Etnus, Inc., Software License Agreement IMPORTANT: READ CAREFULLY DO NOT INSTALL OR USE THIS PRODUCT (THE "SOFTWARE") UNTIL YOU HAVE CAREFULLY READ THIS AGREEMENT, WHICH PROVIDES TERMS AND CONDITIONS FOR ITS USE. INSTALLING THE SOFTWARE INDICATES THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU SHOULD CANCEL THIS TRANSACTION NOW, RETURN THE LICENSE KEY AND ALL DOCUMENTATION, AND PROOF OF PAYMENT, TO ETNUS, AND REMOVE THE LICENSE KEY FROM THE LICENSED SERVER FOR A FULL REFUND WITHIN THIRTY (30) DAYS OF FIRST ACQUIRING THE LICENSE KEY. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS LICENSE AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF ETNUS SHALL BE CONSTRUED AS AN INFERENCE TO THE CONTRARY. IF YOU HAVE ORDERED THIS SOFTWARE, ETNUS' ACCEPTANCE IS EXPRESSLY CONDITIONAL ON YOUR ASSENT TO THESE TERMS. 1 Definitions. In this License, the following terms shall have the following meanings: 1.1 "License Key(s)" means the code(s) transferred from ETNUS to Licensee allowing Licensee to use the Software and establishing the Licensed Computer(s), Licensed Platform(s), Processor Maximum and Licensed User(s). 1.2 "Derivative" means any computer program that may be developed containing all or any part of the Software (and any copies thereof), regardless of the form of code or intended use. 1.3 "Documentation" means ETNUS' published Software manuals and any written or printed technical material generally provided by ETNUS with the Software to explain its operations and aid in its use. 1.4 "ETNUS" means Etnus, Inc., a Delaware corporation with an office at 111 Speen Street, Framingham, MA 01701-2090. 1.5 "License" means this End-User License Agreement and the rights and obligations it creates under all applicable laws. 1.6 "Licensee" means the individual or entity licensing this copy of the Software and includes those persons in Licensee's immediate organization such as business associates, partners, and employees who are authorized to use this copy on the Licensed Computer(s) under the terms of this License. 1.7 "Licensed Computer(s)" shall mean the server or servers for which the Software is licensed for use according to the License Key(s). 1.8 "Licensed Platform(s)" shall mean the specific architecture or architectures of Licensed Computer(s) authorized under this Agreement and established for use according to the License Key(s). 1.9 "Licensed User(s)" shall mean the maximum number of persons in Licensee's immediate organization who are licensed concurrently to operate the Software at any one time hereunder as established by the License Key(s). 1.10 "Processor Maximum" shall mean the maximum number of processors per Licensed User Authorized under this Agreement as set forth according to the License Key(s). 1.11 "Software" means, collectively, the version(s) of the enclosed ETNUS software program(s) in object code format, together with the Documentation, including updates, modifications or new releases of such software programs and Documentation that may be provided by ETNUS to Licensee from time to time, regardless of the form in which Licensee may subsequently use the Software. 2. Grant of License. Subject to the terms and conditions of this License, ETNUS grants to Licensee a nonsublicensable, nonexclusive, nontransferable, perpetual license (subject to Section 7 below) to use the Software internally on the Licensed Computer(s) and by the Licensed User(s). 3. Ownership of Software. As between the parties, ETNUS and its suppliers retain title to, ownership of and all proprietary rights with respect to the Software, and all copies and portions thereof, whether or not incorporated into or with other software. The License does not constitute a sale of the Software or any portion or copy of it. Licensee acknowledges and agrees that the Software and the Documentation are ETNUS' proprietary products protected by U. S. Copyright and other laws, international treaty provisions and applicable laws, including copyright and intellectual property laws of the country in which the Software is being used. 4. Possession and Copying of Software. Licensee agrees that the Software will be installed or used on only the Licensed Computer(s) and Licensed Platforms by the Licensed User(s) and that Licensee shall not exceed the Processor Maximum. Licensee agrees to make no more than one (1) copy of the Software solely for backup or archival purposes, which (with the original) must be kept in Licensee's possession or control at all times. Licensee agrees to place a label on the outside of any such separate and independent backup medium, showing the program name, the version number and the ETNUS copyright notice, restricted rights legend, and trademark notices, in the same form as they appear on the original licensed copy. 5. Transfer or Reproduction of Software. 5.1 The Software may only be used on the Licensed Computer(s). Licensee may, subject to any applicable export requirements, change the Licensed Computer(s) which are authorized for the use of the Software to other computer(s) within Licensee's immediate organization after giving ETNUS prior notice of the CPU serial number(s) and location(s) of such computer(s) and making payment to ETNUS of the then-applicable fees. If Licensee changes the computer(s) on which Licensee is using the Software, Licensee may no longer use the Software on the computers formerly used and the new computer(s) shall be deemed to be Licensed Computer(s). 5.2 Licensee may not transfer any copy of the Software outside Licensee's immediate organization, on either a temporary or a permanent basis without obtaining the prior written approval of ETNUS. If the License transfer is approved, all copies of the Software, including the original, must be transferred to such transferee. ETNUS has the immediate right to terminate this License, to trace serial numbers, and to take any appropriate legal action in the event any of these conditions are violated. 5.3 Except as expressly provided in Sections 2 and 4 above, copying of the Software or any portion thereof, including Software that has been modified or incorporated into or with other software is expressly forbidden. Licensee shall not (and shall not allow any third party to) (i) decompile, disassemble, discover any source code or underlying ideas or algorithms or file formats or programming or interoperability interfaces of the Software or of any files contained in or generated using the Software by any means whatsoever, (ii) remove any product identification, copyright or other notices of the Software, (iii) provide, lease, lend or use the Software for timesharing or service bureau purposes or otherwise use or allow others to use the Software to or for the benefit of third parties, or (iv) load or use any portion of the Software (whether or not modified or incorporated into or with other software) on or with any machine or system other than the applicable Licensed Computer(s). 6. License Fees. License fees are set forth in the Product Order(s) and/or attachments (the "License Fees") and are exclusive of shipping, taxes, duties and the like, which shall be paid by Licensee. If not otherwise specified, applicable License Fees are due and payable within thirty (30) days of delivery or download of the Software, f.o.b. ETNUS. Non-payment of License Fees shall be deemed a material breach of this License. 7. Termination of License. The License shall be deemed effective from the date Licensee downloads or receives the Software and accepts the terms herein (the "Effective Date"), and shall be effective only so long as Licensee uses or possesses the Software, unless the License is terminated by ETNUS for a violation of its terms or otherwise pursuant to the terms of this License. The License will terminate immediately if: (i) Licensee fails to cure any material breach of this License within thirty (30) days of receiving notice of such breach from ETNUS (or immediately upon notice in the case of a breach of Sections 5 or 11 of this License); (ii) Licensee becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding; or (iii) Licensee ceases to do business or otherwise terminates its business operations. Upon termination, the license grants under Section 2 shall terminate and Licensee shall immediately cease all use of the Software and return or destroy all copies of the Software and all portions thereof (whether or not modified or incorporated with or into other software) and, if requested, so certify to ETNUS in writing. Except for provisions that survive according to their express terms and Sections 3, 5.2, 5.3, 6, 7, 8.5, 8.6, 9, 10, 11, and 12 (as applicable), the rights and obligations of the parties shall cease immediately upon termination of this License.. Termination is not an exclusive remedy and all other remedies will be available whether or not the License is terminated. 8. Limited Warranty and Disclaimer. 8.1 Software. Subject to the conditions and limitations on liability stated herein, ETNUS warrants to the original Licensee only, that for a period of thirty (30) days from the Effective Date (the "Warranty Period"), Software will materially conform to ETNUS' then current Documentation for such Software. This warranty covers only problems reported to ETNUS during the Warranty Period. 8.2 Media. For the Warranty Period, ETNUS warrants to the original Licensee only, that the media containing the Software (but not the Software itself) is free from physical defects. 8.3 Documentation. In the event of a descriptive error in the Documentation, ETNUS shall correct such an error without charge by providing addenda or substitute pages. ETNUS need not treat such errors in the Documentation as errors in the Software, but may issue corrections to the Documentation instead. 8.4 Exceptions. Notwithstanding the above, the limited warranty under this Section shall not apply to any Software that has been abused, misused, damaged in transport, altered, neglected or subjected to unauthorized repair or installation as determined by ETNUS. 8.5 Remedy. ETNUS' sole and exclusive liability and Licensee's sole and exclusive remedy for a breach of the limited warranty under this Section shall be, at ETNUS' sole option, to repair or replace the defective Software or refund the License Fees paid for the Software. In the event that a reported defect is determined by ETNUS not to be a defect in the Software, Media or Documentation, or the defect is the result of unauthorized modifications or improper use of the Software, Licensee shall be subject to charges for consulting fees at then- current rates plus expenses incurred by ETNUS in responding to any defect report. 8.6 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE SOFTWARE IS PROVIDED "AS IS" AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ETNUS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE, MEDIA AND ANY OTHER SUBJECT MATTER UNDER THIS LICENSE, INCLUDING ANY WARRANTY OF NONINFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ETNUS DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SOFTWARE OR DOCUMENTATION IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. 9. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, ETNUS WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (i) ANY AMOUNTS IN EXCESS OF THE LICENSE FEES PAID TO ETNUS HEREUNDER FOR THE SOFTWARE OR (ii) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOST OR INACCURATE DATA OR (iii) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES. ETNUS SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND ITS REASONABLE CONTROL. 10. Government Matters. Licensee agrees to comply with the U.S. Foreign Corrupt Practices Act (regarding among other things, payments to government officials) and all export laws, restrictions, national security controls and regulations of the United States or other applicable foreign agency or authority, and not to export or re-export, or allow the export or re- export of the Software or any copy or direct product thereof in violation of any such restrictions, laws or regulations, or to any group D:1 or E:2 country (or any national of such country) specified in the then current Supplement No. 1 to Part 740, or, in violation of the embargo provisions in Part 746, of the U.S. Export Administration Regulations (or any successor regulations or supplement), except in compliance with and with all licenses and approvals required under applicable export laws and regulations, including without limitation, those of the U.S. Department of Commerce. The Software is a "commercial item" as that term is defined in 48 C.F.R. 2.101 (2/9/98), consisting of "commercial computer software" and "commercial computer software documentation", as such terms are used in 48 C.F.R. 12.212 (2/9/98). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (1/22/98), all U.S. Government users, including contractors and subcontractors under any U.S. Government contract, acquire the Software with only those rights set forth in this License. If Licensee is acquiring this License under a United States government contract, Licensee agrees to include all necessary and applicable restricted rights legends on the Software and the Documentation to protect ETNUS' proprietary rights under the regulations cited above. Licensee agrees always to include such legends whenever the Software or Documentation is, or is deemed to be, deliverable under that contract. 11. Confidentiality. Licensee agrees and acknowledges that the Software contains confidential and proprietary technology, ideas, know-how, algorithms and other information ("Confidential Information"). Except as expressly allowed by this License, Licensee will not use, disclose or allow any third party to have access to any Confidential Information except to the extent Licensee can document that such information is generally available (through no action or inaction of Licensee) for use and disclosure by the public without any charge or license. Licensee recognizes and agrees that there is no adequate remedy at law for a breach of this Section 11, that such a breach would irreparably harm ETNUS and that ETNUS is entitled to equitable relief (including, without limitations, injunctions) with respect to any such breach or potential breach in addition to any other remedies. 12. Miscellaneous. 12.1 Except for Licensee, no other person or entity may rely on any rights, including but not limited to rights under the warranty provisions, granted in this License. Neither this License nor any rights, licenses or obligations hereunder are assignable or transferable by Licensee without the prior written consent of ETNUS and any attempt to do so shall be void. 12.2 Any notice, report, approval or consent hereunder shall be in writing. 12.3 No failure to exercise, and no delay in exercising, on the part of either party, any privilege, any power or any rights hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. 12.4 If any provision of this License shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this License shall otherwise remain in full force and effect and enforceable. 12.5 This License shall be deemed to have been made in, and shall be construed pursuant to the laws of the Commonwealth of Massachusetts and the United States without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. 12.6 The parties agree that a material breach of this License adversely affecting ETNUS' proprietary rights in the Software would cause irreparable injury to ETNUS for which monetary damages would not be an adequate remedy and that ETNUS shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law. 12.7 Any waivers or amendments shall be effective only if made in writing by non-pre-printed agreements clearly understood by both parties to be an amendment or waiver and signed by a representative of the respective parties authorized to bind the parties. Both parties agree that this License is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this License. 12.8 Each party recognizes and agrees that the warranty disclaimers and liability and remedy limitations in this License are material bargained for bases of this License and that they have been taken into account and reflected in determining the consideration to be given by each party under this License and in the decision by each party to enter into this License. 12.9 Notwithstanding any provision hereof, for all purposes of this License each party shall be and act as an independent contractor and not as partner, joint venturer, or agent of the other and shall not bind nor attempt to bind the other to any contract. SLA #020499