Master Software License And Service Agreement

SDRC SDRC Operations, Inc.
2000 Eastman Drive Agreement No. ________________
Milford, Ohio 45150-2789


MASTER SOFTWARE LICENSE AND SERVICE AGREEMENT


SDRC OPERATIONS, INC. ("SDRC") AND


CUSTOMER Clark Material Handling
----------------------------------------------------------------------- ADDRESS 749 West Short Street
---------------------------------------------------------------------- CITY Lexington STATE KY ZIP 40508
------------------------- ------------- -----------------------------


This Agreement shall consist of the terms and conditions contained in the Schedules listed below which are designated by Customer's Initials and a Licensed Software Designation Agreement executed by SDRC and Customer referencing the Agreement Number cited above. Additional SDRC software and services may be ordered from time-to-time by Customer's execution of a supplemental Licensed Software Designation Agreement referencing the Agreement Number cited above, and upon execution by SDRC of such supplemental Licensed Software Designation Agreement, such future orders shall be governed by the terms and conditions referenced herein.


Terms and Conditions Customer's Initials


o Standard Annual Software License Schedule _______________


o Standard Extended Term Software License Schedule _______________


o Maintenance and Support Schedule _______________


o Services Schedule _______________


===============================================================================


This Agreement, together with the terms and conditions incorporated by reference, contains the entire understanding of SDRC and Customer and supersedes all prior written or oral communications between the parties with respect to the subject matter hereof. This Agreement does not operate as an acceptance of any conflicting terms and conditions and shall prevail over any conflicting provisions of any purchase order of Customer or any other instruments, it being understood that any purchase order issued by Customer shall be for Customer's convenience only and shall not be made a part of this Agreement. Deviations from these terms and conditions shall not be valid unless specifically agreed to in writing by an authorized employee of SDRC. By executing this Agreement below, Customer acknowledges that it has reviewed the terms and conditions incorporated into this Agreement and agree to be legally bound by same. Customer may not assign any of its rights or obligations under this Agreement. This Agreement shall be governed by, Subject to and construed in accordance with the laws of the State of Ohio.


================================================================================ CUSTOMER_______________________________ SDRC Operations, Inc. BY_____________________________________ BY________________________________ NAME __________________________________ NAME______________________________ TITLE__________________________________ TITLE_____________________________ DATE___________________________________ DATE______________________________


2 SDRC SDRC Operations, Inc.
2000 Eastman Drive Agreement No. ________________
Milford, Ohio 45150-2789


STANDARD EXTENDED TERM SOFTWARE LICENSE SCHEDULE


Customer Clark Material Handling Address 749 West Short Street
----------------------------- -------------------------
Lexington, KY 40508
-------------------------


1. Definitions


1.1 Licensed Programs(s) means the executable code version of the SDRC
software designated by Customer in the Licensed Software Designation
Agreement and any related documentation.


1.2 Computer System means the computer hardware equipment on which
Customer has elected to install and/or execute Licensed Program(s).


2. License Fee:


2.1 The extended term license fee is the aggregate of the fees stated in
the Licensed Software Designation Agreement for each Licensed Program
selected by Customer.


2.2 The fee shall be due and payable on the date the Licensed Program(s)
are shipped.


3 License Grants:


3.1 Licensed Program(s), including any documentation relating to or
describing such Licensed Program(s) such as, but not limited to, user
manuals, now or hereafter provided by SDRC, are furnished to Customer
under a non-exclusive, non-transferable license solely for Customer's
own use on the single designated Computer System on which each
Licensed Program is first installed. The Licensed Program(s) may only
be copied with the proper inclusion of SDRC's copyright notice for use
on such single Computer System for archival and back-up purposes. The
Licensed Program(s) may not be reverse compiled, disassembled or
otherwise reverse engineered.


3.2 If Customer is unable to operate the Licensed Program(s) on the
Computer System due to equipment malfunction, the Licensed Program(s)
may be transferred temporarily to another Computer System during the
period of equipment malfunction.


4. Installation:


Customer shall install the Licensed Program(s) only on Customer's
Computer System designated on the Licensed Software Designation
Agreement.


5. Title:


No title to or ownership in the Licensed Program(s) is transferred to
Customer. Title to and all applicable rights in patents, copyrights
and trade secrets in the Licensed Program(s) shall remain in SDRC or
third parties from whom SDRC has obtained rights to license the
Licensed Program(s). Licensed Program(s) provided hereunder,
including the ideas, concepts, know-how and technology contained
therein, are proprietary and confidential to and contain trade secrets
of SDRC or third parties from whom SDRC has obtained rights to license
the Licensed Program(s), and Customer agrees to be bound by and
observe the proprietary, confidential and trade secret nature thereof
as herein provided. Customer agree to take appropriate action by
instruction or agreement with its employees who are permitted access
to the Licensed Program(s) to fulfill its obligations hereunder.
Except as may be permitted in writing by SDRC, Customer shall not
provide or otherwise make available, the Licensed Program(s) or copies
thereof to any third party.


6. Term and Termination:


6.1 The terms of each license granted hereunder shall commence on the date
the extended term license fee is due and payable by Customer and shall
continue until such time as Customer discontinues use of the Licensed
Program(s) on the Computer System specified above, but otherwise shall
be without restriction as to time.


6.2 SDRC shall have the right to terminate Customer's license if Customer
fails to comply with these license terms and conditions. SDRC shall
give written notice to Customer of any such default and if the default
is not remedied within 30 days after such notice, the license shall
terminate.


6.3 Customer agrees, upon expiration of the license term or upon
termination by reason of Customer's default, to immediately return or
destroy the Licensed Program(s) and copies thereof as directed by
SDRC, and, if requested by SDRC, to certify in writing as to the
destruction or return of the Licensed Program(s) and all copies
thereof. 3


7. Warranty:


7.1 SDRC WARRANTS THAT FOR A PERIOD OF 90 DAYS AFTER DELIVERY OF LICENSED
PROGRAM(S) TO CUSTOMER, THE LICENSED PROGRAM(S) WILL PERFORM IN
ACCORDANCE WITH THE SDRC USER DOCUMENTATION. IN THE EVENT THE LICENSED
PROGRAM(S) DO NOT PERFORM IN ACCORDANCE WITH THE USER DOCUMENTATION,
THEN DURING THE 90 DAY WARRANTY PERIOD SDRC SHALL AT ITS OPTION (I)
CORRECT ANY VARIANCE BETWEEN LICENSED PROGRAM(S) PERFORMANCE AND
LICENSED PROGRAM(S) USER DOCUMENTATION; (II) REPLACE THE LICENSED
PROGRAM(S) MEDIA. THE FOREGOING SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE
REMEDY FOR ERROR OR DEFECT IN THE LICENSED PROGRAM(S).


7.2 THE ABOVE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, WHICH WARRANTIES ARE HEREBY DISCLAIMED,
INCLUDING THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.


8. Patent and Copyright Indemnification:


SDRC hall defend any action, suit or proceeding brought against
Customer in so far as it is based on a claim that the Licensed
Program(s) delivered hereunder infringe any United States patent or
copyright issued or registered as of the date of this Agreement,
provided that SDRC is promptly notified by Customer of the action and
given full authority , information and assistance (at SDRC's expense)
for the defense of the action. SDRC shall pay all damages and costs
awarded therein against Customer, but shall not be responsible for any
compromise made without its consent. SDRC may, at its option and
expense, revoke or modify the Licensed Program(s) so that infringement
will not exist or refund to Customer the price thereof as depreciated
or amortized by an equal annual amount over the lifetime of the
Licensed Program(s) as established by SDRC. SDRC's commitment shall
not extend to any infringement or claim thereof which is based upon
the combination of the Licensed Program(s) delivered hereunder with
software not supplied by SDRC.


9. Use of Licensed Program(s) and Limitation of Liability:


9.1 Customer shall retain full control over the use of the Licensed
Program(s) and any modifications or enhancements thereof as well as
Customer's use of any recommendations provided by SDRC during the
course of providing services under any other Schedule of this
Agreement. Accordingly Customer agrees to be solely responsible for
the design, repair and configuration of Customer's equipment,
machinery, systems and/or products. Customer assumes all risks and
liability for results obtained by the use or implementation of the
designs in any way influenced by the use of the Licensed Program(s) or
the provision of services, whether such designs are used singly or in
combination with other designs or products. Customer agrees that SDRC
shall have no liability to Customer or to any third party for any
ordinary, special or consequential damages or losses which might arise
directly or indirectly by reason of Customer's use of the Licensed
Program(s) or the provision of services. Customer shall protect,
indemnify, hold harmless and defend SDRC of and from any loss, costs,
damage or expense, including any attorney's fees, arising out of any
claim asserted against SDRC that is in any way associated with the
matters set forth in this Paragraph 9.1.


9.2 With respect to any claim not subject to Section 9.1, the liability of
SDRC for any claim hereunder, regardless of the form of action,
whether in contract or tort, including claims of negligence against
SDRC, shall be limited to the total of all amounts Customer has paid
to SDRC for the Licensed Program(s) or services that are alleged to
have caused damages or that is related to the cause of action. In no
event shall SDRC be liable for any incidental or consequential damages
including, without limitation, loss of use, loss of profits or other
consequential damages, even if SDRC has been advised of the
possibility of such damages. No action, regardless of form, arising
out of the transactions under this Agreement may be brought by
Customer more than two years after the cause of action has occurred.


10. Maintenance and Support:


Customer may elect to order from SDRC maintenance and support under
the terms and conditions of the Maintenance and Support Schedule,


11. Proprietary Right:


Information and data supplied by SDRC with the Licensed Program(s)
delivered hereunder, such as, but not limited to, user manuals and
documentation, are confidential and proprietary to SDRC and contain
trade secrets of SDRC. Such information and data are furnished solely
to assist Customer in the installation, operation and use of the
Licensed Program(s). All such confidential and proprietary information
and data shall be so marked and Customer agrees to abide by the terms
of such markings and not to reproduce or copy such data except as is
reasonably necessary for proper use of the Licensed Program(s).


12. Export:


12.1 Customer acknowledges that the Licensed Program(s) provided hereunder
may be subject to export controls. Customer agrees that any Licensed
Program(s) licensed hereunder will not be exported (or reexported from
the country where it was first installed), directly


4


or indirectly, separately or as a part of a system, without Customer,
at its own cost, fort obtaining all licenses from the United States
Department of Commerce and any other appropriate agency of the United
States Government as may be required by law.


12.2 Customer acknowledges and agrees that it shall not use the Licensed
Program(s) in the design, development, production, stockpiling or use
of missiles, or chemical or biological weapons nor shall it use the
Licensed Program(s) for facilities which are intended to produce
chemical weapons or chemical weapon precursors, unless a validated
export license is obtained from the United States Department of
Commerce where required.


12.3 Customer further acknowledges and agrees that it shall not use the
Licensed Program(s) either directly or indirectly to design, develop,
fabricate or test nuclear weapons or nuclear explosive devices or to
design, construct, fabricate, operate or construct components for
facilities: for the chemical processing of irradiated special nuclear
or source material: for the production of heavy water; for the
separation of isotopes of sources and special nuclear material, or for
the fabrication of nuclear reactor fuel containing plutonium unless a
validated export license is obtained from the United States Department
of Commerce where required.


13. Taxes:


The license fees and any other amounts payable pursuant to this
Agreement are exclusive of all national, state, regional, local,
municipal or other taxes and fees including, but not limited to,
excise, sales, use, property, ad valorem, intangible, goods and
services and value added taxes, customs duties and registration fees,
now in force or enacted in the future, and all such taxes and fees,
except taxes based on SDRC's net worth, capital or net income shall be
paid directly by the Customer, or if paid by SDRC, Customer will
reimburse SDRC.


14. Notice:


All notices required to be given hereunder shall be in writing. Notice
shall be considered delivered and effective upon receipt when sent by
registered or certified mail, return receipt requested, addressed to
the parties as set forth above. Either party, upon written notice to
the other, may change any name or address to which future notice shall
be sent.


15. Uncontrollable Circumstances:


If the performance of any part of this Agreement by SDRC or Customer
is prevented or delayed by acts of civil or military authority, flood,
fire, epidemic, war or riot, or other acts beyond the reasonable
control of either party, the party affected shall be excused from such
performance only during the continuance of any such event; provided
however, that if such delay in performance extends for more than 60
days, the other party, at its discretion, upon giving written notice,
may terminate this Agreement.


16. Regulations for Federal Acquisition:


If Customer is a unit or agency of the United States Government, the
following provisions apply:


(i) if the Licensed Program(s) are supplied to the Department of
Defense (DOD), the Licensed Program(s) are classified as commercial
Computer Software and the Government is obtaining only "restricted
rights" in the Licensed Programs(s) and its documentation as that term
is defined in Clause 252.227-7013(c)(l)of the DFARS; and (ii) if the
Licensed Program(s) are supplied to any unit or agency of the United
States Government other than DOD, the Government's rights in the
Licensed Program(s) and its documentation will be as defined in Clause
52.227-19(c)(2) of the FAR or, in the case of NASA, in Clause
18-52.227-86(d) of the NASA Supplement to the FAR.


17 General:


17.1 Customer may not assign any of its obligations, rights or remedies
hereunder and any such attempted assignment shall be null and void.


17.2 Customer shall not in any manner or form disclose, provide or
otherwise make available, in whole or in part, any Licensed Program(s)
and/or documentation to any third parties.


17.3 The waiver or failure of either party to exercise in any respect any
right provided for herein shall not be deemed a waiver of any further
right hereunder. This Schedule constitutes the entire terms and
conditions between the parties with respect to the subject licensing
of the Licensed Program(s) on an extended term basis and supersedes
all proposals, all previous negotiations and agreements, written or
oral, express or implied, between the parties with respect to the
license.


17.4 The terms and provisions contained in Sections 5,9, 11 and 12 shall
survive the termination of this Agreement.


17.5 This Agreement shall in all respects be governed by and construed in
accordance with the laws of the State of Ohio.


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SDRC SDRC Operations, Inc.
2000 Eastman Drive Agreement No. ________________
Milford, Ohio 45150-2789


MAINTENANCE AND SUPPORT SCHEDULE


Customer Clark Material Handling Address 749 West Short Street
----------------------------- ---------------------------
Lexington, KY 40508
---------------------------


The following are the terms and conditions under which SDRC agrees to furnish and Customer agrees to accept Software maintenance and support services for the Licensed Program(s) listed on the Licensed Software Designation Agreement under the Agreement cited above.


I. Eligibility requirements


Services under this Schedule are applicable only to SDRC Licensed
Program(s).


II. Customer may purchase Maintenance and Support services for the Licensed
Program(s) by indicating on the Master Software License and Service
Agreement that it desires same (such services are automatically furnished
as part of any annual license). All such services shall be upon the
following terms and conditions:


1. Maintenance:


SDRC shall correct any material variance between Licensed Program(s)
performance and Licensed Program(s) user manual description, including the
correction of documentation and/or software codes. SDRC shall distribute to
Customer corrected Licensed Program(s) as soon as they are available. SDRC
will respond to Customer's request for service within a reasonable time
considering all circumstances at the time of the request, including the
nature of the service required.


SDRC shall distribute to Customer those enhancements to the Licensed
Program(s) released without restrictions by SDRC to other licensees.
Enhancements include:


a. Licensed Program(s) Enhancements:


Versions of Licensed Program(s) which encompass improvements,
extensions, and other changes which SDRC, in its discretion, deems to
be logical improvements or extensions of the original Licensed
Program(s) supplied to Customer.


b. Documentation:


Updates and extensions or amendments of user documentation of the
Licensed Program(s).


c. System Updates:


Customer acknowledges that certain Licensed Program(s) enhancements
may require either additional hardware or hardware updates, with
respect to the Customer's original computer system, in order for
Customer to gain the full benefits of said enhancements. All costs and
responsibilities for such new or additional hardware shall be borne
solely by Customer.


2. Support:


SDRC shall provide telephone service to Customer for the purpose of
assisting Customer with the application of SDRC Licensed Program(s).
(Telephone service is defined as "answering questions requiring a
nominal amount of time, usually during the same telephone call.")
Visits either to the SDRC site by Customer, or to Customer's site by
SDRC and services in addition to telephone service will be charged at
SDRC's then current labor rates plus expenses. Customer will be
informed in advance of incurring any charges.


Fees:


3. Customer shall pay to SDRC an annual fee in advance for other
services set forth in this Schedule. There shall be no charge for this
service for an Annual License of the Licensed Program(s).


4. Term:


The right to receive Maintenance and Support pursuant to an extended
term license shall be for ____(____) months, but in no event shall any
term be for more than twenty-four (24) months.


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III. Warranty and Limitation of Liability


1. EXCEPT AS STATED IN THE APPLICABLE LICENSE SCHEDULE, THERE ARE NO
EXPRESS OR IMPLIED WARRANTIES RESPECTING THE AGREEMENT, THIS SCHEDULE
AND THE SERVICES PROVIDED HEREUNDER, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. THE WARRANTIES AND REMEDIES SET FORTH IN THE APPLICABLE
LICENSE SCHEDULE ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS, ORAL OR
WRITTEN, EXPRESS OR IMPLIED.


2. SDRC will not be liable for any failure or delay in performance due in
whole or in part to any cause beyond SDRC's reasonable control. SDRC's
liability in connection with the provision of Licensed Program
enhancements, corrected versions of the Licensed Program(s) or
services hereunder shall be subject to Section 9 of the Standard
Extended Term Software License Schedule or the Standard Annual
Software License Schedule as applicable to the Licensed Program(s).


IV. General


1. Customer may not assign any of its obligations, rights or remedies
under this Schedule and any such attempted assignment shall be null
and void.


2. The waiver or failure of either party to exercise in any respect any
right provided for herein shall not be deemed a waiver of any further
right hereunder.


3. Customer agrees that SDRC may perform such tests as SDRC shall deem
necessary to monitor compliance with applicable software licenses at
any time, with or without notice, during normal business hours.


7


SDRC SDRC Operations, Inc.
2000 Eastman Drive Agreement No. ________________
Milford, Ohio 45150-2789


SERVICES SCHEDULE


1. Services:


SDRC shall provide Customer with the Services set out in the Licensed
Software Designation Agreement. Amendments to the Licensed Software
Designation Agreement shall be agreed to in writing by both parties. Before
any amendments to the Licensed Software Designation Agreement are
implemented, all changes in the price necessitated by such amendments shall
be agreed to in writing.


2. Fees and Costs:


2.1 Customer shall pay SDRC for the Services, the fees and costs set out
in the Licensed Software Designation Agreement.


2.2 Fees and costs are due and payable by Customer upon receipt of
invoice.


2.3 The license fees and any other amounts payable pursuant to this
Agreement are exclusive of all national, state, regional, local,
municipal or other taxes and fees including, but not limited to,
excise, sales, use, property, ad valorem, intangible, goods and
services and value added taxes, customs duties and registration fees,
now in force or enacted in the future, and all such taxes and fees,
except taxes based on SDRC's net worth, capital or net income shall be
paid directly by the Customer, or if paid by SDRC, Customer will
reimburse SDRC.


2.4 In addition to the fees and costs, Customer shall reimburse SDRC
pursuant to SDRC's then current standard policies for all travel and
special or unusual out-of-pocket expenses incurred at Customer's
specific request which are not set forth in the Licensed Software
Designation Agreement.


3. Timetable:


While SDRC intends to use all reasonable efforts to provide the Services ...