Agreement No Exclusive Software License

License Agreement for Software

Agreement made on the , between , a corporation organized and existing under the laws of the state of , with its principal office located at , referred to herein as Licensor, and , a corporation organized and existing under the laws of the state of , with its principal office located at , referred to herein as Licensee.

Subject to the terms and conditions of this Agreement set forth below, and in accordance with the attached Exhibits identified below, Licensor grants to Licensee a license to use the Licensed Programs.

A. Exhibit A -- End User License Agreement

B. Exhibit B -- License and Other Fees

C. Exhibit C -- Trademarks, Trade Names, and Copyrights

D. Exhibit D -- Product Support

E. Exhibit E -- Escrow Agreement

F. Exhibit F – Licensed Programs Product Specification

G. Exhibit G -- Development Plan, Acceptance, and Remedy

H. Exhibit H -- Command Set

For and in consideration of the mutual covenants contained in this agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Definitions

As used in this Agreement, the following terms shall have the meaning indicated:

A. Source Code means a human readable form of computer program showing the computer language instructions comprising the program, from which Object Code can be produced, in which the program logic may be deduced by a human being, and from which a printed listing can be made by processing it with a computer.

B. Object Code means a form of computer program resulting from the compilation or other processing of Source Code by a computer into machine language or intermediate code, and thus is a form that would not be convenient to human understanding of the program logic, but which is appropriate for the construction and linking of binary executable modules, as well as for the execution by a computer.

C. Licensed Programs means computer software in Object Code only as specified in Exhibit , and all modifications and enhancements of it, if any.

D. Use means copying any portion of the Licensed Programs into a computer and/or transmitting it to a computer for processing of the machine instructions or statements contained in the Licensed Programs.

E. License means the non-exclusive, non-transferable right of Licensee to use, reproduce, and distribute the Licensed Programs integrated with a Licensee Accepted Application and subject to the provisions of this Agreement.

F. Supported Environments shall mean those set forth in Exhibit .

G. Derivative Work means a revision, modification, translation, abridgement, condensation, or expansion of a computer program, or any other form in which the program may be recast, transferred, or adapted, which if prepared without the consent of Licensor would constitute a copyright infringement.

H. Application shall mean a product in which the Licensed Programs, or any part of them, are integrated with an Accepted Application for execution by an End User on a Supported Environment. Applications may only run other applications that are themselves Accepted Applications and then only if they are invoked at the beginning of the session. Applications may not be used on a server to run other applications.

I. End User License Agreement means the standard written End User License Agreement, in the form attached as Exhibit , which will be entered into between Licensee and an End User to enable the End User to lawfully use Licensee's Application on the platform specified in the Agreement.

J. Intellectual Property Rights means all rights held by any party to this Agreement to any item of Intellectual Property.

K. Significant Value Added means vertical application software that provides significant functions not available through the Licensed Programs alone. Such application software should combine the functionality of the Licensed Programs in novel ways, enhance the basic Licensed Program's capabilities, and otherwise provide "higher" level functions.

L. An Accepted Application shall mean an application that (except to the extent that Licensor and Licensee mutually agree in writing) meets the criteria in Subparagraphs 1, 2, and 3 below, and meet the criteria in either Subparagraph 4 or 5 below:

1. It must have been developed by Licensee (but may contain third-party content comprising less than % of the object code), or Licensee must be in possession of the exclusive distribution license for the United States;

2. It must prerequisite (that is, technically required for its operation) ;

3. It must have been, and must continue to be, actively marketed and sold as a product to End Users and Resellers for operation with (even if also available in the form of a(n) Application);

4. It must be or must have been actively marketed and sold by Licensee as of at a United States list price exceeding $. Notwithstanding the foregoing sentence, the are deemed to meet the criterion in this Subparagraph 4. In no event will any member of the existing family of products be considered an Accepted Application; and

5. Licensor and Licensee must agree that it demonstrates Significant Value Added, as to its value content, to an extent at least on the order of existing applications meeting the criteria of subparagraphs 1 through 4 above. For products solely developed by Licensee (or for which Licensee has the exclusive worldwide distribution license), the bona fide United States list price shall be considered to measure the value content.

2. Ownership of Licensed Programs

Licensee acknowledges and agrees that:

A. Title to and all rights of ownership in the Licensed Programs, and all copies of all or any part of them, are and remain with Licensor;

B. The Licensed Programs contain and are comprised of Licensor's trade secrets and other proprietary, confidential information; and

C. Licensee will not sell, lease, lend, transfer, assign, hypothecate, or otherwise distribute the Licensed Programs except as expressly authorized in this Agreement.

3. License

A. Licensor grants to Licensee a nonexclusive, nontransferable, world-wide license to use the Licensed Programs solely for the purpose of creating Applications, as defined in this Agreement, and to distribute Applications, subject to the condition that in order to qualify for integration with the Licensed Programs to create a Application, the application must be an Accepted Application under this Agreement.

B. Title to the Licensed Programs shall remain in Licensor at all times. Licensee does not have, and shall not attempt to obtain, any title to Licensor's Licensed Programs or Intellectual Property.

C. Licensee is acquiring an Object Code Version of the Licensed Programs, and thus shall not have the right to modify or adapt the Licensed Programs for incorporation into Applications.

D. For any Application as to which the list price is at any time less than Licensor's list price for , then notwithstanding the terms of Section 4 and Exhibit of this Agreement, the royalty payable to Licensor for distribution of each copy of such Application during such time shall be equal to the purchase price which Licensee at such time pays to Licensor for Product Kits of pursuant to the Distribution Agreement dated , or, if lapsed, the final such price payable under the Agreement at the time of the lapse. Licensee's discount schedules and policies (for end users, resellers, and distributors) for Applications shall be consistent with its then-existing discount schedules and policies for its other software products.

E. Licensor grants to Licensee a personal, nonexclusive, and nontransferable license to use the Licensed Programs on any of its internal systems for the sole purpose of creating Applications, without payment of any royalty.

F. Licensor grants to Licensee a personal, nonexclusive, and nontransferable license to use the Licensed Programs without fee or royalty solely for demonstrations of Applications to existing or potential end-users, and for training and support.

G. As part of the demonstration to potential End Users, Licensee shall be allowed to loan copies of Applications without the payment of a royalty or fee under this agreement. All such loans will be limited to evaluation purposes, and copies used for productive purposes shall be specifically excluded from this provision. Licensee agrees to use its best judgment in the loaning of copies of Applications.

4. License, Payment and Taxes

A. As compensation for the license to use the Licensed Programs as set forth in this Agreement, Licensee shall pay to Licensor the royalties and other fees set forth in Exhibit . Royalty payments required as documented in Licensee's records and maintained in accordance with Section 5 of this Agreement shall be due within days after the end of each calendar quarter for copies of any Application distributed by Licensee during the calendar quarter. In no event shall Licensee be entitled to a refund of any License Fees or prepaid royalties, except in the case of return by End Users within days.

B. All payments provided for in this Agreement are exclusive of, and Licensee shall pay, all taxes, customs duties, insurance, shipping, and other charges. Payments made to Licensor shall be in United States Dollars.

C. If any payment, or any other sum due from Licensee under this agreement, should become overdue, a late payment charge of % per month on the overdue balance shall be paid to Licensor by Licensee. Such late payment charge shall be due and payable on request from Licensor.

5. Recordkeeping and Reports

A. Licensee agrees to maintain reasonable royalty records relating to all Applications licensed under this agreement. Licensee shall prepare and submit summary quarterly reports to Licensor no later than days following the last business day of each calendar quarter, which reports must specify the name and quantities of all Applications licensed to End Users, distributors, or resellers during the quarter.

B. Licensee agrees to allow an independent certified public accountant, or other audit professional, selected by Licensor and acceptable to the Licensee, to audit and analyze appropriate accounting records of Licensee, including the Registration database described in Section 7, Paragraph B of this Agreement, to ensure compliance with all the terms of this Agreement. Any such audit shall be permitted by Licensee within days of Licensee's receipt of a written request of Licensor to audit during normal business hours. The cost of the audit will be borne by Licensor unless a material discrepancy indicating inadequate record keeping or that additional license or royalty fees are due to Licensor is discovered, in which case the cost of the audit shall be borne by Licensee. A discrepancy shall be deemed material if it involves an adjustment of more than $ in favor of Licensor. Audits shall not interfere unreasonably with Licensee's business activities.

6. Trademarks and Copyright Notices

A. The trademarks and trade names under which Licensor markets any of its products are the property of Licensor. This Agreement gives Licensee no rights in them, except the restricted license to reproduce such trademarks and trade names in any authorized reproduction of an Application, provided that Licensor is referenced as the owner of the trade name or trademark, as specified in Exhibit . Licensee may not market the Licensed Programs alone or in any form other than in a(n) Application, as defined in this Agreement. Licensee's Applications may be marketed under any name of Licensee's choosing, however, such Application shall be designated as containing Licensor's Licensed Programs, which shall be acknowledged in accordance with the attached Exhibit . Licensee may refer to Applications as "" or "" but may not use the word "" in any other reference to Applications or in any manner that otherwise implies that a license for is provided with the Application.

B. Licensee agrees to use the trademark, trade name, and copyright notices of the Licensed Programs and any documentation in connection with its advertisement and distribution of any Application. Licensee shall request and use reasonable diligence to ensure compliance by all Licensee's distributors and dealers. Trademark, trade name, and copyright notices placed by Licensee shall read as specified in the attached Exhibit . Licensor retains the right to specify the reasonable quality and standards of all materials on which a trademark or trade name is used. In the case of a failure by Licensee to adhere to such standards of quality such failure shall be grounds for Licensor to terminate Licensee's right to the use of the trademark or trade name in such cases.

7. Licensed Program Reproduction and Serialization

A. Licensee is authorized to reproduce the Licensed Programs for inclusion in a(n) Application only at the location of its principal office specified on the first page of this Agreement. A subsidiary or affiliate of Licensee, which has been authorized by Licensee to reproduce its Applications, shall have the right to reproduce the Licensed Programs only under the condition that any reproduction site other than Licensee's principal office must be specifically authorized by Licensor to reproduce the Licensed Programs for inclusion in Applications, which authorization shall not be unreasonably withheld.

B. Licensee will assign a unique serial number to each copy of a Application. Licensee will also require each End User of a(n) Application to agree to an End User Software License Agreement in the form attached as Exhibit and to register with Licensee, and Licensee will maintain a Registration database showing the serial number, registered owner, and date of acquisition of each copy of a(n) Application.

8. Distribution and Export Restrictions

A. Licensee shall include an End User License Agreement in the form attached as Exhibit with each copy of a Application distributed to End Users. Licensee shall use its best efforts to obtain either directly or through its distribution channels the signature of the End User on the End User License Agreement. Breaking a shrink wrap seal will be considered equivalent to an End User signature.

B. Licensee shall take reasonable steps to ensure that each intermediate entity in its chain of distribution to the final End User respects Licensor's copyrights, trade names, and trademarks, complies with the licensing and reporting requirements of this agreement, and makes no unauthorized copies of the Licensed Programs or Application.

C. End Users may use Applications for the term and in the manner provided for in the End User License Agreement. End User rights and obligations set forth there will survive any termination of the relationship between Licensee and Licensor.

D. Licensee warrants and gives written assurance to Licensor that it will do all things necessary to comply with the current United States Export Administration and any other United States laws and regulations as they apply to the Licensed Programs, Application, and all other things delivered to, or derived from things delivered to, Licensee under this Agreement (all and any part of such things collectively referred to as Technical Data). Licensee agrees to comply with these laws and regulations as they apply at the time of exporting the Technical Data, as they may be revised and modified at various times.

9. Patent and Copyrights

A. Licensor warrants that:

1. It is the owner of the Licensed Programs, including all intellectual property rights in them under copyright, patent, trademark, trade secret, and other applicable law;

2. The Licensed Programs do not infringe or otherwise violate any copyright, patent, or trade secret of any third party; and

3. As of the date of this Agreement it has not received notice of any claim from a third party that the Licensed Programs infringe intellectual property rights of any third party.

B. Licensor will defend any action brought against Licensee to the extent that it is based on a claim that the unmodified Licensed Programs furnished under this Agreement and used within the scope of the license granted under this Agreement infringe a patent or copyright or misappropriate a trade secret. Licensor will pay resulting costs, damages, and legal fees finally awarded against Licensee in any such action, which are attributable to such claim provided that:

1. The Licensee notifies Licensor promptly in writing of any such claim; and

2. Licensor has sole control of the defense of any such claim and all related settlement negotiations.

C. Should the Licensed Programs become, or be likely to become, in Licensor's opinion, the subject of a third-party claim of infringement of copyright or patent, Licensor may procure for Licensee the right to continue using the Licensed Programs, or replace or modify them to make them non-infringing and functionally equivalent to the Licensed Programs. Licensor shall have no liability for, and Licensee shall indemnify and hold Licensor harmless from and against any claim based on:

1. Use of other than an unaltered release of the Licensed Programs; or

2. Use, operation, or combination of the Licensed Programs with non- programs or data if such infringement would have been avoided but for such use, operation, or combination.

D. This Section 9 states the entire liability of Licensor with respect to infringement of copyrights, patents, or other intellectual property rights.

10. Warranty, Support, and Maintenance

A. If Licensee finds what it believes to be a Deficiency per Exhibit , which materially affects performance, and provides Licensor with a written report, Licensor will either use reasonable efforts to promptly correct, at no cost to Licensee, any such errors or failures, or at its discretion, allow Licensee to loan copies of for a particular application, solely in accordance with the procedure set forth in Exhibit . This is Licensee's sole and exclusive remedy for breach of any express or implied warranties under this Agreement, other than the warranty against infringement specified in Section 9. Licensor's warranty and obligations shall extend so long as Licensee is current on its support payment obligations specified in Exhibit . Licensor's warranty and obligation is solely for the benefit of Licensee, which has no authority to extend this warranty to any other person or entity. LICENSOR MAKES NO WARRANTY THAT ALL ERRORS OR FAILURES WILL BE CORRECTED.

B. Licensor agrees to provide to Licensee the support defined in the attached Exhibit , and Licensee agrees to pay for such support as specified in it.

C. Licensee is solely responsible for all magnetic media and other program materials provided to End Users and for passing on to its distributors, dealers, and End Users all maintenance material. These responsibilities may be performed at Licensee's discretion, but in no event shall Licensor provide any of these services. Licensee is solely responsible for all verbal and written contact with the End Users of its Applications, including:

1. Software maintenance including patches and updates; and

2. Software support including operational instruction, problem reporting, and technical advice.

D. EXCEPT AS PROVIDED IN PARAGRAPH A OF THIS SECTION TEN, ALL WARRANTIES (INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) AND REPRESENTATIONS EXPRESSED OR IMPLIED BY STATUTE, COMMON LAW, OR OTHERWISE ARE EXCLUDED.

11. Confidential Information

A. The Licensed Programs and all information which is provided to Licensee under this Agreement is confidential, including, but not limited to, drawings, Object Code, Source Code, computer program listings, techniques, algorithms and processes, and technical and marketing information (Confidential Information) and shall be treated confidentially by Licensee, its employees, and representatives, and shall not be disclosed by Licensee without Licensor's prior written consent. Information shall not be considered to be Confidential Information if it:

1. Is already or otherwise becomes publicly known through no act of the receiving party;

2. Is lawfully received from third parties subject to no restriction of confidentiality; or

3. Can be shown by the receiving party to have been independently developed by it prior to such disclosure.

B. Licensee shall not copy, reproduce, remanufacture, or disassemble the Object Code or in any way duplicate all or any part of the Confidential Information, including translating it into another software language, except in accordance with the terms and conditions of this agreement.

12. Limitation of Liability

A. In no event shall Licensor be liable for any loss of profits, loss of business, loss of use or of data, interruption of business, or for indirect, special, incidental or consequential damage or injury, direct or indirect, of any kind, whether under this agreement or otherwise. In no case will Licensor be liable for any representation or warranty made to any third party by Licensee, any agent for Licensee, or any distributor or dealer or other person or entity in the distribution chain.

B. Notwithstanding anything in this Agreement to the contrary, the entire liability of Licensor to Licensee for damages concerning performance or nonperformance by Licensor or in any way related to the subject matter of this Agreement and regardless of whether the claim for such damages is based in contract or in tort shall not exceed the amount of payments made under this Agreement by Licensee to Licensor.

13. Terms of Agreement and Termination

A. The term of this agreement shall commence on the date it is executed by Licensor and shall continue unless earlier terminated as provided in this Section or otherwise rightfully terminated. Notwithstanding the foregoing, Licensee may not distribute Applications before .

B. Licensor may terminate this Agreement immediately and all rights and licenses granted under this Agreement if Licensee materially breaches this agreement, and if the breach is not cured within days after written notice of the breach.

C. Notwithstanding any other provision of this Agreement, the occurrence of any of the following events shall, at the option of Licensor, constitute an event of material breach under this Agreement entitling Licensor to terminate this Agreement immediately:

1. If a petition or action shall be filed or taken by or against Licensee under any law dealing with insolvency, bankruptcy, or suspension of payment;

2. If a Receiver is appointed over the assets or undertaking of Licensee (or any part of them);

3. If Licensee enters into a deed or arrangement or makes an assignment for the benefit of creditors; or

4. If Licensee ceases to function as a going concern or an order is made or a resolution passed to that effect except for the purposes of amalgamation or reorganization.

Licensee shall notify Licensor immediately on the occurrence of any of the foregoing events.

D. The obligations of Licensee in Section 11 under this Agreement shall survive termination of this Agreement. On termination of this Agreement, Licensee shall immediately cease marketing Applications and shall promptly return to Licensor and make no further use of the Licensed Programs and other materials provided to Licensee under this Agreement.

E. This Agreement is executory in nature and so long as Licensee has any continuing obligations under this Agreement, Licensor shall be entitled to protect the Licensed Programs and master reproduction sets of the Licensed Programs from breaches of this agreement. Licensor reserves the right to repossess, after a(n) -day notice period in which Licensee fails to cure any such material breach, the Licensed Programs and master reproduction sets. This right shall continue to subsist notwithstanding the termination of this Agreement and is without prejudice to any accrued rights of Licensor under this Agreement.

14. Other

A. This is a License Agreement. No agency, partnership, joint venture, or other joint relationship is created by it and neither Licensee nor Licensee's agents have any authority of any kind to bind Licensor in any respect whatever.

B. Notwithstanding anything in this Agreement to the contrary, no default, delay, or failure to perform on the part of either party shall be considered a breach of this Agreement if such default, delay, or failure to perform is shown to be due entirely to causes beyond the reasonable control of the party charged with a default, including, but not limited to, causes such as strikes or other labor disputes, riots, civil disturbances, actions of governmental authorities, epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters, or default of a common carrier.

C. Wherever in this Agreement either party's consent is required, such consent shall not unreasonably be withheld or delayed.

D. Licensor agrees to deposit a copy of the Source Code of the Licensed Programs, including all software materials necessary for a successful build of the Licensed Programs, with an independent Escrow Agent under an Escrow Agreement in the form attached as Exhibit .

E. Licensee may not distribute with Applications any documentation, printed or on-line, other than the Permitted Documentation provided pursuant to Exhibit , and then only with Licensor's prior written consent. The criteria for such consent by Licensor (which will not be unreasonably withheld) will be its determination that the full documentation for the Application sufficiently emphasizes its Significant Value Added, rather than the functions of the Licensed Programs.

15. Severability

The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision.

16. No Waiver

The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

17. Governing Law

This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of .

18. Notices

Any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement.

19. Attorney’s Fees

In the event that any lawsuit is filed in relation to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees.

20. Mandatory Arbitration

Any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect.

21. Entire Agreement

This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement.

22. Modification of Agreement

Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party.

23. Assignment of Rights

The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express, and written consent of the other party.

24. In this Agreement, any reference to a party includes that party's heirs, executors, administrators, successors and assigns, singular includes plural and masculine includes feminine.

WITNESS our signatures as of the day and date first above stated.