JASMI LICENSE AGREEMENT ======================= THIS LICENSE AGREEMENT (this "Agreement") is made effective as of the date the product is installed by and between (i) Frank Fock, the author of JASMI ("LICENSOR") and the party executing this Agreement as Licensee ("LICENSEE"). 1. DEFINITIONS. 1.1 Licensed Software means Frank Fock's JASMI 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. 1.4 Source Code means the portion of the Licensed Software, which is licensed, to LICENSEE in human-readable form, as specified in Exhibit A. 2. GRANT OF LICENSE. 2.1 Source Code Use License. Subject to the terms and conditions of this Agreement, and upon payment by LICENSEE to LICENSOR of the license fees set forth in Addendum A, LICENSOR grants LICENSEE a non-exclusive, non-transferable license to use, modify, or have modified by a third party contractor subject to a confidentiality agreement no less restrictive than this Agreement, the Source Code for internal use only. LICENSEE may use the Source Code on more than one CPU. 2.2 Binary Code Use License. Subject to the terms and conditions of this Agreement, and upon payment by LICENSEE to LICENSOR of the license fees set forth in Addendum A, LICENSOR grants LICENSEE a non-exclusive, non-transferable license to use the Binary Code for (a) internal use only or (b) for embedding in another software which may be offered for resale or re-license, provided that the software significantly adds value to JASMI and that the license key used to run JASMI is not distributed in readable form (i.e., clear text). Granted use (b) depends on the purchase of a license of type (b) set forth in Addendum A. 2.3 No Sublicense Right. LICENSEE has no right to transfer, sublicense or otherwise distribute the Licensed Software to any third party. 2.4 Other Restrictions in License Grants. LICENSEE may not: (i) copy the Licensed Software, except as necessary to use the Licensed Software in accordance with the license granted under Section 2.1 and 2.2, and except for a reasonable number of backup copies. 2.5 No Trademark License. LICENSEE has no right or license to use any trademark of LICENSOR during or after the term of this Agreement. 2.6 Proprietary Notices. The Licensed Software is copyrighted. All proprietary notices incorporated in, marked on, or affixed to the Licensed Software by LICENSOR shall be duplicated by LICENSEE on all copies, in whole or in part, in any form and not altered, removed, or obliterated. 2.7 Reservation. LICENSOR reserve all rights and licenses to the Licensed Software not expressly granted to LICENSEE under this Agreement. 2.8 Delivery. Upon execution of this Agreement, and payment of the amounts due and owing under this Agreement, LICENSOR will provide LICENSEE with one (1) copy of the Product by downloading from LICENSOR'S Web site including one registration code (license key) needed to use the Product. 3. PRODUCT WARRANTY. 3.1. LICENSOR warrants to LICENSEE that, at the date of delivery of the Products to LICENSEE and for a period ending 90 days following the date of delivery of the Products to LICENSEE the Products shall perform substantially in accordance with the published specifications and Documentation. If notified in writing by LICENSEE, LICENSOR may, at its option, correct significant program errors in the Products within a reasonable time period. THE FOREGOING PRODUCT WARRANTY IS 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, WHETHER IMPOSED BY CONTRACT, STATUTE, COURSE OF DEALING, CUSTOM OR USAGE OR OTHERWISE. 3.2. Except as set forth above, in no event shall LICENSOR be liable to LICENSEE, in excess of the price paid to LICENSOR by LICENSEE for the Products hereunder, for any breach of warranty or any claim, loss or damage arising from or relating to the installation, use or performance of the Products (including, without limitation, any indirect, special, incidental or consequential damages). 3.3. LICENSOR reserves the right at any time to make changes to the Products. 3.4. IN NO EVENT SHALL LICENSOR BE LIABLE (WHETHER IN TORT, NEGLIGENCE, CONTRACT, WARRANTY, PRODUCT LIABILITY OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS OR SAVINGS ARISING OUT OF ITS PERFORMANCE OR NONPERFORMANCE OF TERMS OF THIS AGREEMENT OR THE USE, INABILITY TO USE OR RESULTS OF USE OF THE PRODUCTS EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 3.5 In no event will LICENSOR be liable for any third-party products used with, or installed in, the Product. LICENSOR does not warrant the compatibility of the Product with any third-party products, whether hardware or software. 4. COPYRIGHT AND PATENT INDEMNIFICATION. 4.1. LICENSOR agrees to indemnify and hold LICENSEE harmless from any final award of costs and damages against LICENSEE for any action based on infringement of any German copyright or patent as a result of the use of the Products: (i) under the terms and conditions specified herein; (ii) under normal use; and (iii) not in combination with other items; provided that LICENSOR is promptly notified in writing of any such suit or claim against LICENSEE and further provided that LICENSEE permits LICENSOR to defend, compromise or settle the same and gives LICENSOR all available information, reasonable assistance and authority to enable LICENSOR to do so. LICENSOR'S LIABILITY TO LICENSEE PURSUANT TO THIS ARTICLE IS LIMITED TO THE TOTAL FEES PAID BY LICENSEE TO LICENSOR IN THE CALENDAR YEAR IN WHICH ANY FINAL AWARD OF COSTS AND DAMAGES IS DUE AND OWING. 5. TRADE SECRETS AND PROPRIETARY INFORMATION. 5.1. LICENSEE acknowledges that LICENSOR is the owner of the Products, that the Products are confidential in nature and not in the public domain, that LICENSOR claims all intellectual and industrial property rights granted by law therein and that, except as set forth herein, LICENSOR does not hereby grant any rights or ownership of the Products to LICENSEE or any third party. Except as set forth herein, LICENSEE agrees not to copy or otherwise reproduce any Product, in whole or in part, without LICENSOR's prior written consent. LICENSEE further agrees to take all reasonable steps to ensure that no unauthorized persons shall have access to any of the Products and that all authorized persons having access to the Products shall refrain from any such disclosure, duplication or reproduction except to the extent reasonably required in the performance of LICENSEE'S duties under this Agreement. 5.2. LICENSEE agrees to accord the Products and the Documentation and all other confidential information relating to this Agreement the same degree and methods of protection as LICENSEE undertakes with respect to its confidential information, trade secrets and other proprietary data. 5.3. LICENSEE agrees not to challenge, directly or indirectly, the right, title and interest of LICENSOR in and to the Products, nor the validity or enforceability of LICENSOR's rights under applicable law. LICENSEE agrees not to directly or indirectly, register, apply for registration or attempt to acquire any legal protection for any of the Products or any proprietary rights therein or to take any other action which may adversely affect LICENSOR's right, title or interest in or to the Products in any jurisdiction. 5.4. LICENSEE acknowledges that, in the event of a breach by LICENSEE of its obligations under this Article 5, LICENSOR may immediately terminate this Agreement, without liability to LICENSEE and may bring an appropriate legal action to enjoin any such breach hereof, and shall be entitled to recover from LICENSEE reasonable legal fees and costs in addition to other appropriate relief. 5.5. LICENSEE agrees to notify LICENSOR immediately and in writing of all circumstances surrounding the unauthorized possession or use of the Products and Documentation by any person or entity. LICENSEE agrees to cooperate fully with LICENSOR in any litigation relating to or arising from such unauthorized possession or use. 6. TERMINATION. 6.1. LICENSOR may terminate this Agreement at any time after the occurrence of any of the following events: (a) LICENSEE is declared or acknowledges that it is insolvent or otherwise unable to pay its debts as they become due or upon the filing of any proceeding (whether voluntary or involuntary) for bankruptcy, insolvency or relief from creditors of LICENSEE; (b) LICENSEE enters into any agreement relating to its acquisition by an unaffiliated third party or a majority of the equity interest of LICENSEE is sold or otherwise transferred to an unaffiliated third party; (c) LICENSEE assigns or transfers this Agreement or any of its rights to obligations hereunder, without LICENSOR's prior written consent; or (d) LICENSEE violates any material provision of this Agreement, including without limitation, the payment obligations set forth in Addendum A. 6.2. LICENSEE may terminate this Agreement at any time after the occurrence of any of the following events: (a) LICENSOR is declared or acknowledges that it is insolvent or otherwise unable to pay its debts as they become due or upon the filing of any proceeding (whether voluntary or involuntary) for bankruptcy, insolvency or relief from creditors or LICENSOR; or (b) LICENSOR violates any material provision of this Agreement. 6.3. Upon the termination of this Agreement for any reason, LICENSEE will discontinue all use of the Products and, within ten (10) days after termination, will destroy or delete all copies of the Products then in its possession, including but not limited to, any back-up or archival copies of the Products and Documentation. At LICENSOR's request, LICENSEE will verify in writing to LICENSOR that such actions have been taken. 6.4. No termination of this Agreement for any reason whatsoever shall in any way affect the continuing obligations of the parties under Articles 5 hereof. 7. GENERAL PROVISIONS. 7.1. This Agreement does not create any relationship of association, partnership, joint venture or agency between the parties. 7.2. This Agreement (including the Addendums attached to the Agreement) sets forth the entire agreement and understandings between the parties hereto with respect to the subject matter hereof. This Agreement merges all previous discussions and negotiations between the parties and supersedes and replaces any and every other agreement, which may have existed between LICENSOR and LICENSEE with respect to the contents hereof. 7.3. Except to the extent and in the manner specified in this Agreement, any modification or amendment of any provision of this Agreement must be in writing and bear the signature of the duly authorized representative of each party. 7.4. The failure of either party to exercise any right granted herein, or to require the performance by the other party hereto of any provision if this Agreement, or the waiver by either party of any breach of this Agreement, shall not prevent a subsequent exercise or enforcement of such provisions or be deemed a waiver of any subsequent breach of the same or any other provision of this Agreement. 7.5. LICENSEE shall not sell, assign or transfer any of its rights, duties or obligations hereunder without the prior written consent of LICENSOR. LICENSOR reserves the right to assign or transfer this Agreement or any of its rights, duties and obligations hereunder, to any direct or indirect subsidiary or affiliate of LICENSOR. 7.6. All notices required by this Agreement must be sent by certified mail in order to be deemed effective when sent to the following: FOR LICENSOR: Frank Fock Rotenbuehlstrasse 37 71397 Leutenbach, Germany EXHIBIT A Licensed Software JASMI (Java API for SMI) a. Binary Code and Source Code (Java, JDK 1.2.2 or later) ADDENDUM A A license for JASMI is part of the following software licenses: (a) AgentGen Professional (b) MIB Designer License of type (a) is limited in the granted use a set forth in 2.2. In order to obtain a license of (a) or (b), LICENSEE has to purchase a license from LICENSOR. The actual pricing list and other related information can be found at http://www.agentpp.com