MIBEXPLORER LICENSE AGREEMENT ============================= This MIB Explorer License Agreement (the "Agreement") is made as of this date of download, (the "Effective Date"), by and between Frank Fock ("Licensor"), Maximilian-Kolbe- Str. 10, 73257 Koengen, Germany and the user and his/her organization ("Licensee"). 1. DEFINITIONS 1.1 Licensed Software means Licensor's MIBExplorer computer software and documentation thereof, as specified in Exhibit A, including bug fixes and updates thereto provided to Licensee in connection with this Agreement. 1.2 Intellectual Property Rights means patent rights, copyright rights, trade secret rights, and any other intellectual property rights. 1.3 Binary Code means the portion of the Licensed Software, which is licensed, to Licensee in machine executable binary form, as specified in Exhibit A. 2. LICENSE GRANTS If you obtained the Software from Licensor or one of its authorized licensees and as long as you comply with the terms of this agreement, Licensor grants you a non-exclusive license to use the Software in the manner and for the purposes described in the Documentation, as further set forth below. 2.1 General Use. You may install and use one copy of the Software on up to the Permitted Number of your compatible Computers; or 2.2 Server Deployment. You may install the Permitted Number of copies of the Software on the Permitted Number of Computer file server(s) within your Internal Network for the purpose of downloading and installing the Software on up to the Permitted Number of Computers within the same Internal Network; or 2.3 Server Use. You may install the Permitted Number of copies of the Software on the Permitted Number of Computer file server(s) within your Internal Network only for use of the Software initiated by an individual through commands, data or instructions (e.g., scripts) from a Computer within the same Internal Network. The total number of users (not the concurrent number of users) permitted to use the Software on such Computer file server(s) may not exceed the Permitted Number. Other network use is only permitted if using the licensed software through its HTTP interface only, including, but not limited to use of the Software, either directly or through commands, data or instructions, (i) from or to a Computer not part of your Internal Network, (ii) for enabling Internet or web hosted services, (iii) by any user not licensed to use the Software under a valid license from Licensor, (iv) as a component of a system, workflow or service accessible by more than the Permitted Number of users, or (v) for operations not initiated by an individual user (e.g., high-volume automated server processing of wire feed content); and 2.4 Binary Code User License. Subject to the terms and conditions of this Agreement, and upon payment by Licensee to Licensor of the User license fee set forth in Section 6.1, Licensor grants Licensee a non-exclusive, non-transfer- able license to use the Binary Code on one computer concurrently according to permitted Uses set forth in sections 2.1 - 2.3. Licensee agrees to comply with all reasonable monitoring requirements imposed by Licensor to ensure compliance with such limit on the maximum number of concurrent users. 2.5 Binary Code Site License. Subject to the terms and conditions of this Agreement, and upon payment by LICENSEE to LICENSOR of the one-time license Site license fee set forth in Section 6.1, LICENSOR grants LICENSEE a perpetual (subject to termination rights in Section 6), non-exclusive, non-transferable license to use the Binary Code of the Software Product for internal use only. Any employees or telecommuters directly reporting to a manager employed by LICENSSEE at the licensed Site may use the Binary Code on any computer system. LICENSEE agrees to comply with all reasonable monitoring requirements imposed by LICENSOR to ensure compliance with such limit on the Site bound maximum number of users. 2.6 Portable or Home Computer Use. The primary user of the Computer on which the Software is installed may install a second copy of the Software for his or her exclusive use on either a portable Computer or a Computer located at his or her home, provided the Software on the portable or home Computer is not used at the same time as the Software on the primary Computer. 2.7 Backup Copy. You may make a reasonable number of backup copies of the Software, provided your backup copies are not installed or used for other than archival purposes. 2.8 Other Restrictions in License Grants. Licensee may not: (i) disassemble, decompile or reverse engineer the Binary Code nor permit any third party to do so; (ii) copy the Licensed Software, except as necessary to use the Licensed Software in accordance with the license granted under Section 2.1 to 2.6, and except for a reasonable number of backup copies; or (iii) use the Licensed Software in any manner to provide testing or other computer services to third parties. 2.9 No Trademark License. Licensee has no right or license to use any trademark of Licensor or its suppliers during or after the term of this Agreement. 2.10 Proprietary Notices. The Licensed Software is copyrighted. All proprietary notices incorporated in, marked on, or affixed to the Licensed Software by Licensor or its suppliers shall be duplicated by Licensee on all copies, in whole or in part, in any form and not altered, removed, or obliterated. 2.11 Reservation. Licensor and its suppliers reserve all rights and licenses to the Licensed Software not expressly granted to Licensee under this Agreement. 3. DELIVERY OF LICENSED SOFTWARE Licensor will deliver to Licensee a copy of the Licensed Software via electronic download upon acceptance of this agreement. 4. WARRANTIES 4.1 Limited Warranty. Licensor warrants that during the 90 day period following delivery of the Licensed Software to Licensee, the Licensed Software will operate substantially in accordance with its specifications set forth in users' documentation in all material respects. In the event the Licensed Software fails to conform to such warranty during the warranty period, as Licensee's sole and exclusive remedy, Licensor will make diligent, reasonable efforts to provide Licensee with work-around solutions, error corrections and bug fixes upon receipt of written notice of non-compliance. 4.2 Warranty Exclusion and Disclaimer. THE WARRANTY WITH RESPECT TO THE LICENSED SOFTWARE WILL BE VOID AND OF NO EFFECT IF LICENSEE MODIFIES THE SOURCE CODE OR IF THE LICENSES GRANTED IN SECTION 2, ABOVE, WERE GRANTED WITH A ZERO LICENSE FEE. THE WARRANTIES SET FORTH IN SECTION 4.1 ARE IN LIEU OF, AND LICENSOR EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, WRITTEN AND ORAL, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON -INFRINGEMENT. LICENSOR DOES NOT WARRANT THAT OPERATION OF THE LICENSED SOFTWARE WILL BE ERROR FREE. 5. MAINTENANCE AND UPDATES 5.1 Maintenance. Licensor will, at no additional charge to Licensee, provide Licensee with reasonable technical support for the period of six months (including the ninety-day warranty period) via e-mail during Licensor's normal business hours, provided that Licensee payed a non-zero license fee for the licenses granted in section 2, above. 5.2 Updates. If and when Licensor develops updates to the Licensed Software from time to time, Licensor, at its sole discretion, may, but has no obligation to, provide Licensee with separately priced updates for the Licensed Software at the request of Licensee. All such updates will be considered "Licensed Software" and subject to all terms and conditions of this Agreement. 6. LICENSE FEE 6.1 License Fee. In consideration of the licenses granted in Section 2, above, Licensee shall pay Licensor a non -refundable license fee in accordance with Licensor's then current price list within thirty (30) days after the Effective Date. 6.2 Update Fee. In the event Licensor provides Licensee with an update to the Licensed Software in accordance with Section 5.2, Licensee shall pay Licensor the then-current Licensor standard update fee within thirty (30) days after receipt of such update. 6.3 Taxes and Duties. In addition to the license and update fees set forth above, Licensee shall pay all sales, use, or other taxes and fees imposed as a result of payment of the fees set forth above, if any, other than taxes measured by Licensor 's net income. 7. INTELLECTUAL PROPERTY RIGHTS 7.1 Title. All right, title and interest in and to the Licensed Software, and all Intellectual Property Rights embodied therein shall at all times remain with Licensor or its suppliers, as applicable. 7.2 Confidential Information. Licensee acknowledges and agrees that the Licensed Software contains confidential, proprietary information and trade secrets of Licensor. For the longer of: (i) a period of five (5) years after the date of disclosure or (ii) the expiration or termination of this Agreement, Licensee shall not disclose or make available any portion of the Licensed Software or any information derived from the Licensed Software to any person or entity except to those of Licensee's employees for whom access is necessary in order to perform their jobs in accordance with this Agreement. The standard of care Licensee must exercise to meet these obligations is the standard it exercises with respect to its own confidential information of a similar nature, but in no event less than due care. This obligation does not apply to information: (a) known by Licensee prior to its receipt from Licensor and not subject to restriction on disclosure; (b) rightfully received by Licensee from a third party without restriction on disclosure; or (c) publicly available other than as a result of any act or omission of Licensee. 8. LIMITATION OF LIABILITY IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF LICENSOR IN CONNECTION WITH THIS AGREEMENT FOR ALL CAUSES OF ACTION OF ANY KIND, INCLUDING THOSE BASED UPON CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), EXCEED THE LICENSE FEES RECEIVED BY LICENSOR FROM LICENSEE. IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE LIABLE FOR LOSS OF USE, DATA, OR PROFITS, BUSINESS INTERRUPTION OR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), ARISING IN ANY WAY OUT OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. 9. TERM AND TERMINATION 9.1 Term. The term of this Agreement shall be for an initial period of two (2) years from its Effective Date of the Agreement, unless earlier terminated or cancelled in accordance with the provisions of this Agreement. Thereafter, this Agreement shall automatically renew for consecutive one (1) year periods on the anniversary of the Effective Date unless either party shall have given the other no less than ninety (90) days written notice of termination. 9.2 Termination. 9.2.1 Material Breach. Either party may terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure that breach within thirty (30) days after receiving written notice of the breach. Notwithstanding the foregoing, Licensor may terminate this Agreement effective immediately upon written notice to Licensee without any cure period in the event of breach of confidentiality obligation herein. 9.2.2 Financial Difficulties. Either party may terminate this Agreement effective immediately upon written notice to the other party if the other party files a voluntary petition in bankruptcy or otherwise seeks protection under any law for the protection of debtors; has a proceeding instituted against it under any provision of the bankruptcy laws which is not dismissed within sixty (60) days; is adjudged to be bankrupt; has a court assume jurisdiction of its assets under a reorganization act; has a trustee or receiver appointed by a court for all or a substantial portion of its assets; becomes insolvent, suspends or ceases to do business; makes an assignment of all or a substantial portion of its assets for the benefit of its creditors; or admits in writing its inability to pay its debts as they become due. 9.3 Effect of Termination/Expiration. Upon termination or expiration of this Agreement: (i) the rights and licenses granted to Licensee pursuant to this Agreement automatically terminate; (ii) Licensee shall, within thirty (30) days, ship to Licensor or destroy (including the purging from any system or storage media) all items and information in Licensee's possession that are confidential or proprietary to Licensor or its suppliers, including but not limited to all Licensed Software and all copies thereof, if any, and an officer of Licensee shall certify in writing to Licensor that all such confidential or proprietary items and information have been returned to Licensor or destroyed; and (iii) all outstanding invoices for amounts owed to Licensor by Licensee shall automatically accelerate and become due and payable on the effective date of termination. 9.4 Survival. The provisions of Sections 2.10, 4.2, 7, 8, 9.3, 10.1, 10.5, and 10.8 shall survive the expiration, cancellation, or termination of this Agreement. 10. GENERAL PROVISIONS 10.1 Governing Law. This Agreement shall be governed by the internal laws of Germany. 10.2 Assignment. Licensee shall not assign this Agreement or any right hereunder, or delegate any obligation created under this Agreement to any third party without prior written consent of Licensor. Licensor, however, may assign this Agreement to any person or entity with which it has merged or which has otherwise succeeded to all or substantially all of the business and assets of Licensor, and which has assumed in writing or by operation of law its obligations under this Agreement. Any attempted assignment or delegation without the required written consent shall be null and void. 10.3 Modification. No modification to this Agreement nor any waiver of any rights shall be effective unless consented to in writing and the waiver of any breach or default shall not constitute a waiver of any other right or of any subsequent breach or default. 10.4 Force Majeure. Neither Licensor nor any of its suppliers shall be liable for any loss, expense, or damage caused by delays or failures in performance resulting from acts of God, supplier delay, or any other cause beyond the reasonable control of Licensor or its suppliers. 10.5 Attorneys' Fees. In the event of any dispute resolution proceeding between the parties, the prevailing party shall be entitled to recover its costs and reasonable attorneys' fees. A "prevailing party" shall mean a party who receives all or substantially all of the relief sought by such party. 10.6 Severability. If any provision of this Agreement is ruled unenforceable, it shall be enforced to the extent permissible, the parties shall negotiate a substitute valid provision which most nearly effects the parties' original intent, and the remainder of the Agreement shall remain in effect. 10.7 Independent Contractor. The parties are each independent contractors and not joint venturers, partners, agents, or representatives of the other. Neither party has any right to create any obligation on the part of the other party. 10.8 Equitable Relief. Licensee acknowledges that any breach of its obligations under this Agreement with respect to the intellectual property rights or confidential information of Licensor will cause Licensor irreparable injury for which there are inadequate remedies at law, and therefore, Licensor will be entitled to equitable relief in addition to all other remedies provided by this Agreement or available at law. 10.9 Notice. All notices and requests required or authorized hereunder, shall be given in writing either by personal delivery to the party to whom notice is given, or by registered or certified airmail, postage prepaid, return receipt requested. The date upon which any such notice is so personally delivered, or if the notice is given by registered or certified airmail, the date upon which it is received as set forth on the returned receipt, shall be deemed to be the date of such notice, irrespective of the date appearing therein. If to Licensor : Frank Fock Maximilian-Kolbe-Str. 10 73257 Koengen Germany Phone: +49 7024 8688230 Fax: +49 7024 8688231 If to Licensee: The name and address on Licensee's Purchase order. The address of the parties may be changed by notice given in accordance with this section. 10.11 Entire Agreement. This Agreement constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof. All previous and contemporaneous discussions and oral and written agreements with respect to this subject matter are superseded by this Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives. EXHIBIT A Licensed Software MIBExplorer a. Java Byte Code - Java SE 6 or later language executable