License Agreement Himalaya Software's License Agreement Copyright (c) 1993,94, Himalaya Software, All Rights Reserved ARTICLE 1: DEFINITIONS __________________________________________________________________ AGREEMENT THIS AGREEMENT made and entered into as of the 24th day of January, 1994, by and between HIMALAYA SOFTWARE, having its office at Pijnacker, the Netherlands, of the one part, and the CUSTOMER (hereinafter called Licensee), of the other part; WHEREAS Himalaya Software has developed and has acquired in the field of computer software an extensive knowledge and experience therein; WHEREAS Licensee is interested in acquiring of the right to use the software developed by Himalaya Software and is desirous of obtaining the assistance related thereto from Himalaya Software; WHEREAS Himalaya Software is prepared to grant such assistance and the right to use on the terms and conditions hereinafter set forth; NOW IT IS HEREBY AGREED AS FOLLOWS: ARTICLE 1: DEFINITIONS In this agreement the following expressions shall have the meaning set out thereafter, to wit: 1.1 Program : the Himalaya Software software product(s) the Licensee has purchased or obtained for evaluation, including both the software and the associated documentation and other materials. 1.2 ShareWare Copy : a copy of the Program distributed by Himalaya Software or by its authorised agents for evaluation purposes and which is described as a ShareWare copy in the Program's sign-on messages. 1.3 Registered Copy : a copy of the Program purchased from Himalaya Software or from a dealer and which is not described as a ShareWare Copy in the Program's sign-on messages. __________________________________________________________________ Himalaya Software's License Agreement 1 ARTICLE 2: GRANT OF LICENSE __________________________________________________________________ ARTICLE 2: GRANT OF LICENSE 2.1 Himalaya Software hereby grants to Licensee, upon and subject to the provisions of this agreement a non-exclusive, non-transferable right and license (without the right to grant sub-licenses thereunder) to use Himalaya Software's present and future knowledge and experience related to the Program. 2.2 With respect to ShareWare Copy of the Program Licensee may use such copy for an evaluation period of up to 21 days after installation of the Program on one or more computers in order to determine whether the Program meets the needs of Licensee before purchasing it. Once the evaluation period has ended, the Licensee either agrees to purchase a Registered Copy of the Program or to stop using the ShareWare Copy. If the Licensee has ordered a Registered Copy of the Program from Himalaya Software or from a dealer, Licensee may continue to use the ShareWare Copy until the receipt of the Registered Copy. 2.3 Licensee is entitled to make copies of the ShareWare Copy of the Program to give to third parties, provided the Licensee includes all of the files originally received with the ShareWare Copy. When the Licensee gives a ShareWare Copy of the Program to a third party, the Licensee undertakes to inform such third party that their copy is to be used for a time limited evaluation period and that they must purchase a Registered Copy if they continue to use the Program once the evaluation period has ended. The Licensee is not entitled to sell or to distribute ShareWare Copies of the Program to third parties for any kind of remuneration or fee. 2.4 During the evaluation period Licensee is entitled to use it on as many computers as are required to perform the evaluation. __________________________________________________________________ 2 (c) 1993,94, Himalaya Software ARTICLE 3: USE OF THE PROGRAM __________________________________________________________________ ARTICLE 3: USE OF THE PROGRAM 3.1 After purchasing the Registered Copy of the Program Licensee shall not install or use any individual copy of the Program on more than one computer at a time. In case a computer at work, a computer at home and a portable computer are used primarily by the same individual and there exists no possibility that the computers are used simultaneously except while the Licensee is actively transferring files between them, Licensee will be entitled to install an individual copy simultaneously on the said computers. 3.2 If Licensee has purchased additional licenses for the Program Licensee undertakes not to install or use them on more computers than the number included in this agreement or shown on the invoices, the sign-on screen or other documents from Himalaya Software. 3.3 Licensee is entitled to make copies of the purchased Registered Copies of the Program, which are required for normal backup purposes. 3.4 Licensee shall not make any other copies of the software, the manual(s) or any part of them, or sell or give any copies to third parties without our prior permission in writing. 3.5 Licensee is not permitted to undertake actions to reverse- engineer, decompile, disassemble, or otherwise modify the Program. ARTICLE 4: WARRANTY Himalaya Software warrants that it is the sole owner of the software and that it has full power and authority to grant a license for the use of the Program. The warranty to be rendered by Himalaya Software with respect to Registered Copies of the Program is limited to the following and therefor does not apply to ShareWare Copies of the Program. 4.1 Himalaya Software pledges that the disks and manuals will arrive free of physical defects which interfere with normal use. If Licensee encounters such defect and reports it to Himalaya Software within 90 days after the purchase of the Program Himalaya Software will replace the defective item(s) at no charge to Licensee as long as the defect was not caused by misuse or abuse. __________________________________________________________________ Himalaya Software's License Agreement 3 ARTICLE 5: DISCLAIMERS AND LIMITATIONS __________________________________________________________________ 4.2 Himalaya Software will use its best efforts to correct errors and/or bugs which may be encountered by the Licensee. If Himalaya Software issues a maintenance release for the Program which includes a correction for an error which the Licensee reported, Himalaya Software will send the Licensee a copy of that maintenance release at no charge if Licensee does so request. The undertaking of Himalaya Software according to the above will apply only to maintenance releases and not to new major releases or new versions of the Program. 4.3 If Licensee is dissatisfied with any product bought from Himalaya Software under this agreement, Licensee is entitled to return such product at any time within a period of 90 days after the purchase of the product. Himalaya Software will refund Licensee a full refund. Such refund will be based upon the price paid by the Licensee for the relevant product less shipping or forwarding costs. Before returning the product with which Licensee is dissatisfied Licensee has to give prior warning to Himalaya Software. The aforementioned guarantee does not apply to additional licenses exceeding 10 computers or to purchases of more than 10 individual copies at one time. ARTICLE 5: DISCLAIMERS AND LIMITATIONS 5.1 ShareWare Copies of the Program are provided to the Licensee `as-is' and without any warranty of any kind. For that reason Licensee will not pay any remuneration to Himalaya Software during the trial use license. 5.2 Himalaya Software disclaims any and all other warranties (other than those stated in article 4), express or implied, oral or in writing, including any implied warranties of merchantability or fitness for a particular purpose and/or use. 5.3 Himalaya Software shall in no event be liable for any incidental, consequential or punitive damages whatsoever arising out of use of the Program or the relationship with Licensee. __________________________________________________________________ 4 (c) 1993,94, Himalaya Software ARTICLE 8: DISPUTES; APPLICABLE LAWS __________________________________________________________________ ARTICLE 6: INFRINGEMENT ACTIONS 6.1 In the event that any action, proceeding or claim of any kind or nature is instituted against Licensee because of operations under the rights and licenses herein granted, the defence thereof shall be Himalaya Software's sole responsibility and for Himalaya Software's account. Licensee shall promptly notify Himalaya Software in writing, in reasonable detail of the date and nature of such action, proceeding or claim. 6.2 In the event that Himalaya Software shall fail, within a period of sixty (60) days after receiving written notice from Licensee that it wishes to have steps taken against such action, proceeding or claim, Licensee shall have the right to commence such action or proceeding at its own expense and for its own benefit. 6.3 Himalaya Software and Licensee agree to cooperate in good faith and each agrees to use its best efforts to assist the other in the defence of any action, proceedings or claim described in paragraph 1 or 2 of this article. ARTICLE 7: OTHER PARTIES 7.1 Licensee agrees not to transfer or assign any of the rights accruing to it by virtue of this agreement, without the prior approval in writing of Himalaya Software. 7.2 The parties hereto warrant that the obligations undertaken by them shall not be frustrated, hindered or otherwise detrimentally affected by persons, bodies or instances related to them as concern-related entity, or as an employee or agent of parties or of concern-related entities to parties. ARTICLE 8: DISPUTES; APPLICABLE LAWS 8.1 If any party has a dispute arising from or in connection with this agreement, it shall be decided with reference to the laws of the country or state of the other party. 8.2 All disputes as meant in paragraph 1 above shall be resolved by arbitration by and under the rules of arbitration of the International Chamber of Commerce and will take place in the country or state of the disputed party. __________________________________________________________________ Himalaya Software's License Agreement 5