Ingres Icebreaker BI Appliance User License Agreement

REDISTRIBUTION NOT PERMITTED

IMPORTANT -- READ CAREFULLY BEFORE USING THIS SOFTWARE:

Your use of the Ingres Icebreaker Business Intelligence Appliance, "Ingres Software Application", any accompanying documentation you download from Ingres website at www.ingres.com/downloads/ along with the Ingres Software Application, and any updates and upgrades to the Ingres Software Application are contingent upon your agreement to this clickthrough license. You acknowledge the review of and agreement to all of the terms and conditions set forth in this document. If You DO NOT AGREE with these terms and conditions, DO NOT use or install the Ingres Software Application.

Ingres Icebreaker Business Intelligence Appliance is a compilation solution that includes contributions from Jaspersoft, Ingres, and rPath. Each company represents its respective product and is subject to its own individually written and copyrighted licenses, including its own applicable EULA. This EULA is furthermore not meant to pertain to any application that may utilize the Ingres Icebreaker Business Intelligence Appliance as a component beyond the Appliance itself. Such applications are the property of that application’s copyright owner, to be distributed under separate license. As used herein, the following terms have the meanings set forth below:

"Background IP" means all Intellectual Property Rights owned by Ingres prior to the date of this Agreement, or developed independently after the date of this Agreement.

"Computer" means the hardware, if the hardware is a single computer system whether physical or virtual, or shall mean the computer system with which the hardware operates, if the hardware is a computer system component.

"End User" means the purchasers or licensees who download and/or use the Software for their own personal or internal use. "EULA" means an end user license agreement. This EULA is a legal agreement between you (either an individual or an entity) and Ingres Corporation ("Ingres") for the Ingres Software Application which may include components provided by suppliers and licensors to Ingres under separate license as set forth above. "Ingres Software Application" means the object code versions of the product, together with the program code, updates, upgrades, revisions, additions, modifications or enhancements to the program code owned and provided by Ingres to you pursuant to this EULA. Ingres Software Application shall not include any Third Party Software that is not specifically referenced within the scope of this Agreement, including any Open Source Code or Programs not specifically referenced or excluded within this License.

"Third Party Software" means Software created by a third party that is not licensed to you under this Agreement.

NOTE: ANY THIRD PARTY SOFTWARE, INCLUDING ANY THIRD PARTY PLUG-IN THAT MAY BE PROVIDED WITH THE SOFTWARE IS INCLUDED FOR USE AT YOUR OPTION. IF YOU CHOOSE TO USE SUCH THIRD PARTY SOFTWARE OPTIONAL TO THE FUNCTIONALITY OF THE BI APPLIANCE, THEN SUCH USE SHALL ALSO BE GOVERNED BY SUCH THIRD PARTY'S LICENSE AGREEMENT. INGRES IS NOT RESPONSIBLE FOR ANY THIRD PARTY SOFTWARE AND SHALL HAVE NO LIABILITY FOR YOUR USE OF THIRD PARTY SOFTWARE.

OpenSource rPath Licenses

The third-party components contained in this Ingres Icebreaker Business Intelligence Appliance may include or contain software licensed under the following licenses, Apache License 2.0, CPL, the rPath Commercial License, GNU General Public License ("GPL"), Lesser GNU General Public License, DB license, IBM License, CRACKLIB, and the Commercial Redistribution License ("Open Source Programs"). These Open Source Programs are licensed pursuant to a EULA that permits the End User to copy, modify, and redistribute the software, in both source code and binary code forms. These EULAs can be located at www.rpath.com/permanent/licenses. Nothing in this EULA limits End User’s rights under, or grants the End User rights that supersede the terms of any applicable Open Source Program EULA.

OpenSource Jaspersoft Licenses

The third-party components contained in this Ingres Icebreaker Business Intelligence Appliance may include or contain software licensed under the following licenses, GNU General Public License ("GPL"), Lesser GNU General Public License, and Common Public License ("CPL") ("Open Source Programs"). These Open Source Programs are licensed pursuant to a EULA that permits the End User to copy, modify, and redistribute the software, in both source code and binary code forms. Nothing in this EULA limits End User’s rights under, or grants the End User rights that supersede the terms of any applicable Open Source Program EULA. For further information: http://www.jaspersoft.com/downloads/whitepaper/wp_professional_vs_opensource.pdf

The Ingres Software Application is a collective work under U.S. Copyright Law. Ingres and its contributors hereby grant End User the following license to use the Ingres Software Application in the End User’s facility subject to the terms contained herein and subject to the licenses referenced herein.

1. GRANT OF LICENSE. Upon payment of any fees applicable, Ingres hereby grants to you a non-exclusive, personal license to use the Ingres Software Application and any related documentation subject to the following terms:

a) For each subscription that you purchase, you may: (i) use the Ingres Software Application described in Order Form(s) referencing this Agreement and accepted by Ingres; (iii) copy the Ingres Software Application for back-up and archival purposes, provided any copy must contain all of the original Software's proprietary notices within the United States and its territories or any other country to which this Software can legally be exported, and you certify in writing to Ingres that your company has a bonafide disaster recovery plan. Such archival copy shall be limited to conducting limited testing of the plan procedures and effectiveness, not to exceed one week in any three month period, or subsequent to an actual disaster. Except as expressly provided in another Ingres License, you may not distribute, lend, rent, lease or loan the Ingres Software Application; it is to be used for your own internal data processing operations, and made accessible only to you or your authorized employees However, you may transfer the Ingres Software Application as a whole on a permanent basis, provided that you retain no copies of the transferred Ingres Software Application, the transferee agrees in writing to the terms of this EULA, and you notify Ingres of the transfer within ten (10) days of such transfer. If you desire to do so, subject to obtaining written consent, you will be required to pay the then-applicable upgrade, supplemental, transfer, or replacement fees. The Ingres Software Application may not be transferred to another country.

b) The Ingres Software Application is "in use" on a computer when it is loaded into temporary memory or installed in permanent memory (Hard Drive, CD-ROM or other storage device). You agree to use your best efforts to prevent and protect the contents of the Ingres Software Application and documentation from unauthorized use or disclosure. You agree that you will register this Ingres Software Application and its Key Number only with Ingres and that you will only install a Software Subscription obtained directly from Ingres. If this Agreement terminates, you agree to certify in writing to us that all copies or partial copies of the Ingres Software Application have been either returned to us or otherwise destroyed and deleted from any computer libraries or storage devices and are no longer in use by you.

Excluded Components

The components listed below are "Excluded Components." Notwithstanding any of the terms in the Agreement or any other agreement You may have with Ingres Corporation:

(a) the third party suppliers of such Excluded Components ("Suppliers") provide the components WITHOUT WARRANTIES OF ANY KIND, AND SUCH SUPPLIERS DISCLAIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING, BUT NOT LIMITED TO, WARRANTY OF TITLE, NON-INFRINGEMENT, OR INTERFERENCE, OR ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE EXCLUDED COMPONENTS.

(b) in no event are the Suppliers liable for any direct, indirect, incidental, special, exemplary, punitive or consequential damages, including but not limited to lost data, lost savings, or lost profits, with respect to the Excluded Components;

(c) Ingres Corporation and such Suppliers are not liable to you and will not defend, indemnify, or hold you harmless for any claims arising from or related to the Excluded Components.

Notwithstanding these exclusions, in Germany and Austria, Ingres's warranty and liability for the Excluded Components is governed only by the respective terms applicable for Germany and Austria in the Ingres license agreements.

Your use of the Excluded Components is governed by the terms of the Agreement. The terms contained in the Agreement are offered by Ingres Corporation and not by any other party. Future Program updates or patches may contain additional Excluded Components. Such additional Excluded Components, and related notices and information, if any, will be listed in another "notices" file corresponding to the Program update or patch.

The following are Excluded Components: Xerces; Kerberos; CA Zip; CA XP; CA PAX

2. LICENSE RESTRICTIONS.

a) You may not reverse engineer, decompile, or disassemble the Software Product in whole or in part, except where this restriction is expressly prohibited by law; nor shall you attempt to recreate the source code from the object code of the Software Product. Such activity is grounds for immediate termination of this EULA. Any other activity regarding the form or substance of the Software Product will be allowed only to the extent such activity is expressly permitted by applicable law. You may not modify, translate, adapt or create derivative works based on the Software Product, nor attempt to remove any proprietary notice or disable any protective device incorporated into the Software Product. Any modification will be deemed a breach of this EULA, and such derivative work will be owned entirely by Ingres.

b) You agree that you shall only use the Software Product and documentation in a manner that complies with all applicable laws in the jurisdictions in which you use the Software Product and documentation, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.

3. OWNERSHIP. The Software Product is protected by intellectual property and copyright laws and treaties worldwide, and may contain trade secrets of Ingres or its suppliers, who have and maintain exclusive right, title and interest in and to the Software Product, and reserve and retain all rights not expressly granted to you under this EULA. All title and intellectual property rights in and to software and/or content which is not contained in the Software, but may be accessed or used through use of the Software, is product belonging to the respective content owner and may be protected by intellectual property and copyright laws and treaties worldwide. This EULA grants you no rights to such content. The Software is licensed, not sold, to you.

4. AUDIT. If you desire to increase the number of machines, users or CPUs on which the Licensed Program will be used, you may do so by purchasing additional licenses for such machines, users and/or CPUs. Upon reasonable request, but at least once per year, you shall certify to Ingres the number of machines, users and/or CPUs for which Licensee has purchased the licenses. Upon reasonable request, Ingres shall have the right to conduct, during normal business hours (but not more than once in any 12-month period), an audit of Licensee’s records related to this Agreement to verify compliance with the terms of this Agreement and the Support Agreement. Licensee shall promptly pay to Ingres any fees due to Ingres as shown by such audit, as well as auditor fees for those audits revealing under-reporting in excess of 5% during the audited period. The amount of underpayment will be determined by multiplying the number of underreported machines, users and/or CPUs, as applicable, by the applicable license and support fees for each such machine, users and/or CPUs, as applicable.

5. DATA RIGHTS. Ingres Software contains functions for collecting information related to your use of the Software Product. Ingres may also collect and track non-personally identifiable information about you including but not limited to your IP address, the type of hardware you use and the type of browser you employ. Ingres reserves the right to compile, save, use within the scope of Ingres activities, and analyze any and all of your data (registration data, and use history). Ingres intends to use such data for internal purposes only. Ingres may provide aggregated statistics about your use of the Software to third parties, but such information will be aggregated so that it does not identify a particular individual or company.

6. NO WARRANTY. INGRES MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SPECIFICALLY DISCLAIMS ALL WARRANTIES OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH REGARDS TO THE SOFTWARE PRODUCT. IF SUCH DISCLAIMER OF ANY IMPLIED WARRANTY IS NOT PERMITTED BY LAW, THE DURATION OF ANY SUCH IMPLIED WARRANTY IS LIMITED TO NINETY (90) DAYS FROM THE DATE OF ORIGINAL PURCHASE OR DOWNLOAD. SOME JURISDICTIONS DO NOT ALLOW SUCH EXCLUSIONS OR LIMITATIONS, SO THEY MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION.

7. NO LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL INGRES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, GOODWILL, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, BREACH OF COMPUTER SECURITY SYSTEMS OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF INGRES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SOFTWARE IS PROVIDED "AS IS", AND INGRES DOES NOT GUARANTEE THAT THE SOFTWARE PRODUCT OR THE WEBSITE WILL MEET "ANY OR ALL" OF YOUR REQUIREMENTS, OR ALL REQUIREMENTS OF THE SOFTWARE OR HARDWARE WITH WHICH IT INTERACTS. IN ANY CASE, INGRES’ ENTIRE LIABILITY UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE or US$5.00, WHICHEVER IS GREATER. SOME JURISDICTIONS DO NOT ALLOW THESE EXCLUSIONS OR LIMITATIONS, SO SUCH EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. THE ABOVE LIMITATIONS WILL NOT APPLY IN CASE OF PERSONAL INJURY IN COUNTRIES OTHER THAN THE U.S.A. AND CANADA ONLY IF AND TO THE EXTENT THAT SUCH LIMITATIONS ARE EXPRESSLY PROHIBITED BY APPLICABLE LAW.

8. COPYRIGHT. You acknowledge that the Ingres Software Application and any related materials, and all associated intellectual property rights, including but not limited to any images, photographs, animations, video, audio, music, text, or "applets", as well as the overall "look and feel", will remain the exclusive property of Ingres or its suppliers, and you will not acquire any rights to the Ingres Software Application or the Software Product except as expressly set forth above.

9. HAZARDOUS USE. The Ingres Icebreaker Business Intelligence Appliance is not designed, made, or intended for use in an application where failure, malfunction or inaccuracy may cause death, serious bodily injury, including, without limitation, medical equipment, nuclear facilities, aircraft operation, air traffic control, and life support. Any such use is prohibited without the prior written consent of Ingres. You agree that neither Ingres nor its suppliers will be liable, in whole or in part, for any claims, losses, costs or damages arising out of or in connection with the use and performance of the Ingres Icebreaker Business Intelligence Application in such scenarios. If you use the Ingres Icebreaker Business Intelligence Appliance for such applications without Ingres’ consent, you agree to indemnify, defend and hold Ingres harmless from all claims, actions, losses, liabilities, damages, costs and expenses (including attorneys fees) arising out of or relating to such prohibited uses.

10. SEVERABILITY. In the event of invalidity of any provision of this EULA, the parties agree that such invalidity shall not affect the validity of the remaining portions of this EULA.

11. TERMINATION. You may terminate this EULA at any time. Ingres may terminate this EULA if you or others in your organization fail to comply with the terms and conditions of this EULA. Upon termination by either party, all rights to use the Ingres Software Application or the Software Product will cease, and you will promptly destroy all copies of the Software. Your termination of this EULA will not entitle you to a refund of any portion of the price paid for a Software.

12. ENTIRE AGREEMENT AND GOVERNING LAW. This EULA constitutes the entire agreement between you and Ingres and supersedes any other communication or advertising with respect to the Software. This EULA shall be governed by and construed and enforced in accordance with the laws of the State of California without reference to conflict of laws principles. The parties hereby submit to the exclusive jurisdiction of the federal courts located in the Northern District of California, or in the state courts of San Mateo County. The United Nations Convention on Contracts for the International Sales of Goods is specifically disclaimed.

13. TAXES. The amounts set forth on any Order Form are exclusive of any tariffs, duties or taxes imposed or levied by any government or governmental agency including, without limitation, federal, state and local sales, use, value added and personal property taxes and you agree to pay any such tariffs, duties or taxes (other than franchise and income taxes for which Ingres is responsible) upon presentation of invoices by Ingres. Any claimed exemption from such tariffs, duties or taxes must be supported by proper documentary evidence delivered to Ingres.

14. EXPORT CONTROLS. You agree that you strictly comply with all laws and regulations pertaining to export and that you will not directly or indirectly export the Software or any related technical data in violation of the Export Administration Regulations of the U.S. Department of Commerce and the export or import laws of other countries. You agree it is your responsibility to obtain such licenses to export, re-export, or import as may be required after delivery to you. You further agree that you will not export, re-export, divert or transfer the Software into, or to (a) a national or resident of, any country to which the United States has embargoed goods, (b) to anyone included on the U.S. Government List of Specially Designated Nationals, the Table of Denial Orders or the Entity List,or (c) to anyone involved in the manufacture and proliferation of weapons in violation of U.S. applicable laws. By using the Ingres Icebreaker Business Intelligence Appliance, you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such lists, or involved in any such activities.

15. U.S. GOVERNMENT RIGHTS. If you are an agency or instrumentality of the United States Government, the Ingres Software Application is "commercial computer software" and "commercial computer software documentation", and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, the use, reproduction and disclosure of the Ingres Software Application are governed by the terms of this EULA.

READ THIS AGREEMENT BEFORE INSTALLING THE SOFTWARE.

THANK YOU FOR CHOOSING THIS JASPERSOFT SOFTWARE PRODUCT. BY CLICKING ON THE "I AGREE" BUTTON OR BY DOWNLOADING OR OTHERWISE INSTALLING THE SOFTWARE, YOU ("LICENSEE" or "YOU") ARE AGREEING TO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THIS AGREEMENT, PLEASE CONTACT YOUR SALES REPRESENTATIVE. IN THIS AGREEMENT, "JASPERSOFT" MEANS JASPERSOFT CORPORATION.

Warning: This computer program is protected by copyright laws and international treaties. Unauthorized use, duplication or distribution of this program or any portion of it without the express written consent of JASPERSOFT is strictly prohibited. ALL RIGHTS RESERVED.

JASPERSOFT and other trademarks relating to JASPERSOFT Software are the property of JASPERSOFT. Any other trademarks are for identification purposes only and are the property of their respective owners.

U.S. GOVERNMENT END-USERS:

This Software Product and the Related Materials are "commercial items" as that term is defined in 48 C.F.R. 2.101 (October 1995) consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 (September 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1, 227.7202-3 and 227.7202-4 (June 1995), if the licensee hereunder is the U.S. Government or any agency or department thereof, the Software and the Related Materials are licensed hereunder (i) only as a commercial item, and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions of the Agreement.

TERMS AND CONDITIONS

1. Grant of License. Subject to the terms and conditions contained in this Agreement, JASPERSOFT hereby grants Licensee, beginning on the date Licensee first downloads the JASPERSOFT Software (the "Effective Date") and during the term specified in Section 9, a non¬-exclusive, non-transferable, non-assignable, non-sublicensable, worldwide license to use and modify, solely for internal business purposes (including use by external users, namely employees, customers, and partners), the source and/or object code of the JASPERSOFT Software. The JASPERSOFT Software may not be distributed to any other person or entity.

2. Proprietary Rights. Licensee acknowledges that JASPERSOFT controls all right, title and interest in JASPERSOFT Software and all intellectual property rights relating thereto. The JASPERSOFT Software is the valuable intellectual property of JASPERSOFT and constitutes confidential and proprietary information of JASPERSOFT. JASPERSOFT does not grant to Licensee any other right or license, either express or implied, in the JASPERSOFT Software except as specified in this Agreement, and Licensee's use of the JASPERSOFT Software shall be subject to the restrictions set forth in this Agreement. The Parties expressly acknowledge that "JASPERSOFT" and "JasperServer" are trademarks of JASPERSOFT.

3. Ownership of Modifications. Licensee shall retain ownership of its copyrights in its modifications to JASPERSOFT Software. This Agreement imposes no obligation for Licensee to disclose the source code of its modifications. However, if Licensee elects to disclose publicly the source code of those modifications, that disclosure may be made only under the terms and conditions of the applicable open source license.

4. Enhancements and Upgrades. During the term of this Agreement, JASPERSOFT shall provide to Licensee enhancements and upgrades, if any, of the open source reporting server of the JASPERSOFT Software it makes generally available, free of additional charge.

5. Export Control. Licensee will comply with all relevant laws and regulations regarding export of JASPERSOFT Software. Licensee shall indemnify and hold JASPERSOFT harmless from any claim arising out of a breach of this Section.

6. Payment Terms. Amounts due shall be considered paid when JASPERSOFT is in receipt of the amount due or upon confirmation of receipt by a bank designated by JASPERSOFT. All payments hereunder shall be in U.S. dollars. Annual Subscription Fees are exclusive of, and Customer shall pay for, if applicable: shipping; any sales, use, property, value added or similar taxes; federal, state or local or other charges imposed on or with respect to the JASPERSOFT Software or its delivery, use or possession; but not including taxes based upon the net income of JASPERSOFT. For all payments not received within thirty (30) days of the due date, a late payment fee shall accrue daily on such unpaid amounts at the rate of one-and-one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is lower. JASPERSOFT shall also be entitled to any reasonable collection costs, including attorneys' fees.

7. Warranty and Liability. JASPERSOFT expressly warrants that it is the owner or licensee of JASPERSOFT Software, including any and all copyrights and trade secrets, and has the right and authority to enter into this Agreement and to license JASPERSOFT Software to Licensee in accordance with the terms herein as of the Effective Date. JASPERSOFT expressly warrants that it is not aware of any claim that JASPERSOFT Software infringes any rights of any third party. JASPERSOFT expressly warrants that the performance of the rights and obligations set forth under this Agreement will not breach any other agreement or arrangement by which JASPERSOFT is bound.

EXCEPT AS PROVIDED IN THIS SECTION, ALL SOFTWARE PROVIDED HEREUNDER IS PROVIDED "AS IS."

THE FOREGOING WARRANTIES ARE EXCLUSIVE OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

IN NO EVENT SHALL JASPERSOFT BE LIABLE TO LICENSEE OR ANY THIRD PARTY OR END USER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR CONTINGENT DAMAGES INCLUDING LOSS OF PROFITS, OR ANY AMOUNTS IN EXCESS OF THE FEES ACTUALLY PAID TO JASPERSOFT BY LICENSEE (THE FOREGOING BEING COLLECTIVELY CALLED "DAMAGES") INCURRED BY LICENSEE OR ANY OTHER THIRD PARTY. SUCH NON-LIABILITY FOR DAMAGES SHALL APPLY WHETHER IN AN ACTION BASED ON CONTRACT, TORT OR ANY OTHER SUCH THEORY, EVEN IF JASPERSOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. Term of Agreement. This Agreement and the licenses granted hereunder shall remain in effect for a period of one (1) year from the Effective Date, unless earlier terminated as set forth herein.

9. Termination of Agreement. JASPERSOFT may terminate this Agreement and the licenses granted hereunder, upon written notice for any material breach of this Agreement that Licensee fails to cure within sixty (60) days following written notice specifying such breach. Licensee may terminate this Agreement and the licenses granted hereunder upon written notice for any material breach of this Agreement that JASPERSOFT fails to cure within sixty (60) days following the written notice specifying such breach. Under no circumstances shall Licensee be entitled to a refund of any license fees. In the event of termination of this Agreement for any cause, all rights granted hereunder automatically revert to the granting Party.

10. No Agency. The Parties are independent contractors. Neither Party is an employee, agent, joint venturer or legal representative of the other Party for any purpose. Neither Party shall have the authority to enter into any legal or equitable obligation for the other Party. Under no circumstances may either Party hold itself out to have agency authority for the other Party. The Parties agree not to make false or misleading statements, claims or representations about the other Party, its products or the relationship between the Parties.

11. Governing Law. This Agreement is in accordance with, and shall be governed by and construed under, the laws of the State of California and applicable United States statutes. Such governance and construction explicitly excludes the State of California’s body of laws governing conflict of laws and the 1980 United Nations Convention on Contracts for the International Sale of Goods. To the extent permitted by law, the provisions of this Agreement shall supersede any provisions of the Uniform Commercial Code as adopted or made applicable to this Agreement in any competent jurisdiction.

12. Waiver. The Party entitled to the benefit of any provision of this Agreement may waive said provision. Neither Party shall be deemed, by any act or omission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by an authorized officer of such Party. Such a waiver shall be limited specifically to the extent set forth in said writing. Waiver as to one event shall not be construed as waiver of any right or remedy as it relates to any subsequent event.

15. Force Majeure. If by reason of Force Majeure including, without limitation, earthquakes, governmental regulation, fire, flood, labor difficulties, civil disorder and all acts of God, a Party is unable to perform in whole or in part its obligations as set forth in this Agreement, except for payment obligations, such Party shall not be liable to the other for its failure to perform said obligations.

16. Severability. If the application of any provision or provisions of this Agreement to any particular set of facts or circumstances is held to be invalid or unenforceable by a court of competent jurisdiction, the validity of said provision or provisions to any other particular set of facts or circumstances shall not, in any way, be affected. Such provision or provisions shall be reformed without further action by the Parties to the extent necessary to make such provision or provisions enforceable when applied to that set of facts or circumstances.

17. Affirmative Action/Equal Opportunity Employer. JASPERSOFT is an Affirmative Action/equal employment opportunity employer who will employ qualified individuals with disabilities and qualified protected veterans.

18. Survival. The following sections shall survive the termination of this Agreement for any cause: 2, 3, 5, 7 and 11.

19. Rules of Construction. As used in this Agreement, all terms used in the singular shall be deemed to include the plural, and vice versa, as the context requires. Descriptive headings are inserted for convenience only and shall not be utilized in interpreting this Agreement.

20. Amendment. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party.

21. Entire Agreement. The Parties, and each of them, represent and warrant that this Agreement constitutes the complete and exclusive agreement between the Parties. Said Agreement supersedes all previous or contemporaneous agreements, understandings and representations, written or oral, with respect to the subject matter of this Agreement.

rPath Software End User License Agreement

REDISTRIBUTION NOT PERMITTED

IMPORTANT -- READ CAREFULLY BEFORE USING THIS SOFTWARE:

Upon the use of any rPath Software Application ("Software") or any appliance in which the Software may be embedded, End User acknowledges that End User has reviewed and agreed to all of the terms and conditions set forth in this document. If End User DOES NOT AGREE with these terms and conditions, DO NOT USE the Software.

As used herein, the following terms have the meanings set forth below:

"End User" means the purchasers or licensees who have acquired the Software for their own personal or internal use and without the right to resale, re-market or otherwise distribute the Software.

"EULA" means an end user license agreement. This EULA is a legal agreement between you (either an individual or an entity) and rPath, Inc. and its suppliers and licensors (collectively "rPath") for the rPath Software which may include components provided by suppliers and licensors to rPath. "Software" means the object code versions of the product, together with the updates, upgrades, modifications or enhancements owned and provided by rPath to you pursuant to this EULA.

BY USING THE SOFTWARE YOU ACKNOWLEDGE THAT YOU HAVE READ THIS LICENSE AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.

This EULA applies to Software applications that are made up of individual software components, each of which was individually written and copyrighted. Some of the components of the Software have their own applicable EULAs. Those EULAs are located at www.rpath.com/permanent/licenses. ANY THIRD PARTY SOFTWARE, INCLUDING ANY THIRD PARTY'S PLUG-IN, THAT MAY BE PROVIDED WITH THE SOFTWARE IS INCLUDED FOR USE AT YOUR OPTION. IF YOU CHOOSE TO USE SUCH THIRD PARTY SOFTWARE, THEN SUCH USE SHALL BE GOVERNED BY SUCH THIRD PARTY'S LICENSE AGREEMENT. rPath IS NOT RESPONSIBLE FOR ANY THIRD PARTY'S SOFTWARE AND SHALL HAVE NO LIABILITY FOR YOUR USE OF THIRD PARTY SOFTWARE.

The third-party components contained in this Software may include or contain software licensed under the following licenses, Apache License 2.0, CPL, the rPath Commercial License, GNU General Public License ("GPL"), Lesser GNU General Public License, DB license, IBM License, CRACKLIB, and the Commercial Redistribution License ("Open Source Programs"). These Open Source Programs are licensed pursuant to a EULA that permits the End User to copy, modify, and redistribute the software, in both source code and binary code forms. These EULAs can be located at www.rpath.com/permanent/licenses. Nothing in this EULA limits End User’s rights under, or grants the End User rights that supersede, the terms of any applicable Open Source Program EULA.

The Software is a collective work under U.S. Copyright Law. rPath hereby grants End User the following license to use the Software in the End User’s facility subject to the terms contained herein subject to the licenses referenced herein.

1. GRANT OF LICENSE. Upon payment of any fees applicable, rPath hereby grants to you a non-exclusive, personal license to use the Software and any related documentation ("Documentation") subject to the following terms:

a) For each entitlement that you purchase, you may: (i) use the Software on any single Computer; and (ii) copy the Software for back-up and archival purposes, provided any copy must contain all of the original Software's proprietary notices within the United States and its territories or any other country to which this Software can legally be exported.

b) The Software is "in use" on a computer when it is loaded into temporary memory or installed in permanent memory (Hard Drive, CD-ROM or other storage device). You agree to use your best efforts to prevent and protect the contents of the Software and Documentation from unauthorized use or disclosure. You agree that you will register this Software and its Serial Number only with rPath and that you will only install a Software entitlement obtained directly from rPath.

2. LICENSE RESTRICTIONS.

a) You may not: (i) permit other individuals to use the Software except under the terms listed above; (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon the Software or Documentation; (iii) copy the Software or Documentation (except for back-up or archival purposes); (iv) rent, lease, transfer, or otherwise transfer rights to the Software or Documentation; (v) remove any proprietary notices or labels on the Software or Documentation. Any such forbidden use shall immediately terminate your license to the Software. The recording, playback and download features of the Software are intended only for use with public domain or properly licensed content and content creation tools. You may require a patent, copyright, or other license from a third party to create, copy, download, record or save content files for playback by this Software or to serve or distribute such files to be played back by the Software.

b) You agree that you shall only use the Software and Documentation in a manner that complies with all applicable laws in the jurisdictions in which you use the Software and Documentation, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.

3. TITLE. Title, ownership, rights, and intellectual property rights in and to the Software and Documentation shall remain rPath’s and/or its suppliers. The Software and the Documentation are protected by the copyright laws of the United States and international copyright treaties. Title, ownership rights and intellectual property rights in and to the content accessed through the Software and the Documentation ("Content") shall be retained by the applicable Content owner and may be protected by applicable copyright or other law. This EULA gives you no rights to such Content.

4. DATA RIGHTS. You should be aware that rPath’s Software contains functions for collecting information related to your use of the Software. rPath may also collect and track non-personally identifiable information about you including but not limited to your IP address, the type of hardware you use and the type of browser you employ. rPath reserves the right to compile, save, use within the scope of rPath’s activities, and analyze any and all of your data (registration data, and use history). rPath intends to use such data for internal purposes only, including without limitation for the purposes of responding to your requests for information and for contacting you. rPath may provide aggregated statistics about your use of the Software to third parties, but such information will be aggregated so that it does not identify a particular individual or company.

5. NO WARRANTY. THE SOFTWARE IS PROVIDED AND LICENSED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

6. NO LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL rPATH, INC. BE LIABLE TO END USER FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR SOFTWARE PROGRAMS, EVEN IF rPATH, INC. OR A DEALER AUTHORIZED BY rPATH, INC. HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL rPATH HAVE ANY LIABILITY HEREUNDER.

7. COMPLETE AGREEMENT. This EULA constitutes the entire agreement between the parties with respect to the Software and supersedes all prior or contemporaneous communications, agreements and understandings, written or oral, with respect to the subject matter hereof. This EULA shall not be amended or modified except in a writing signed by authorized representatives of each party.

8. GENERAL. If any provision of this EULA is held to be unenforceable, that shall not affect the enforceability of the remaining provisions. This EULA shall be governed by the laws of the State of North Carolina and of the United States, without regard to any conflict of laws provisions, except that the United Nations Convention on the International Sale of Goods shall not apply.

"rPath," "rPath" Logo, "Powered by rPath" Logo, "rPath Appliance Platform" logo, "Conary," "rMake," "rAA," "rEA," "rBuilder," "rBuilder" Logo, and "rManager" are trademarks and service marks that are the property of rPath, Inc.

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