---------------------------------------------------------------------- -------------------- -------------------- Tanuki Software, Ltd. Server Software License Agreement Version 1.0 IMPORTANT-READ CAREFULLY: This license agreement is a legal agreement between you and Tanuki Software, Ltd.("TSI"), which includes computer software, associated media, printed materials, and may include online or electronic documentation ( Software ). PLEASE READ THIS AGREEMENT CAREFULLY BEFORE YOU INSTALL, COPY, DOWNLOAD OR USE THE SOFTWARE ACCOMPANYING THIS PACKAGE. Section 1 - Grant of License Effective upon the payment of the license fees, TSI grants to You a non-exclusive, non-transferable, worldwide right and license to use, one or more instances of the Software Program and documentation, in executable code form only, on a single physical server or workstation. You may not, under any circumstances, distribute or resell the Software in any form, nor use the Software to construct any product to directly compete with the Software. Section 2 - Definitions "Software Program" shall mean the computer software and license file provided by TSI under this Agreement, including all new releases, corrections, enhancements and updates to such computer software, which TSI makes generally available and which You receive pursuant to Your subscription to TSI's Maintenance Services as described herein. Some specific features or platforms may not be enabled if they do not fall under the feature set(s) covered by the specific license fees paid. "Computer" shall mean the computer, server, workstation, or device on which the Software Program is Licensed to be used. "Host Id" shall mean an identification string which uniquely identifies an individual Computer. "License File" shall mean the text file provided by TSI containing information associating the License File to You, a Host Id, a list of enabled features, Term of the this Agreement, and a set of keys used to activate the Software Program. Section 3 - Scope Of Use The Software Program can only exist on the Computer identified by the Host Id mentioned in the License File provided by TSI. You are granted a license to use versions and updates of the Software Program released prior to the end of the Term of this Agreement on the Computer beyond the Term of this license Agreement. Access to specific features may be restricted depending on the features mentioned in the License File provided with this Agreement. Section 4 - Copyright and Trademark You acknowledge that all copyrights in the Software Program and the goodwill associated therewith are vested in and belong to TSI. Section 5 - Maintenance Services 5.1 Scope and Duration Maintenance Services are provided on an annual basis for certain TSI Software. The initial order for Maintenance Services shall be included in the initial fees paid for the license. After the first year of Maintenance Services and for the remainder of the Term, You will be required to renew your Maintenance Services for successive one (1) year periods at the rates for such Maintenance Services. Maintenance Services must be paid in full without lapse to be eligible. 5.2 Maintenance Obligations TSI will provide first line support of the Software Program to You for problems relating directly to the Software Program during the Term of this Agreement. Section 6 - Warranty and Limited Liability Software Warranty: TSI warrants that, for a period of ninety (90) days from the initial delivery of the software to You, the Software, if used by You in accordance with the Documentation, shall operate in material conformity with the Documentation for such Software. TSI does not warrant that the Software will meet all of Your requirements or that the use of the Software will be uninterrupted or error free. TSI's entire liability, and Your exclusive remedy, under this limited Software Warranty shall be for TSI (i) to attempt, through reasonable efforts, to correct any reproducible material nonconformity discovered within the ninety (90) day warranty period; or (ii) to replace the nonconforming Software with Software which conforms to the foregoing warranty. In the event TSI is unable to cure the breach of warranty described in this Section 6, after attempting the remedies described in (i) and (ii) above, You may return the Software and TSI shall refund any license and maintenance fees paid by You to TSI for the Software. The above remedies are available only if TSI is promptly notified in writing, within the warranty period, upon discovery of the nonconformity by You and TSI's examination of the Software discloses that such nonconformity exists, and that the Software has not been (i) altered or modified, other than by TSI, (ii) subjected to negligence, or computer or electrical malfunctions, or (iii) used, adjusted, or installed other than in accordance with the Documentation. Maintenance Services and Other Services Warranty: TSI warrants that any Maintenance Services or other Services performed pursuant to the terms of this Agreement shall be performed in a professional and workmanlike manner consistent with generally accepted industry standards. TSI's entire liability and Your exclusive remedy under this limited Maintenance Services and Other Services Warranty shall be for You to recover the fees paid for such nonconforming services Disclaimer: THE EXPRESS LIMITED WARRANTIES SET FORTH ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SOFTWARE, AND TSI EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Limitation of Liability: EXCEPT FOR CLAIMS MADE UNDER SECTION 7 ( INDEMNIFICATION ), IN NO EVENT SHALL EITHER PARTY'S LIABILITY ARISING OUT OF THIS AGREEMENT OR THE TERMINATION OF THIS AGREEMENT EXCEED THE AMOUNTS PAID OR DUE TO TSI HEREUNDER. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING IN ANY WAY OUT OF THIS AGREEMENT UNDER ANY CAUSE OF ACTION, WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Warranty Claims: Any claims made by You for the breach of a warranty set forth in this Section 6, shall be made in writing and delivered in writing to TSI, and You shall provide TSI a reproducible test case, if applicable, demonstrating the breach of warranty. Section 7 - Indemnification TSI warrants that the use of unaltered Software Program(s), or the exercise of the licenses granted hereunder, will not infringe any copyright or patent, or other intellectual property rights of any third party, and TSI has all rights necessary for the grant of the rights and licenses granted by this Agreement. TSI agrees to indemnify, defend and hold You harmless from any and all actions, causes of action, claims, demands, reasonable costs, liabilities, reasonable expenses (including attorney's fees) and damages (collectively, a "Loss" or "Losses") arising from any claim that the Software Program infringes any copyright or patent, or other intellectual property right of a third party, provided, however: (1) You shall promptly deliver to TSI notice in writing of any claim for recovery under this section, and, if known, specify in reasonable detail the nature of the Loss and the amount, or an estimate of the amount, of the liability arising there-from. You shall, at TSI's expense, provide to TSI as promptly as practicable thereafter information and documentation reasonably requested by TSI to support and verify the claim assert-ed, provided that, in so doing, it may restrict or condition any disclosure in the interest of preserving privileges of importance in any foreseeable litigation. (2) If the facts pertaining to the Loss arise out of the claim of a third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, TSI shall assume the defense or the prosecution thereof, including the employment of counsel or accountants, at its cost and expense. You shall have the right to employ counsel separate from counsel employed by TSI in any such action and to participate therein, but the fees and expenses of such counsel employed by You shall be at Your expense. TSI shall have the right to determine and adopt (or, in the case of a proposal by You, to approve) a settlement of such matter in its reasonable discretion. TSI shall not be liable for any settlement of any claim effected without its prior written consent, which shall not be unreasonably withheld. Whether or not TSI chooses to so defend or prosecute such claim, You and TSI shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. (3) If such a claim arises, or in either party's judgment is likely to arise, You agree to allow TSI, at TSI's option, to either (i) procure the right to permit the continued exercise of the rights and licenses in the Software Program granted under this Agreement; (ii) replace or modify the Software Program so it be-comes non-infringing, while affording equivalent performance; or (iii) as its sole obligation, terminate the license for the infringing Software Program and upon return thereof by You, refund the unearned portion of any license fees paid by You for the remainder of the current term hereof. (4) TSI shall have no indemnity obligation for claims of infringement resulting from any combination, operation or use of the Software Program, or any components thereof, with any software programs or data not supplied by TSI if such infringement would have been avoided by use of the Software Program alone. You acknowledge and agree that these four items are the exclusive remedy of You for damages for breach of warranty or representations contained in this Section 7. Section 8 - Termination Should either party commit a material breach of its obligations hereunder, the other party may, at its option, terminate this Agreement by written notice to the party in default. Such notice shall identify and describe the default upon which termination is based. The defaulting party shall have thirty (30) days from the effective delivery of the notice to cure such default, which, if effected, shall prevent termination by virtue of such default. Upon termination of this Agreement, You will either return to TSI or destroy all copies of the Software Program and documentation then in your possession. You shall, within thirty (30) days after the date of such termination furnish TSI with a certificate of compliance in accordance with this Section. The parties agree that TSI shall have the right to enforce the obligations arising under this Section by seeking specific performance and to enjoin or compel You through injunctive relief. Section 9 - Export Controls You shall comply with, all applicable laws, regulations, rulings and executive orders of the Japan relating to the export and re-export of Products containing the Software Program. You shall not directly or indirectly export or re-export any Products containing the Software Program unless You have obtained a license to do so if such a license is required. Section 10 - Entire Agreement This Agreement, including any attachments, constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements, both oral and written, representations, statements, negotiations and undertakings, with respect to the subject matter hereof, which such agreements, representations, statements, negotiations and undertakings are merged herein. No amendment or modification of this Agreement or any provision or attachment of this Agreement shall be effective unless it is in writing and signed by both parties. Section 11 - Governing Law The validity, construction and performance of this Agreement shall be governed by the substantive laws of Japan (excluding conflicts of law principles). Each party hereto expressly consents to the personal jurisdiction of, and venue in, such courts. If any legal action is undertaken to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and costs in addition to any other relief to which that party may be entitled. Section 12 - Assignment and Benefit Without the consent of the other party in writing, neither party may assign this Agreement; provided, however, TSI or You may assign this Agreement to a wholly-owned subsidiary of the respective corporation or a corporation in which the shareholders of the respective corporation own a majority interest of the voting control provided that the assigning party remains obligated hereunder; further provided, however, TSI or You may assign this Agreement to another corporation which acquires or has acquired substantially all of the stock or assets of the assignor so long as, if the assignor is You, the assignee's license to use the Software Program is limited to the specific Server for which the Software Program is licensed. This Agreement shall be binding upon and shall inure to the benefit of You and TSI and each party's successors, subject to the other provisions of this Section. Section 13 - 3rd Party Components (1) The Software Program includes software and documentation components developed in part by Silver Egg Technology, Inc.("SET") prior to 2001. All SET components were released under the following license. Copyright (c) 2001 Silver Egg Technology Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sub-license, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software. THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.