Software License Agreement

SOFTWARE LICENSE AGREEMENT







Number MEI-022796



This AGREEMENT dated as of March 29, 1996, is between Clarify Inc., 2702 Orchard Parkway, San Jo se, CA 95134 (hereinafter called "Clarify"), and MindSpring Enterprises, Inc., 1430 West Peachtree Street, NW, Suite 400, Atlanta, GA, 30309 (hereinafter called "CUSTOMER").



1.0 DEFINITIONS



1.1 "Agreement" means this License Agreement, any amendment thereto, or any Schedule or Exhibit that exists as of the date of this Agreement or may hereinafter be incorporated by reference.



1.2 "Concurrent User" means a Registered Client licensed to Use a Licensed Program which has been designated by Clarify to be a concurrent software application. A concurrent software application is a Licensed Program which may be shared by any number of Registered Clients but, the maximum simultaneous Use of the Licensed Program is limited to the nu mber of Concurrent User licenses purchased by CUSTOMER.



1.3 "License Fees" means amounts charged to CUSTOMER for the Use of Licensed Programs.



1.4 "Licensed Programs" means those computer software programs listed in the "Clarify Product Quotation", incorporated herein by reference as Schedule A, (as well as any updates thereof furnished by Clarify pursuant to the terms of this AGREE M ENT) and in any written amendments thereto, in machine readable, printed or other form, including but not limited to instructional and operational manuals, flow charts, logic diagrams, file layouts and listings. The term Licensed Programs does not include source code in any form, such source code being the sole and exclusive property of Clarify, free from any claim or retention of rights thereto on the part of CUSTOMER.



1.5 "Node Locked Software" means a Licensed Program which is licensed for Use on a designated computer only.



1.6 "Proprietary Information" means the Licensed Programs in any embodiment, and any other information relating to the Licensed Programs received by CUSTOMER from Clarify which is also identified by Clarify as proprietary or confidential.



1.7 "Registered Client" means any computer system authorized to Use a Licensed Program and access data from or perform functions on a Server.



1.8 "Server" means a designated computer system situated at a specific location and configured with Licensed Programs to support an authorized number of Registered Clients and Concurrent Users.



1.9 "Use" means (i) transferring any portion of any Licensed Program from storage units or media into the CUSTOMER's computer equipment for processing; (ii) executing any portion of any Licensed Program as a Registered Client or as a Concurrent User for any purpose; (iii) executing any portion of any Node Locked Software for any purpose; (iv) accessing an y Server for the purpose of obtaining or preparing information or data created through the execution of a Licensed Program; or (v) merging any Licensed Programs in machine readable form into another program.



2.0 GRANT OF LICENSE



2.1 Clar ify grants to CUSTOMER, on the terms and conditions set forth herein, that number of non-exclusive, non-transferable, perpetual and royalty-free licenses specified in Schedule A, and any amendments thereto, as such licenses are required to support impleme ntation of Customer's configuration of Server, Registered Client, Concurrent User, and Node Locked Software applications. The license granted does not authorize CUSTOMER to change or modify the Licensed Programs.



2.2 Clarify reserves the righ t, upon prior notice to CUSTOMER to audit usage and, if unauthorized Use is found, CUSTOMER agrees to cease such usage immediately upon receipt of written notification, or to promptly purchase additional Licensed Programs such that the total of all purcha sed licenses reflects the actual number of licenses in Use.



3.0 CONDITIONS OF LICENSE



3.1 CUSTOMER may, in accordance with the section entitled "Trade Secrets - Intellectual Property Rights" (Section 11.1) copy for backup purposes only, License Programs which are provided in machine readable form. CUSTOMER may copy, for internal use only, any portion of Licensed Programs which are provided in printed form (i.e. instructional or operational manuals).



3.2 Immediately upon the termination of this Agreement, CUSTOMER shall return to Clarify the original and all copies of the Licensed Programs and shall certify in writing to Clarify that it has done so.



3.3 Except as permitted herein, CUSTOMER shall (a) not reproduce , reverse engineer, decompile, transfer electronically or permit any other Use of the Licensed Programs not expressly authorized by Section 2; and b) acknowledge that any unpermitted act(s) or Use(s) is a breach of a material obligation of this Agreement.



4.0 PRICE AND PAYMENT TERMS



4.1 Payment of License Fees shall entitle CUSTOMER to Use the Licensed Programs subject to the terms of this Agreement. License Fees shall be due and payable "Net 30 Days" from date of invoice. Applicable t axes, including sales, use, personal property, excise, or other taxes and duties and, specifically excluding any income or corporate franchise taxes, will be paid by CUSTOMER. Interest will be charged on past due amounts at the lesser of one and one-half percent (1 1/2%) per month, or at the maximum interest rate allowed by law.



5.0 DELIVERY AND INSTALLATION



5.1 Delivery dates quoted by Clarify or its personnel represent Clarify's best estimate only of the expected Delivery Date. Clarify will not be liable for any damages or penalties arising from any delays in delivery or for failure to give no tice or any delivery













delay. Risk of loss of Licensed Programs shall transfer to CUSTOMER upon delivery.



5.2 It is the responsibility of the CUSTOMER to provide and prepare, in the configuration and at the location specified in Schedule A , the system environment upon which the Licensed Programs are to be installed. Clarify will invoice CUSTOMER for the setup and installation of the Licensed Programs as such service is provided.



6.0 CONSULTING, TRAINING AND MAINTENANCE SUPPORT



6.1 At CUSTOMER's election, and in accordance with the terms and conditions of a mutually developed Consulting and Training Services Agreement and/or Software Maintenance Agreement, Clarify will provide such support services to CUSTOMER.



7.0 PATENT AND COPYRIGHT INFRINGEMENT



7.1 Clarify shall, at its own expense, defend or at its option, settle any claim, suit or proceeding brought against CUSTOMER on the issue of infringement of any patent, copyright or other proprietary rights, of any third party, by virtue of CUSTOMER's usage of any of the Licensed Programs pursuant to the terms of this Agreement. Clarify shall indemnify and hold CUSTOMER harmless from and against any costs, expenses, settlements or damages, including reasonab l e attorney fees, related to any claim for infringement provided that CUSTOMER: (a) promptly notifies Clarify in writing of the action; (b) CUSTOMER permits Clarify full authority to defend or settle the action; and (c) CUSTOMER cooperates and provides all available information, assistance and authority to defend or settle the action. Clarify shall not be liable for any costs, expenses, damages or fees incurred by CUSTOMER in defending such action or claim unless authorized in advance, in writing by Clarif y.



7.2 If a Licensed Program is, or in the opinion of Clarify is likely to become the subject of a claim, suit or proceeding of infringement, Clarify may in its sole discretion: (a) procure, at no cost to CUSTOMER, the right to continue using the Licensed Program, (b) replace or modify the Licensed Program to render it non-infringing, provided there is no material loss of functionality or (c) if, in Clarify's reasonable opinion, neither (a) nor (b) above are commercially feasible, to terminate the license and refund the amounts CUSTOMER paid for such Licensed Programs (as depreciated on a straight line basis over a period of 60 months). The foregoing obligations of Clarify do not apply with respect to Licensed Programs or portions or component s thereof (i) not supplied by Clarify; (ii) which are modified by CUSTOMER, if the alleged infringement relates to such modifications; (iii) combined with other products, processes or materials where the alleged infringement relates to such combination, (i v ) where CUSTOMER continues the allegedly infringing activity after being notified thereof or after being informed and provided with modifications that would have avoided the alleged infringement, or (v) where CUSTOMER's use of the Licensed Programs is not strictly in accordance with the purpose for which this license has been granted herein.



8.0 LIMITED WARRANTY



8.1 Clarify warrants that it has the right to enter into this Agreement and that it has the right to grant the licenses hereund er. Clarify warrants for a period of ninety (90) days from the date of delivery that the Licensed Programs will be free from defects in media and shall substantially conform to the specifications therefore set forth in the documentation, subject to the c o ndition that the Licensed Programs are installed on computer hardware conforming to Clarify's published system requirements. In the event of any non conformance of the Licensed Programs, CUSTOMER shall promptly notify Clarify in writing, and provide Clar i fy with evidence and documentation which reproduces the claimed error and resultant output from the execution of such programs or data. Clarify's sole obligation under this warranty shall be limited to use of its commercial best efforts to promptly corre c t such defects. Except as provided under a valid Maintenance Agreement, Clarify will be under no obligation to provide CUSTOMER with phone support or with any Licensed Programs updates, releases or enhancements other than to remedy non conformance under t his warranty. Clarify's warranty obligations shall be void if the Licensed Program(s) is/are used on other than computer hardware conforming to Clarify's published system requirements or the computer hardware is modified without the advance written conse nt of Clarify.



9.0 DISCLAIMER OF ALL OTHER WARRANTIES



9.1 EXCEPT AS SPECIFICALLY SET FORTH IN THE SECTION ENTITLED "LIMITED WARRANTY" (SECTION 8.0), CLARIFY MAKES NO EXPRESS OR IMPLIED OR STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PART I CULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, TRADE USAGE OR TRADE PRACTICE. THE SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE WARRANTIES AS SET FORTH IN THIS AGREEMENT SHALL BE REJECTION AND REFUND OF ANY AMOUNTS ACTUALLY PAID BY CUSTOMER TO CLA RIFY FOR LICENSED PROGRAMS ONLY. THE PARTIES TO THIS AGREEMENT HEREBY ACKNOWLEDGE THE EXISTENCE OF ERRORS IN THE LICENSED PROGRAMS AND CLARIFY OFFERS NO WARRANTY THAT ALL ERRORS IN THE PROGRAMS WILL BE CORRECTED.



10.0 LIMITATION OF LIABILITY



10.1 EXCEPT AS PROVIDED FOR IN THE SECTION ENTITLED "PATENT AND COPYRIGHT INFRINGEMENT (SECTION 7.0), NEITHER CLARIFY, NOR CLARIFY'S SUPPLIERS, SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR ANY ATTACHMENT, ADDE NDUM, SCHEDULE OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: A) FOR LOSS OR INACCURACY OF ANY DATA OR







COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; B) FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS; OR C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.



10.2 Except as provided for in Section Entitled "Patent and Copyright Infringement" (Section 7.0) of this AGREEMENT, the total maximum liability, if any, to CUSTOMER arising out of this Agreement as a result of any action or inaction by Clarify or Clarify's suppliers, shall be limited to the total license fees actually paid by CUSTOMER to Clarify. Th e existence of more than one claim will not enlarge or extend this limit.



11.0 TRADE SECRETS - INTELLECTUAL PROPERTY RIGHTS



11.1 CUSTOMER acknowledges that the Licensed Programs and related materials licensed hereunder are proprietary and protected by patent, copyright and or trade secret law. All proprietary notices incorporated in, marked on or fixed to Licensed Programs, or other confidential information by Clarify or its suppliers, shall be duplicated by CUSTOMER on all copies of all o r any part of the Licensed Programs, and shall not be altered, removed, or obliterated. The obligation to include such notices is a material obligation hereunder. A copyright notice on Licensed Programs does not, by itself, constitute evidence of public ation or public notice.



11.2 Clarify and the CUSTOMER agree during the term of this Agreement, and thereafter, to take all steps reasonably necessary to hold in trust and confidence all proprietary or confidential information. "Confidential Inf ormation" includes but is not limited to, technical and business information relating to inventions or products, research and development, production, manufacturing and engineering processes, costs, profit or margin information, employee skills and salari e s, finances, customers, marketing and production and future business plans. Nothing received by the parties will be considered to be the Confidential Information of the other party if (1) it has been published or is otherwise readily available to the pub l ic other than by a breach of this Agreement; (2) it has been rightfully received by the other party from a third party without confidential limitations; (3) it has been independently developed for the other party by personnel or agents having no access to the Confidential Information of either party; (4) it was known to either party prior to its first receipt from the other party; or (5) it has been disclosed by either party to a third party without restriction on disclosure.



11.3 Unless otherwise agreed to in writing by Clarify, CUSTOMER agrees to limit access to the Licensed Programs to those employees, contractors or affiliates actively employed or engaged on behalf of Customer in the installation or continued Use of the Lic ensed Programs.



12.0 TITLE



12.1 Subject to the licenses granted herein, all right, title and interest in and to the Licensed Programs, Clarify Proprietary Information and any other patents, patent applications, trademarks, copyrights or tr ade secrets owned by or the rights in which are held by Clarify and its licensors shall remain with Clarify and its licensors.



13.0 TERMINATION OF AGREEMENT



13.1 Either party may terminate this Agreement by written notice (i) should the o ther party file a petition in bankruptcy, or have filed against it an involuntary petition in bankruptcy not dismissed within sixty (60) days after filing, or apply for or consent to the appointment of a receiver, custodian, trustee or liquidator, or make a general assignment for the benefit of its creditors; or (ii) upon failure of the other party to make a payment hereunder within fifteen (15) days after written notice that such payment is past due; (iii) upon any other breach of this Agreement by the ot her party, which if remediable, has not been corrected within (60) days after written notice; (iv) immediately in the event of a breach of Sections 3.1, 3.3, 11.0 or 12.0 of this Agreement.



13.2 On termination of this Agreement, all licenses granted by Clarify to CUSTOMER hereunder shall terminate. CUSTOMER shall cease using the Licensed Programs, whether or not modified or merged into other materials, program installation instr u ctions and user manuals, and CUSTOMER shall certify in writing to Clarify all copies (in any form or media) of the Licensed Programs, installation instructions and user manuals, whether or not modified or incorporated into other materials, have been destr oyed or returned to Clarify.



13.3 CUSTOMER's obligation to pay Clarify amounts due hereunder and sections 3.3, 7.0, 8.0, 9.0, 10.0, 11.0, 12.0 and 14.0 shall survive any expiration or termination of this Agreement.



14.0 GENERAL PROVISIONS



14.1 GOVERNING LAW: The validity, construction and performance of this Agreement and the rights and obligations of the parties arising in connection therewith, shall be governed in all respects and for all purposes by and construed in accorda nce with the laws of the State of California, United States of America. Such law shall apply to all claims arising out of or in connection with the performance or breach of this Agreement whether such claims are characterized as contractual, tortuous or otherwise. The parties hereto expressly exclude from such applicable law the conflict of law rules of the State of California and the U.N. Convention on Contracts for the International Sale of Goods.



14.2 ENTIRE AGREEMENT: This Agreement sets forth the entire understanding and Agreement between CUSTOMER and Clarify as to the subject matter of their Agreement.



14.4 HEADINGS: Titles or headings to the sections of this Agreement are not part of the terms of this Agreement and are inserted only for convenience.



14.5 NOTICES: All notices, requests and other communications under this Agreement must be









made in writing and in the English language to the addresses as signed below.



14.6 LEGAL FEES: In the eve nt that legal action is instituted by either party to enforce the terms and conditions of this Agreement against the other party, the party which is unsuccessful in the suit will pay all reasonable legal fees incurred by the prevailing party.



14. 7 FORCE MAJEURE: Clarify's performance hereunder is subject to force majeure, including but not limited to wars, riots, strikes, labor disturbances, acts of God, fires, floods, explosions, civil disturbances, inability to obtain required material or t ransportation, and acts of governmental authorities.



14.8 TIMELY CLAIMS: No action for breach of this Agreement or any other action to enforce any claim arising out of or in connection with the subject matter of this Agreement shall be brought by CUSTOMER against Clarify more than one (1) year after the cause of action has accrued.



14.9 ACCESS BY Clarify: CUSTOMER agrees to provide Clarify with full, free and timely access to CUSTOMER's computer equipment and Licensed Programs at all reasonable times for the purpose of fulfilling its obligations hereunder.



14.10 CUSTOMER ACKNOWLEDGEMENT: CUSTOMER acknowledges that, prior to execution of this Agreement, it has had an opportunity to determine for itself the characteristi cs and capabilities of the Licensed Programs and is satisfied that the Licensed Programs fulfill CUSTOMER's requirements. Clarify makes no representations of any kind beyond those contained in this Agreement and no agent of Clar ...