License Agrmnt Company And Platium Software Corp.

PLATINUM(R) SOFTWARE CORPORATION LICENSE AGREEMENT


This License Agreement (the "Agreement") is made between Platinum Software Corporation, a corporation formed under the laws of the State of Delaware, with its principal place of business at 195 Technology Drive, Irvine, California 92718 ("Licensor") and the Licensee whose name appears on the signature page of this Agreement, ("Licensee"). Licensor and Licensee agree that the provisions of the Agreement apply to the license of the Licensed Software under this Agreement and any Order placed under this Agreement.


1. Definitions.


"Affiliate": An affiliate of, or person "affiliated" with a specified person, is a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the specified person. Control means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise.


"Application Software": All modules of the Licensed Software, excluding the Customization Workbench.


"Authorized User(s)": Any employee of Licensee or its Affiliates, together with authorized agents or subcontractors of Licensee who shall require access to or use of the Licensed Software solely in connection with the business of Licensee.


"Concurrent User": Concurrent users are the number of users logged on to the system manager module or any other module of the Licensed Software.


"Customization Workbench": A series of software tools developed by Licensor utilized in the design and development of the Licensed Software which enable Licensee to obtain custom forms, reports and documents.


"Documentation": The user guides, manuals and associated documentation supplied by Licensor in connection with the Licensed Software.


"Licensed Software": That certain series of computer software programs which is described on the Order.


"Order": Licensor's standard form for ordering licenses of the Licensed Software, a copy of which is attached hereto.


"Subsidiaries": A corporation at least a majority of the voting capital stock of which is owned directly or indirectly by Licensee.


2. License.


(a) Subject to the terms and conditions of this Agreement, Licensor grants to Licensee, a non-exclusive and non-transferable license with respect to the Application Software to: (i) install, the server portion of the Application Software on a single computer acting as a network server ("Server") at its facilities in support of its internal business activities; (ii) install the client portion of the Application Software, which includes client interface libraries and client utilities on workstations or computers which are operating on a single network and are connected to one Server; (iii) use the Documentation only in conjunction with the installation and use of the Application Software. The License granted to Licensee hereunder shall be a license to use the machine-readable object code only, excluding any source code. As part of this license, only the number of Concurrent Users specified on the Order may access the network and use the services of the Application Software on the Server. In order to authorize additional Concurrent Users the Licensee must purchase additional user blocks. The license granted in this Section 2 is a license to use the Application Software on one Server. In addition, the Application Software may be used on an additional non-production server at no additional charge, subject to the concurrent user limitation for the purpose of testing and for training Licensee's employees on the use of the Application Software, provided that if the Application Software is loaded on another server for training, the Application Software is removed from the second Server once the training session 2 is completed. The magnetic media, disk or CD-ROM on which the Licensed Software is recorded may contain modules or applications for which Licensee does not have a fully paid license to use. Licensee agrees to use only those applications or modules of the Licensed Software for which it has a fully paid license.


(b) [Customization Workbench License] If Licensee licensed the Customization Workbench, Licensor grants Licensee as an individual, a personal, non-exclusive license to use one copy of the Customization Workbench on a single computer for modification and enhancement of the Application Software. If Licensee is an entity, Licensor grants to Licensee the right to designate one individual within Licensee's organization to have the right to use the Customization Workbench. The Customization Workbench may also be used by a third party consultant to modify or enhance the Application Software, provided the Customization Workbench is loaded on Licensee's computer. Licensee may not modify the Application Software or have a third party modify the Application Software unless Licensee has a valid license for the Customization Workbench. The Customization Workbench may also be used to design, develop or test software products which operate with the Application Software.


(c) In addition to the rights granted in Section 2(b), Licensor grants to Licensee the right to use and modify the source code version of those portions of the Customization Workbench designated as "Sample Code" or "Templates" ("Sample Code") for the sole purposes of designing, developing and testing Licensee's software product(s), and to reproduce and distribute the Sample Code, along with any modifications thereof, only in object code form provided that Licensee complies with Section 2(d) below.


(d) In addition to the rights granted above, Licensor grants Licensee a nonexclusive royalty-free right to reproduce and distribute the object code version of any portion of the Customization Workbench listed in the following Customization Workbench files: Object Data Definition Files (*.odd), Platinum Publisher Report Files (*.rpt) and Platinum Basic P-code Files (*.SBX) ("Redistributable Software"), provided you comply with the following. If Licensee redistributes the Sample Code or Redistributable Software (collectively, "Redistributables") Licensee agrees to (i) distribute the Redistributables in object code only in conjunction with and as a part of a software application product developed by Licensee which adds significant and primary functionality to the Application Software and which is developed to operate with the Application Software; (ii) not use Licensor's name, logo, or trademarks to market your software application product; (iii) include a valid copyright notice on Licensee's software product; (iv) indemnify, hold harmless and defend Licensor from and against any claims or lawsuits, including attorney's fees that arise or result from the use or distribution of Licensee's software application product; (v) not permit further distribution of the Redistributables by Licensee's end user.


3. Delivery.


Within thirty (30) days after the date of this Agreement or such other date as specified on the Order, Licensor will deliver to Licensee the Licensed Software and all Documentation. Licensee shall be solely responsible for acquiring and installing computer hardware and the appropriate environment for the network. The Licensed Software shall be deemed to have been accepted by Licensee following delivery.


4. License Fees, Shipping Charges and Payment.


Licensee agrees to pay Licensor the license fees specified on the Order in installments as specified on the Order plus all shipping and freight charges in connection with the delivery of the Licensed Software.


5. Ownership; Copies.


(a) All right, title and interest in and to the Licensed Software, Documentation, enhancements or updates developed by Licensor and furnished to 3 Licensee and the media on which the same are furnished to Licensee, and all copyrights, patents, trademarks, service marks or other intellectual property or proprietary rights relating thereto, are and shall remain with Licensor. Licensee acknowledges that no such right, title or interest in these items is granted under this Agreement, and that no such assertion shall be made by Licensee. Licensee is granted only a limited right of use as set forth herein, which right of use is subject to termination in accordance with Section 11 of this Agreement.


(b) Except as provided in Section 13(f) below, Licensee is prohibited from distributing, transferring possession of, or otherwise making available the Licensed Software, Documentation, enhancements or updates to any person other than Authorized Users under the terms of this Agreement and from installing the Licensed Software, enhancements or updates for use on any workstation or computer not within the property owned or leased by Licensee. Licensee shall advise all Authorized Users that they are prohibited from reproducing, distributing, transferring possession of or otherwise making available copies of the Licensed Software, Documentation, enhancements or updates and from using or installing the Licensed Software, enhancements or updates on any computer at any other location.


(c) Licensee shall not make any copies of any of the Documentation. Should Licensee require any additional copies of the Documentation, it shall obtain such copies from Licensor pursuant to the then current terms and conditions of Licensor relating thereto. Licensee shall not make any additional copies of the Licensed Software, enhancements or updates; provided, however, that Licensee may make up to two (2) additional copies of the Licensed Software for back-up or archival purposes and a reasonable number of copies for training purposes in accordance with Section 2 of this Agreement. All authorized copies of the Licensed Software shall contain all copyright notices or proprietary legends specified by Licensor.


6. Confidentiality.


(a) Because of this Agreement, the parties may have access to information that is confidential to one another ("Confidential Information"). Confidential Information shall include the Licensed Software and updates, including all source and object code and Documentation related to such software and the terms and pricing under this Agreement. Confidential Information also includes information relating to the disclosing party's business or financial affairs, such as financial results, business methods, pricing, competitor and product information and all other information designated as confidential. A party's Confidential Information shall not include any information which (i) becomes part of the public domain through no act or omission of the other party; (ii) is lawfully acquired by the other party from a third party without any breach of confidentiality; or (iii) is disclosed by a party to a third party without any obligation of confidentiality. The parties agree to maintain the confidentiality of the Confidential Information and to protect as a trade secret any portion of the other party's Confidential Information by preventing any unauthorized copying, use, distribution, installation or transfer of possession of such information. Each party agrees to maintain at least the same procedures regarding Confidential Information that it maintains with respect to its own Confidential Information. Without limiting the generality of the foregoing, Licensee shall not permit any personnel or Authorized User to remove any proprietary or other legend or restrictive notice contained or included in any material provided by Licensor.


(b) Both parties acknowledge that any use or disclosure of the other party's Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the non-disclosing party irreparable damage for which remedies other than injunctive relief may be inadequate, and both parties agree that the non-disclosing party shall be entitled to receive from a court of competent jurisdiction injunctive or other equitable relief to restrain such 4 use or disclosure in addition to other appropriate remedies. (c) The terms and provisions of this Section 6 shall survive any termination of this Agreement for any reason for a period of five years. (d) Licensee and Authorized Users shall not attempt to decompile or disassemble the object code of the Licensed Software and Licensee agrees to use its best efforts to prevent decompilation and disassembly of the object code of the Licensed Software by Authorized Users.


7. Warranties. (a) Licensor represents that it is the lawful owner or licensee of the Licensed Software and has the full right and authority to grant the licenses hereunder.


(b) Licensor warrants that the magnetic media on which the Licensed Software or an update is recorded and any Documentation provided under the terms of this Agreement will be free from defects in material and workmanship under normal use for a period of ninety (90) days. Licensor further warrants that the Licensed Software will perform substantially in accordance with the specifications set forth in the Documentation for a period of ninety (90) days from the date it is delivered.


(c) Licensor does not warrant that the functions contained in the Licensed Software or in any update will meet the requirements of Licensee or Authorized Users or that the operation of the Licensed Software or update will be uninterrupted or error-free. The warranties set forth in this Section do not cover any copy of the Licensed Software, update or any Documentation which has been altered or changed in any way by the Licensee or any Authorized User. Licensor is not responsible for problems caused by changes in, or modifications to, the operating characteristics of any computer hardware or operating system for which the Licensed Software or any update is procured, nor is Licensor responsible for problems which occur as a result of the use of the Licensed Software in conjunction with software of third parties or with hardware which is incompatible with the operating system for which the Licensed Software is being procured.


(d) As an accommodation to Licensee, Licensor may supply Licensee with pre-production releases of software programs ("Beta Releases"). These products are not suitable for production use. Licensor does not warrant that their operation will be uninterrupted or error free. Beta Releases, are distributed "AS IS".


(e) ANY IMPLIED WARRANTIES, TERMS OR CONDITIONS, INCLUDING WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY EXCLUDED. The warranties, terms and conditions contained in this section are made in lieu of all other express warranties, terms or conditions, whether oral or written. Only an authorized officer of the Licensor may make modifications to this warranty or additional warranties binding on the Licensor, and such modifications or additional warranties must be in writing.


8. Limitation of Remedies.


(a) Subject to Section 12 of this Agreement, Licensor's entire liability and Licensee's exclusive remedy for the breach of Licensor's warranty obligations in Section 7 shall be (i) in the case of defects in media the replacement by Licensor of any magnetic media or Documentation not meeting Licensor's Limited Warranty, and (ii) in case of any nonconformity or defect in the Licensed Software, Licensor shall use commercially reasonable efforts to provide maintenance modifications or fixes with respect to any such error in a timely manner or at its option replace the Licensed Software. Licensor, however, shall not be obligated to correct, cure or otherwise remedy any error or defect in the Licensed Software resulting from any (i) modification of the Licensed Software by Licensee, (ii) misuse or damage of the Licensed Software or (iii) failure of Licensee to notify Licensor of the existence and nature of such nonconformity or defect promptly upon its discovery.


(b) LICENSOR DISCLAIMS ANY AND ALL LIABILITY FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) ARISING OUT OF THIS AGREEMENT 5 OR WITH RESPECT TO THE INSTALLATION, USE, OPERATION OR SUPPORT OF THE LICENSED SOFTWARE OR ANY UPDATE OF THE LICENSED SOFTWARE, EVEN IF LICENSOR HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.


(c) Subject to Section 12 of this Agreement, Licensee specifically agrees that any liability on the part of Licensor arising from breach of warran ...