LICENSE AGREEMENT THIS LICENSE AGREEMENT (this "Agreement"), made and entered into this ________, 2010 (the"Effective Date"), by and between __________, Inc., ("Licensor") and ________, with principal offices at _____________________________________________ ("Licensee"). WHEREAS the Licensee purchased the _____________ product (the “Product”) from Licensor, which includes software components of the Product and any other computer software delivered on CD ROM or otherwise (the “Software”), and includes hardware components, which are comprised of _________________________ and such other hardware components, all as detailed in the invoice attached enclosed in Exhibit A (the “Hardware”); NOW, THEREFORE it is agreed by the parties as follows: 1. License. In consideration of the payment of the license fees set forth herein, Licensor grants Licensee a nontransferable, non-assignable, non-exclusive and limited right to use the Software, without the right to sublicense, to copy the Software, for purposes of further development or modification in connection with the design and development of the Product, subject to the following terms and conditions. Licensee may use and execute the Software on the Hardware for purposes of serving the needs of Licensee's business and under the application, managed blades and other restrictions provided under the License View Configuration enclosed in Exhibit A. 2. Fees and Payments. For the use of the Software, Licensee shall pay Licensor license fee in the amount and at the terms provided in the invoice attached as Exhibit A. Licensee is and shall be solely responsible for payment of any taxes (including sales or use taxes, intangible taxes, and property taxes) resulting from Licensee's execution of this Agreement, exclusive of taxes based on Licensor's income. 3. Support. Licensee shall enter into a Maintenance Agreement with Licensor, in the form attached hereto as Exhibit B, thereunder Licensor shall support the Product. 4. Proprietary Protection and Restrictions. 4.1. Licensor shall have sole and exclusive ownership of all right, title, and interest in and to the Software and all modifications and enhancements thereof (including ownership of all trade secrets and copyrights pertaining thereto). This Agreement does not provide Licensee with title or ownership of the Software, but only a right of limited use. Licensee must and hereby undertakes to keep the Software free and clear of all claims, liens, and encumbrances. 4.2. Licensee may not use, copy, modify, or distribute the Software (electronically or otherwise), or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Licensor in writing. Licensee may not reverse assemble, reverse compile, or otherwise translate the Software. Licensee's rights may not be transferred, leased, assigned, or sublicensed except as expressly authorized by Licensor in writing. Licensee may not install the Software in any other computer system or use it at any other location without Licensor's express authorization obtained in advance and in writing. If Licensee uses, copies, or modifies the Software or if Licensee transfers possession of any copy, adaptation, transcription, or merged portion of the Software to any other party in any way not so expressly authorized by Licensor, Licensee's license granted hereunder is automatically terminated and Licensor shall have no responsibility or liability for any claim or damage stemming therefrom. 4.3. Licensee hereby authorizes Licensor to enter Licensee's premises in order to inspect the Software in any reasonable manner during regular business hours to verify Licensee's compliance with the terms hereof. 4.4. Licensee acknowledges that, in the event of Licensee's breach of any of the foregoing provisions, Licensor will not have an adequate remedy in money or damages. Licensor shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. Licensor's right to obtain injunctive relief shall not limit its right to seek further remedies. 5. Confidentiality. 5.1. Confidentiality. Licensee acknowledges and contemplates the receipt of Confidential Information of Licensor. Licensee shall maintain Licensor's Confidential Information in the strictest confidence, using the same degree of care it uses to protect its own Confidential Information, and at least a reasonable degree of care. Without limiting the foregoing, Licensee shall not disclose Confidential Information to any third party, other than to its personnel who have a "need to know", and only to the extent necessary for the execution of this Agreement. Licensee shall be responsible for compliance of its personnel with confidentiality undertakings substantially similar 2 to the provisions of this Section . Licensee shall not use the Confidential Information disclosed to it in any way whatsoever other than as necessary for the performance of this Agreement. 5.2. Without derogating from the generality of the foregoing, Licensor may issue a press release regarding the cooperation between the parties hereto, subject to the prior written consent of the other Party. 6. Indemnification. 6.1. By Licensor. If a third party claims that the Software infringes its patent or copyright, Licensor will defend Licensee against that claim at Licensor's expense and pay all damages that a court finally awards, provided that Licensee promptly notifies Licensor in writing of the claim, and allows Licensor to control, and cooperates with Licensor in, the defense or any related settlement negotiations. If such a claim is made or appears possible, Licensee agrees to permit Licensor to enable Licensee to continue to use the Software, or to modify or replace it. If Licensor determines that none of these alternatives is reasonably available, Licensee agrees to return the Software on Licensor's written request, and Licensee will then receive a credit equal to Licensee's net book value for the Software determined in accordance with generally accepted accounting principles. 6.2. Notwithstanding Section 5.2 above, Licensor shall have no obligation regarding any claim based on the following: (a) Licensee’s modification of a Product, or use of a Product in other than its operating environment as defined by Licensor; (b) the combination, operation or use of a Product with any product, data or apparatus that Licensor did not provide or approved in writing; (c) infringement by non-Licensor product alone or in combination with Products Licensor provides to Licensee as a system even if Licensor supplied the non-Licensor products; (d) Licensor's compliance with Licensee’s specifications, designs or instructions; or (e) the use of a Product in a manner neither recommended nor reasonably contemplated by Licensor. 6.3. If a third party claims that any Product Licensor provides to Licensee infringes a patent or copyright, and such claim relates to: (a) a portion of a Product that has been modified or used in other than its specified operating environment by Licensee or another third party not acting for Licensor; (b) the combination, operation, or use of a Product by or for Licensee with any product, data or apparatus that Licensor did not provide; (c) a portion of a Product that has been made or modified by Licensor in compliance with Customer’s specifications, designs or instructions; or (d) the use of that Product in a manner neither recommended nor reasonably contemplated by Licensor, then Licensee will indemnify and defend Licensor against that claim, at Licensee's expense, and pay all reasonable and necessary costs, damages and attorney fees, either stipulated in a settlement agreement acceptable to Licensor, or that a court finally awards, in the same manner and to the same extent as described in Section 5.2 above. 6.4. 6.5. PARAGRAPHS 5.2 TO 5.2 ABOVE STATE LICENSOR'S ENTIRE OBLIGATION TO LICENSEE WITH RESPECT TO ANY CLAIM OF INFRINGEMENT. By Licensee. Licensee agrees to defend, indemnify and hold Licensor harmless from and against any claim or liability arising out of Licensee's use of the Software, including without limitation, arising from the use of the Software not in compliance with the documentation or instructions provided by Licensor, or applicable laws and regulations, or in connection with the content presented by Licensee, or made available to others through the Software; provided, however, that (a) Licensor shall have given Licensee a prompt written notice of such claim, suit, demand, or action; (b) Licensor shall reasonably cooperate with Licensee in the defense and settlement thereof at Licensee's expense; and (c) Licensee shall have sole control of the defense of such claim, suit, demand, or action and the settlement or compromise thereof (unless Licensor determines that the special interests of Licensor requires representation by separate counsels), subject, however, to obtaining the prior written consent of Licensor to such settlement or compromise. 7. Limited Warranty. 7.1. The Licensor warrants to Licensee that the media on which the Software of the Product is provided will be free from defects in material and workmanship under normal use for a period of three (3) months following the date of delivery to Licensee (the “Software Warranty Period”). 7.2. The Licensor does not warrant that the operation of the software component of the Product will be uninterrupted or error free. The Licensor shall be released from all obligations under the Warranty in the event the Product has been subjected to misuse, neglect, accident or improper installation. 3 7.3. If, during the Software Warranty Period, Licensee informs the Licensor of a critical error in the Software of the Product that prevents completion of data circuits or prevents operation of the Product, the Licensor will make all reasonable efforts to correct the cause of the malfunction in a future release of the Product. Corrections released will be supplied free of charge. 7.4. 7.5. The Licensor warrants to Licensee that the Hardware components of the Product will be free of defects in material and workmanship under normal use and service for a period of twelve (12) months following the date of delivery to Licensee (the “Hardware Warranty Period”). If, during the Hardware Warranty Period, any hardware component becomes defective by reason of material or workmanship, and Licensee immediately notifies the Licensor of such defect, the Licensor, as its sole obligation and liability, shall, at its option, supply a replacement part, request return of equipment to its plant for repair, or perform the necessary repair at the equipment's location. Licensee hereby acknowledges and agrees that the Hardware provided by Licensor is produced by ________and therefore the terms of this warranty and the exercise thereof is subject to the terms and warranty granted to Licensor by _________. 7.6. The Licensor shall be released from all obligations under the Warranty in the event the Product has been subjected to misuse, neglect, accident or improper installation. 7.7. Unless otherwise instructed by Licensor, Licensor shall be the sole point of contact of Licensee in regards to the exercise of this Warranty. In any event of malfunction requiring exercise of this Warranty during the Software or Hardware Warranty Periods, respectively, Licensee shall immediately notify Licensor in writing and refrain from any attempt to repair, fix, replace or otherwise correct the Product or any part thereof, by itself or others, unless otherwise expressly instructed by Licensee. 7.8. Licensee shall not change the location of the installed Product without notifying Licensor in advance and in writing. Licensee shall comply with any instructions given by Licensor in regards to any such relocation and reinstallation. Any failure to comply with the terms of this Section 5.2 or 5.2 above shall immediately invalidate the warranty granted hereunder. 7.9. THE LIMITED WARRANTIES SET FORTH HEREIN ARE GIVEN TO LICENSEE ONLY, ARE NOT ENFORCEABLE BY ANY OTHER ENTITY OR PERSON, INCLUDING ANY CUSTOMER OF LICENSEE, AND ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY THE LICENSOR WITH RESPECT TO THE PRODUCT. 7.10. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PRODUCTS ARE NOT DESIGNED OR INTENDED TO BE USED FOR AIR TRAFFIC CONTROL, AIRCRAFT NAVIGATION, OR AIRCRAFT COMMUNICATIONS. PRODUCTS ARE NOT DESIGNED OR INTENDED TO BE USED FOR THE DESIGN, CONSTRUCTION, OPERATION, OR MAINTENANCE OF ANY NUCLEAR FACILITY. PRODUCTS ARE NOT DESIGNED OR INTENDED TO BE USED FOR MILITARY APPLICATIONS. LICENSOR DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH USES. 8. Limitation of Liability 8.1. IN NO EVENT SHALL THE LICENSOR HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES REGARDLESS OF THE FORM OF ACTION, INCLUDING BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS ARISING IN ANY WAY IN CONNECTION WITH THIS WARRANTY. 8.2. The cumulative liability of Licensor to Licensee for all claims relating to the Software and this Agreement, including any cause of action sounding in contract, tort, or strict liability, shall not exceed the total amount of all license fees paid to Licensor hereunder. This limitation of liability is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective. Licensor shall have no liability for loss of data or documentation, it being understood that you are responsible for reasonable backup precautions. 8.3. The cumulative liabilities of the Licensor and its third party suppliers are subject to the limitation of liabilities described in agreements entered into between Licensor and its third party suppliers. Third party suppliers disclaim all liability for consequential or other indirect damages. The third party supplier is an intended beneficiary of these limitations and disclaimers and the limitation of liabilities for Licensor and its suppliers are not cumulative. 4 9. Term & Termination 9.1. 9.2. Term. This Agreement shall commence on the date hereof, and shall be in full force and effect until terminated pursuant to the terms hereof. Termination for Cause. Either party may terminate this Agreement forthwith at any time upon the giving of written notice, for the following reasons: (a) This Agreement may be terminated by Licensor in case of breach of this Agreement that has not been cured within thirty (30) days following a written notice thereof from Licensor. (b) Either party may terminate this Agreement immediately upon giving written notice in the event the other party should become insolvent, or upon the filing by or against the other party of a petition in bankruptcy or reorganization, or upon the filing of a request for the appointment of a trustee, liquidator or receiver for such party, or upon an assignment for the benefit of creditors by such party, or such similar action, should said event continue for a period of sixty (60) days. 9.3. (a) Effects of Termination. Upon termination of this Agreement, the License shall terminate immediately. (b) Upon termination, Licensee shall return to Licensor the Software, Hardware, documentation, any copies thereof and any related material and confirm in writing that no other copies were left in the possession of the Licensee or any person acting on its behalf. (c) In the event of termination of this Agreement, Licensor shall no longer be required to provide the Licensee with the Annual Maintenance or Professional Services. (d) 10. Sections (Proprietary), (Confidentiality), 5.2 (Indemnification), 5.2 (Limitation of Liability), and 10 (Miscellaneous) shall survive termination and shall remain in full force and effect thereafter. Miscellaneous. 10.1. Governing Law; Jurisdiction. This Agreement shall be governed by and construed under the laws of the State of _________ exclusive of its choice of law rules. All disputes and differences arising out of or relating to this Agreement or to its interpretation, shall be settled by final and binding arbitration, by a single arbitrator. Each party shall be responsible for its own costs. All arbitration proceedings and records shall be in English. If the parties cannot agree on the identity of a single arbitrator within five (5) days of receipt of the arbitration demand, each of them shall appoint one arbitrator and the party-appointed arbitrators shall appoint a third arbitrator within five (5) days of their appointment. Notwithstanding the foregoing, Licensor shall be entitled to obtain equitable relief, such as injunctive relief, from any court of competent jurisdiction in order to protect its rights (including Intellectual Property Rights) in and to the Software, Hardware and its Confidential Information. 10.2. Assistance. The Licensee shall grant Licensor such access to Licensee's premises, all parts of the Product situated thereon, and all Licensee equipment as may be necessary or appropriate for Licensor to perform its obligations under this Agreement. The Licensee shall furnish and make available such Licensee equipment as required for installation, operation or maintenance of the Product. Licensee will further grant Licensor such access to information by Licensee's personnel and third party network and other suppliers of Licensee as may be necessary to enable Licensor to perform its obligations under this Agreement. 10.3. 10.4. Licensee's Responsibility. For avoidance of doubt, Licensee shall be responsible for establishing reasonable backups, accuracy checks, and security precautions to guard against possible malfunction of the Product, loss of data from the Product, or unauthorized access to the Product. Force Majeure. Neither party shall be liable for any costs or damages due to nonperformance under this Agreement, arising out of any cause or event not within the reasonable control of such party and without its fault or negligence, such as an act of God, act of war, reason of fire, floods, or inability to obtain necessary materials or services from suppliers if no equipment sources for such suppliers or services are readily available. 10.5. Assignment. Licensee may not assign this Agreement, and any rights or obligation hereunder, in whole or in part without the prior written consent of Licensor, and any attempt by the Licensee to so assign this 5 Agreement shall be deemed null and void. Licensor may transfer its rights and obligations hereunder to a third party that acquires all or substantially all of the assets or securities or Licensor. 10.6. 10.7. Independent Contractors. The parties hereto are and shall remain independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture, or agency relationship between the parties. Neither party shall have the right to obligate or bind the other party in any manner to any third party. No Waiver. Neither party shall, by mere lapse of time, without giving notice thereof, be deemed to have waived any breach by the other party of any terms or provisions of this Agreement. The waiver by either party of any such breach shall not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach. THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF LICENSOR'S OBLIGATIONS AND RESPONSIBILITIES TO LICENSEE AND SUPERSEDES ANY OTHER PROPOSAL, REPRESENTATION, OR OTHER COMMUNICATION BY OR ON BEHALF OF LICENSOR RELATING TO THE SUBJECT MATTER HEREOF. Accepted and Approved: _____________________________ Licensor By: _________________ Title: ________________ ___________________________ Licensee By: _______________ Title: _______________ Exhibit A