This is a legal agreement between you the end user ("Licensee") and Micro Magic, Inc. BY COPYING, INSTALLING, OR USING ANY MICRO MAGIC SOFTWARE OR DOCUMENTATION, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS LICENSE AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE the Software, REMOVE IT FROM YOUR SYSTEM IMMEDIATELY, AND PROMPTLY RETURN the Software AND THE ACCOMPANYING ITEMS (including all documentation and other materials) TO MICRO MAGIC.

 

1. DEFINITIONS

1.1. "License Key" a document (in physical or electronic format) provided by Micro Magic to Licensee which reflects the applicable Licensee purchase order and lists: (i) the Licensed Software, including wversion number and quantity, licensed to Licensee; (ii) the Key Server(s); and (iii) the codes which Licensee must input to initialize use of the Key Servers(s).

1.2. "Licensed Software" means the Micro Magic computer software program(s) which are licensed by Licensee in object code form and identified in the applicable License Key.

1.3. "Key Server" means the computational node, as identified in the License Key, which controls access to and enables the Licensed Software.

1.4. "Confidential Information" (i) the Licensed Software, in object and source code form, and any related technology, idea, algorithm or information contained therein, including without limitation Designs and Materials, Documentation, Intellectual Property Rights, and any trade secrets related to any of the foregoing; (ii) either party's product plans, costs, prices and names; non-published financial information; marketing plans; business opportunities; personnel; research; development or know-how; (iii) any information designated by the disclosing party as confidential in writing or, if disclosed orally, designated as confidential at the time of disclosure and reduced to writing and designated as confidential in writing within thirty (30) days; and (iv) the terms and conditions of this Agreement; provided, however that "Confidential Information: will not include information that : (a) becomes generally know or available by publication, commercial use or otherwise through no fault of the receiving party; (b) is know and has been reduced to tangible from by the receiving party at the time of disclosure and is not subject to restriction; (c) is independently developed by the receiving party without use of the disclosing party's Confidential Information; (d) is lawfully obtained from a third party who has the right to make such disclosure; or (e) is released for publication by the disclosing party in writing.

1.5. "Designs and Materials" means all designs, discoveries, inventions, products, procedures, improvements, developments, drawings, notes, documents, information and materials made, conceived or developed by Micro Magic, and all algorithms, generators, libraries, technical information, and techniques incorporated into Licensed Software.

1.6. "Documentation" means any information provided to Licensee by Micro Magic for use with Licensed Software. Documentation includes user manuals, tutorials, release and application notes, utility programs and any other materials in any form provided for use with the Licensed Software.

1.7. "Intellectual Property Rights" means all patents, patent rights, copyrights, trade secrets, service marks, maskworks, and trademarks, and any applications for any of the foregoing, in all countries in the world.

2. GRANT OF RIGHTS

2.1. License. Micro Magic hereby grants Licensee a nonexclusive, nontransferable license, without right of sublicense, to use the Licensed Software and Documentation only in the quantity authorized by the License Key and for which a license fee has been paid. ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED BY MICRO MAGIC.

2.2. License Restrictions. Licensee acknowledges that the scope of the licenses granted hereunder do not permit Licensee (and Licensee shall not allow any third party) to (i) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying users interface techniques or algorithms of the Licensed Software by any means whatever, or disclose any of the foregoing; (ii) provide, lease, lend, use for timesharing or service bureau purposes the Licensed Software; (iii) use the Licensed Software for the benefit of third parties or allow third parties to use the Licensed Software; (iv) modify, incorporate into or with other software, or create a derivative work of any part of the Licensed Software.

2.3. License Term. Upon the acceptance of Licensee purchase order, a temporary License Key will be issued until full payment is received. Licenses are issued for one year.

2.4. Transfers. With Micro Magic's written consent, Licensee may transfer Licensed Software from one host ID to another host ID with the applicable transfer fees paid in full.

2.5. Evaluation Licenses. In the event Licensee obtains evaluation copies of the Licensed Software, the terms and conditions of this Agreement shall govern, except as follows: (i) Licensee may use such Licensed Software for internal evaluation purposes only: (ii) the term of the evaluation license will be as specified in the applicable License Key; and (iii) Section 8 (Limited Warranty and Disclaimer) is amended such that the Licensed Software is provided "AS IS".

2.6. Compliance. Licensee shall provide information as reasonably requested by Micro Magic to ensure compliance by Licensee with the terms of this Agreement.

3. DELIVERY TERMS

3.1. Purchase Order. In order to obtain products and services, Licensee must first submit a valid purchase order with the following information 1) location and machine host ID number of the Key Server and 2) product, quantity and unit price. All orders are subject to acceptance by Micro Magic. Nothing contained in any purchase order, order acknowledgement, quotation, or invoices shall in any way modify the terms of this agreement. Licensee agrees to pay Micro Magic the license fees, plus applicable taxes as set forth below, in accordance with the payment terms specified in the applicable Micro Magic quotation and/or invoice.

3.2. Delivery by Electronic Transfer. Delivery is either by electronic mail or file transfer protocol ("FTP"). This includes the delivery of Documentation.

3.3. Taxes. License fees payable to Micro Magic under this Agreement are exclusive of any transaction taxes, which may be imposed in accordance with applicable laws as a result of the Licenses granted hereunder. Licensee agrees to bear all such transaction taxes. If payments made hereunder are subject to deduction of any withholding taxes imposed by a tax treaty then in effect between the parties' respective governments, Licensee shall deduct such withholding taxes paid to the relevant authorities from the total amount due Micro Magic. Licensee shall obtain official documentation evidencing payment thereof and shall provide such documentation to Micro Magic within a reasonable period of time.

3.4. Delivery. Upon the acceptance of an order, Micro Magic will electronically deliver the License Key.

4. OWNERSHIP

Micro Magic owns and shall retain all right, title and interest in and to the License Software, Designs and Materials, and Documentation, including all Intellectual Property Rights embodied therein, and Licensee shall have no rights with respect thereto other than the rights expressly set forth in this Agreement.

5. CONFIDENTIALITY

Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party will protect the other's Confidential Information from unauthorized dissemination and use with the same degree of care that each such party uses to protect its own like information. Neither party will use the other's Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. Neither party will disclose to third parties the other's Confidential Information without the > prior written consent of the other party.

6. TERMINATION

Either party has the right to terminate this Agreement if the other party breaches or is in default of any obligation hereunder, which default is incapable of cure or which, being capable of cure, has not been cured with fifteen (15) business days after receipt of written notice from the nondefaulting party. Upon termination, Licensee shall immediately cease all use of the Licensed Software, and destroy all such copies and all portions of the Licensed Software, Documentation, and Designs and Materials, and so certify in writing to Micro Magic. Termination will not relieve Licensee or Micro Magic from any liability arising from any breach of this Agreement. The provisions of Sections 3.3, 4, 5, 6, 7.2, 8, 9, and 12 shall survive any termination or expiration of the Agreement.

7. LIMITED WARRANTY AND DISCLAIMER

7.1. Limited Warranty. Micro Magic warrants for a period of thirty (30) days that the Licensed Software will substantially conform to the specifications in the Licensed Software Documentation. Micro Magic does not warrant that the Licensed Software will meet Licensee's requirements or that operation will be uninterrupted or error-free. MICRO MAGIC'S SOLE LIABILITY AND LICENSEE'S EXCLUSIVE REMEDY WITH RESPECT TO BREACH OF THE FOREGOING LIMITED WARRANTY WILL BE LIMITED TO ERROR CORRECTION OR PRODUCT REPLACEMENT, OR IF NEITHER IS IN MICRO MAIGC'S OPINION COMMERCIALLY FEASIBLE, REFUND OF THE LICENSE FEE RECEIVED BY MICRO MAGIC FROM LICENSEE.

7.2. Disclaimer. EXCEPT FOR THE EXPRESS LIMITED WARRANTY STATED ABOVE, MICRO MAGIC MAKES NO PROMISES, REPRESENTATION OR WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE LICENSED SOFTWARE, INCLUDING ITS CONDITION, ITS CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, AND MICRO MAGIC SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

8. PATENT AND COPYRIGHT INFRINGEMENT

8.1. Indemnity. Micro Magic will defend or settle, at its option and expense, any action brought against Licensee alleging that any product furnished by Micro Magic under this Agreement infringes a United States patent or copyright. Micro Magic will indemnify and hold Licensee harmless from and against any damages, costs and fees reasonably incurred that are attributable to such claim or action and which are assessed against Licensee in a final judgment. Licensee agrees that Micro Magic shall be released from the foregoing obligation unless Licensee provides Micro Magic with: (i) prompt written notification of the claim or action; (ii) sole control and authority over the defense or settlement thereof; and (iii) all available information, assistance and authority to settle and/or defend any such claim or action.

8.2. Limited Remedies. If any Licensed Software becomes, or in the opinion of Micro Magic is likely to become, the subject of an infringement claim or action Micro Magic may at its sole option: (i) procure, at no cost to Licensee, the right to continue using the Licensed Software; (ii) replace or modify the Licensed Software to render it noninfringing, provided there is no material loss of functionality; or (iii) if, in Micro Magic's reasonable opinion, neither (i) nor (ii) above are commercially feasible, terminate the license and refund the amounts Licensee paid for such Licensed Software as depreciated on a straight-line sixty (60) month basis.

8.3. Exceptions. Micro Magic will have no liability under this Section for any claim or action where: (i) such claim or action would have been avoided but for modifications of the Licensed Software, or portions thereof, made after delivery to Licensee; (ii) such claim or action would have been avoided but for the combination or use of the Licensed Software, or portion thereof, with other products, process or materials not supplied or specified in writing by Micro Magic; (iii) Licensee continues allegedly infringing activity after being notified thereof or after being informed of modification that would have avoided the alleged infringement; or (iv) Licensee's use of the Licensed Software is not strictly in accordance with the terms of this Agreement. Licensee will be liable for all damages, costs, expenses, settlements, and attorneys' fees related to any claim of infringement arising as a result of (i) thru (iv) above.

8.4. Disclaimer. THE FOREGING PROVISIONS OF THIS SECTION 8 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF MICRO MAGIC, AND THE EXCLUSIVE REMEDY OF LICENSEE, IF ANY, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRIGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY ALL PRODUCTS, DESIGN AND MATERIALS AND DOCUMENTATION PROVIDED HEREUNDER.

9. LIMITATION OF LIABILITY

MICRO MAGIC'S LIABILITY ARISING OUT OF THE AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY LICENSEE TO OBTAIN THE LICENSED SOFTWARE. MICRO MAGIC WILL NOT BE LIABLE FOR ANY LOST PROFITS, FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY CLAIM OR DEMAND AGAINST LICENSEE BY ANY OTHER PARTY. IN NO EVENT WILL MICRO MAGIC BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT, EVEN IF MICRO MAGIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. LICENSEE ACKNOWLEDGES THAT THE AMOUNT PAID FOR THE LICENSED SOFTWARE REFLECTS THIS ALLOCATION OF RISK. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY IN THOSE STATES.

10. EXPORT REGULATIONS

Licensee agrees and certifies that neither the License Software, nor any other technical data received from Micro Magic, nor the direct product thereof, will be exported or re-exported outside the United States except as authorized and as permitted by the laws and regulations of the United States.

11. GOVERNMENT USE

If Licensee is acquiring any License Software on behalf of the U.S. Government, Licensee shall notify Micro Magic in writing prior to delivery of License Keys and shall obtain the Government's agreement that this is "commercial computer software" pursuant to DFAR Section 227.7202 and FAR Section 12.212, and their successor, as applicable, shall be licensed to the Government under the terms and conditions of this Agreement.

12. GENERAL PROVISIONS

12.1. Notices. Any notice, report, approval or consent required or permitted hereunder shall be in writing and will be deemed to have been duly given if delivered personally, by facsimile, or mailed by first- class, registered or certified mail, postage prepaid to the respective addresses of the parties as set forth in this Agreement. If to Micro Magic, Attention: Legal.

12.2. Choice of Law. This Agreement will be governed by and construed in accordance with the laws of the United States and the State of California excepting that body of California law governing conflicts of law.

12.3. Jurisdiction. The federal and state courts within Santa Clara County, California 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 and service of process being effected upon it by registered mail and sent to the address set forth at the beginning of the Agreement.

12.4. Assignment. This agreement may not be assigned by Licensee without the prior written consent of Micro Magic.

12.5. No Waiver. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

12.6. Independent Contractors. The relationship of Micro Magic and Licensee established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed (i) to give either party the power to direct or control the day-to-day activities of the other or (ii) to constitute the parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking.

12.7. Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.

12.8. Attorneys Fees. The prevailing party in any action to enforce the Agreement shall be entitled to recover costs and expenses including, without limitation, reasonable attorneys' fees.
12.9. Injunctive Relief. The parties agree that a material breach of this Agreement adversely affecting Micro Magic's Intellectual Property Rights in the Licensed Software, Designs and Materials would cause irreparable injury to Micro Magic for which monetary damages would not be an adequate remedy and Micro Magic shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law.

12.10. Force Majeure. Except for the obligation to make payments hereunder, nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental action, failure of suppliers, earthquake, or any other reason where failure to perform is beyond the reasonable control of > the nonperforming party.

12.11. Entire Agreement. This agreement, including all supplements, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior agreements or representations, oral or written, regarding such subject matter. Any waiver, modification or amendment of any provision of the Agreement will be effective only if in writing and signed by the parties hereto.

End User Software License Agreement 4/21/07 Confidential