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted in this Agreement. Licensee will ensure that each copy of the Software used or possessed by or for the U.S. Government is labeled to reflect the foregoing. The Manufacturer is Softerra, Inc.

1. Embedded Software.

Licensee acknowledges that the Software licensed hereunder may contain third party components that are licensed under this Agreement. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY IN THIS AGREEMENT, SUCH EMBEDDED SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT ARE DISCLAIMED. IN NO EVENT SHALL THE OWNERS OF THE EMBEDDED SOFTWARE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

2. Other Third Party Software.

The Software may operate in combination with software Licensee licenses from third parties. Softerra has no responsibility for the operation of such third party software. Changes to third party software may change how the Software operates in combination. The following is expressly excluded from the scope of the Agreement: all third party software, such as, without limitation, database software, operating systems, enterprise software, etc.

Licensee may not assign or transfer its rights or obligations under this Agreement without prior written approval by Softerra, and any purported assignment or transfer without Softerra's consent shall be null and void.

This Agreement will be governed in all respects by the substantive laws of the State of Delaware, United States of America, exclusive of its conflicts of laws rules. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement and to the extent Licensee may be a resident of a state that has adopted the Uniform Computer Information Transactions Act (UCITA), the parties expressly agree that the UCITA doesn't apply to the transaction covered by this Agreement. If any term or provision of this Agreement shall be declared invalid in arbitration or by a court of competent jurisdiction, such invalidity shall be limited solely to the specific term or provision invalidated, such provision shall be modified to the extent necessary to be valid and accomplish the intent of the parties, and the remainder of this Agreement shall remain in full force and effect, according to its terms. Any dispute between the parties hereto arising out of or in connection with this Agreement (including any question regarding its validity or termination) shall be submitted exclusively to the competent state or federal courts located in Wilmington, Delaware, USA. Licensee hereby irrevocably waives any objection to the jurisdiction, process and venue of any court and to the effectiveness and enforceability of any order or judgment (including a default judgment) of any such court in relation to this Agreement, to the maximum extent permitted by the law of any jurisdiction, the laws of which might be claimed to be applicable regarding the effectiveness, enforcement or execution of such order or judgment. Any and all such proceedings shall be conducted in the English language.

This Agreement expresses the full, complete and exclusive understanding of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous proposals, representations, agreements and understandings, whether written or oral. The terms and conditions of any individual purchase order submitted by Licensee to Softerra that are in contravention with or addition to the terms and conditions of this Agreement are hereby disclaimed and shall be null and void. This Agreement may not be modified or amended except by written instrument duly executed by an authorized representative of both parties.

Copyright © Softerra, Inc. and its licensors. All rights reserved.