Fill and Sign the License Agreement Regarding Obtaining a License and Willing to License Software Form

S O F T W A R E L I C E N S E A G R E E M E N T between CYCLONE SOFTWARE CORPORATION 11000 North Scottsdale Road Suite 260 Scottsdale, Arizona 85254 and ________________________________________________________________________________ ("Licensee") ________________________________________________________________________________ Address ________________________________________________________________________________ City State Zip Code Telephone Number INITIAL ORDER: Number of Permitted Trading Partners:___________________________________________ Initial License Fee:____________________________________________________________ Effective Date:_________________________________________________________________ 1. DEFINITIONS 1.1 "Cyclone Interchange" shall mean Cyclone Software Corporation's (Cyclone's) commercial computer software product known as Cyclone Interchange, licensed to operate with a specific number of Permitted Trading Partners. 1.2 "Software" shall mean Cyclone Interchange. With respect to the Software product, the definition shall include any accompanying Documentation, including any corrections, updates, upgrades and enhancements ("Updates") thereto made available by Cyclone to Licensee pursuant to the terms of this Agreement. 1.3 "Documentation" shall mean the manuals, guides, online help, readme files, training materials, tutorials, job aids, quick references, and other technical documentation, provided in any media, which Cyclone generally makes available for use with a particular Software product. 1.4 "Designated Server" shall mean any single computer at the location identified above, as amended pursuant to Section 4.2. 1.5 "Permitted Trading Partners" shall mean the maximum number of Partner Profiles, as defined in the Documentation, permitted for use under this Agreement. The maximum number of Permitted Trading Partners is identified above, and may be amended pursuant to Section 4.3. Licensee may determine the identity of specific Permitted Trading Partners. 1 28 1.6 "Cyclone Interchange Solo" shall mean a Cyclone Interchange configured and licensed to be used with one (1) Permitted Trading Partner. 2. GRANT OF RIGHTS 2.1 Licenses. Cyclone hereby grants to Licensee the following Software license: a nonexclusive, nontransferable license, without right of sublicense, to install and use, solely in object- or byte-code format, and solely for Licensee's internal business purposes, solely on a Designated Server, and within the maximum number of Permitted Trading Partners. 2.2 Copies. (a) Software. Licensee may make copies of the Software as reasonably required for internal testing, training, and for archival purposes pursuant to Licensee's standard archival procedures. (b) Documentation. Licensee may make copies of the Documentation as reasonably required to allow Licensee's employees to use the Software in accordance with the licenses granted in this Section 2. 2.3 Limitations. Licensee shall have the rights only with respect to the Software and Documentation expressly set forth herein. In particular, (i) Licensee shall have no right to use, copy, modify, display, rent, lease, loan or otherwise distribute the Software or Documentation except as expressly provided herein, and (ii) Licensee shall not decompile, reverse engineer or otherwise attempt to obtain, derive or modify the source code or architecture of the Software. 2.4 Use by Trading Partners. During the term of this Agreement, Cyclone agrees to provide, according to Cyclone's standard Software License Agreement, a no-cost, nontransferable Cyclone Interchange Solo license to each of Licensee's Permitted Trading Partners. This Cyclone Interchange Solo license is to be used by the Permitted Trading Partners to trade only with Licensee. 3. PROPRIETARY RIGHTS 3.1 Ownership. The Software and Documentation are proprietary to Cyclone or its licensors and, except for the licenses explicitly granted hereunder or otherwise granted by Cyclone, Cyclone or its licensors own all right, title and interest, including without limitation all intellectual property rights, in and to the Software and Documentation, and in and to any copies, translations, compilations, partial copies, modifications, improvements, enhancements, and updates of the Software and Documentation. Licensee shall not remove any proprietary notices from any part of the Software or Documentation, and shall reproduce such notices on any copies of such materials made by Licensee in the same manner as such notices appear on the originals. 3.2 Confidentiality. Licensee acknowledges that the Software (including materials, processes or techniques utilized in the Software) are proprietary to and valuable trade secrets of Cyclone and/or its licensors, and Licensee agrees to maintain their confidential nature. Licensee shall exercise at least the same degree of care to protect the confidentiality of the Software as it would exercise in protecting its own similar confidential information. Licensee will take all steps 2 29 necessary to ensure that the Software shall not be disclosed to, or used by, any person, association or entity except Licensee's own employees and consultants and then only to the extent necessary for Licensee's permitted use of the Software and consistent with the protection required by this Section. Additionally, each party agrees that while either may disclose the existence of this Agreement, the exact terms shall be deemed confidential information. 4. SOFTWARE USE 4.1 Back-Up Hardware. Licensee may use a single back-up or replacement CPU as a temporary substitute for a Designated Server while it is inoperative because it is malfunctioning or undergoing repair, maintenance or other modification; provided that the Software shall be removed from such back-up or replacement hardware when the original Designated Server is returned to use. 4.2 Replacement Hardware. Licensee may permanently substitute new hardware for a Designated Server without additional charge. 4.3 Ordering New Software. (a) Licensee may license additional Permitted Trading Partners by submitting a purchase order or other notice to Cyclone specifying the number of Permitted Trading Partners which Licensee wishes to add to this Agreement; provided, however, that Licensee may only increase the number of Permitted Trading Partners in increments according to Cyclone's then-current pricing policies. Upon receipt of such order, Cyclone shall invoice Licensee for the agreed upon license fees due and shall provide Licensee with the information necessary to be input in a manner specified by Cyclone to provide access to the Software by up to the appropriate number of new Permitted Trading Partners. (b) Notwithstanding anything herein to the contrary, the ordering and use of the Software shall be governed by the terms of this Agreement, and nothing contained in any purchase order submitted by Licensee other than order dates, identity, location, quantity and price shall in any way serve to modify or add to the terms of this Agreement. (c) Notwithstanding anything herein to the contrary, where Licensee has purchased Maintenance (as defined in Section 7 below) for the Software, continued Maintenance shall be subject to Licensee's payment of a pro rata share of the Maintenance fee due for the additional Software ordered by Licensee, as provided in Cyclone's then-current Maintenance policy. 5. LICENSE FEE AND PAYMENT 5.1 Fees. The license fee for the software initially licensed by Licensee hereunder is set forth on the face of this Agreement. All amounts payable under this Agreement shall be paid net thirty (30) days from the date of invoice. Any amounts due Cyclone under this Agreement not received by Cyclone by the date due shall be subject to a service charge of one and one-half percent (1 1/2%) per month, or the maximum charge permitted by law, whichever is less. 3 30 5.2 Taxes. Unless separately stated, all charges under this Agreement do not include any taxes, duties or charges of any kind (including withholding or value-added taxes) imposed by any federal, state or local governmental entity for products or services provided under this Agreement. When Cyclone has the legal obligation to collect such taxes, the appropriate amount shall be due upon invoice to Licensee unless Licensee provides Cyclone with a valid tax exemption certificate authorized by the appropriate taxing authority. 6. LIMITED WARRANTY Cyclone warrants that it is the owner of the Software and/or has the right to grant Licensee the rights set forth herein; provided that Licensee's sole remedy, and Cyclone's sole obligation, with respect to such warranty shall be Cyclone's indemnification obligation set forth in Section 8 below. EXCEPT FOR THIS EXPRESS LIMITED WARRANTY, NEITHER CYCLONE NOR ITS LICENSORS MAKE ANY WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 7. MAINTENANCE SERVICES Cyclone will maintain the Software in an operable condition in accordance with the specifications contained in the Documentation supplied with the Software for a period of 90 days after the Effective Date. Also during this period, Cyclone shall provide Licensee without charge such corrections and improvements as Cyclone may make generally available to its Software licensees as part of standard maintenance service. All such services shall be referred to as "Maintenance" and shall be provided according to Cyclone's then-current Maintenance Policy. Upon expiration of this initial period of Maintenance, Licensee shall have the option to continue to receive Maintenance in accordance with Cyclone's then-current Maintenance Policy upon payment in advance to Cyclone, on an annual basis, of the Maintenance charges then in effect for the Software licensed to Licensee. 8. INTELLECTUAL PROPERTY RIGHTS INDEMNITY Cyclone agrees, at its own expense, to defend or, at its option, to settle, any claim or action brought against Licensee on the issue of infringement of any United States copyright or trade secret of any third party by the Software as used within the scope of this Agreement, and to pay all damages and costs, including reasonable legal fees, which may be assessed against Licensee under any such claim or action. Cyclone shall be released from the foregoing obligation unless Licensee provides Cyclone with (i) written notice within fifteen (15) days of the date Licensee first becomes aware of such claim or action, or possibility thereof, (ii) sole control and authority over the defense or settlement thereof and (iii) proper and full information and assistance to settle and/or defend any such claim or action. Without limiting the foregoing, if a final injunction is, or Cyclone believes, in its sole discretion, is likely to be, entered prohibiting the use of the Software by Licensee as contemplated herein, Cyclone will, at its sole option and expense, either: (a) procure for Licensee the right to use the infringing Software as provided herein, or (b) replace the infringing Software with noninfringing, functionally equivalent products, or (c) suitably modify the infringing Software so that it is not infringing; or, (d) in the event (a), (b) and 4 31 (c) are not commercially reasonable, accept return of the infringing Software. Except as specified above, Cyclone will not be liable for any costs or expenses incurred without its prior written authorization. Notwithstanding the foregoing, Cyclone assumes no liability for infringement claims arising from (i) combination of the Software with other products not provided by Cyclone, but not covering the Software, or (ii) any modifications to the Software unless such modification was made by Cyclone. THE FOREGOING PROVISIONS OF THIS SECTION 8 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF CYCLONE OR ITS LICENSORS, AND THE EXCLUSIVE REMEDY OF LICENSEE, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE SOFTWARE. 9. LIMITATION OF LIABILITY EXCEPT AS PROVIDED IN SECTION 8, CYCLONE'S LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF LICENSE FEES RECEIVED BY CYCLONE FROM LICENSEE UNDER THIS AGREEMENT. IN NO EVENT SHALL CYCLONE OR ITS LICENSORS HAVE ANY LIABILITY FOR LOST PROFITS, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING IN ANY WAY OUT OF THIS AGREEMENT UNDER ANY CAUSE OF ACTION, WHETHER OR NOT CYCLONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE UNDERSTANDS THAT NOTHING CONTAINED HEREIN SHALL RELEASE LICENSEE FROM PAYING ANY AMOUNTS THEN DUE AND OWING TO CYCLONE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 10. TERM AND TERMINATION 10.1 Termination. This Agreement is effective until terminated. Upon prior written notice, either party may terminate this Agreement if the other party becomes insolvent, ceases doing business in the regular course, files a petition in bankruptcy or is subject to the filing of an involuntary petition for bankruptcy which is not rescinded within a period of forty-five (45) days, or fails to cure a material breach of any term or condition of this Agreement within thirty (30) days of receipt of written notice specifying such breach. 10.2 Return of Materials. Upon termination of this Agreement for any reason, Licensee shall immediately discontinue use of the Software and Documentation and within ten (10) days after termination certify. in writing to Cyclone that all copies of the Software and Documentation, in whole or in part, in any form, have either been returned to Cyclone or destroyed in accordance with Cyclone's instructions. All payments made by Licensee to Cyclone hereunder are non-refundable. 10.3 Effect of Termination. The following provisions shall survive any termination of this Agreement: Sections 3, 5, 6, 8, 9, 10.2 and 11. Termination shall not release Licensee from 5 32 paying any amounts owed to Cyclone under this Agreement. All other rights and licenses granted hereunder will cease upon termination. 11. GENERAL 11.1 Assignment. Licensee may not assign its rights, duties and obligations under this Agreement, except with the advance written consent of Cyclone. Any attempted assignment contrary to the terms of this clause shall terminate this Agreement. Notwithstanding, the rights and obligations of this Agreement shall be binding on each party's permitted successors and assigns. 11.2 Governing Law and Jurisdiction. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Arizona, without reference to conflict of law principles. The federal and state courts within Maricopa County, Arizona, shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. Each party hereto expressly consents to the personal jurisdiction of, and venue in, such courts. 11.3 No Waiver. The failure of either party to enforce at any time any of the provisions of this Agreement shall not be deemed to be a waiver of the right of such party thereafter to enforce any such provisions. 11.4 Government Customers. Any use of the Software and Documentation by the U.S. Government is conditioned upon the Government agreeing that the Software is subjected to Restricted Rights as provided under the provisions set forth in subdivision (c)(1)(ii) of Clause 252.227-7013 of the Defense Federal Acquisition Regulations Supplement, or the similar acquisition regulations of other applicable U.S. Government organizations. 11.5 Export Laws. Licensee shall comply with all applicable export control laws and regulations, including the Export Administration Regulations maintained by the United States Department of Commerce. Licensee acknowledges that certain Cyclone products utilize encryption technology, which is specifically regulated by the U.S. Government. 11.6 Entire Agreement. This Agreement and Exhibits attached hereto and incorporated herein constitute the entire agreement between the parties and supersedes all previous agreements or representations, oral or written, relating to this Agreement. This Agreement may not be modified or amended except in writing and signed by a duly authorized representative of each party. 6 33 IN WITNESS WHEREOF, the parties by their duly authorized representatives have executed this Agreement as of the Effective Date. CYCLONE SOFTWARE CORPORATION ____________________________________ ("LICENSEE") By:____________________________ By:_________________________________ Name:__________________________ Name:_______________________________ Title:_________________________ Title:______________________________