Binary Software Evaluation and Development Agreement Netscape Application Server 4.0 THE EVALUATION AND DEVELOPMENT TERMS SET FORTH BELOW AND THE TERMS OF THE ATTACHED NETSCAPE APPLICATION PRODUCTS END USER LICENSE AGREEMENT (THE "LICENSE AGREEMENT") CONSTITUTE THE "EVALUATION AND DEVELOPMENT AGREEMENT." READ THE TERMS OF THE EVALUATION AND DEVELOPMENT AGREEMENT CAREFULLY BEFORE OPENING THE SOFTWARE MEDIA PACKAGE. BY OPENING THE SOFTWARE MEDIA PACKAGE, THE INDIVIDUAL OR ENTITY LICENSING THE SOFTWARE ("LICENSEE") AGREES TO THE TERMS OF THE EVALUATION AND DEVELOPMENT AGREEMENT. IF LICENSEE IS ACCESSING THE SOFTWARE ELECTRONICALLY, INDICATE LICENSEE'S ACCEPTANCE OF THE TERMS OF THE EVALUATION AND DEVELOPMENT AGREEMENT BY TYPING "YES" WHERE APPLICABLE. IF LICENSEE DOES NOT AGREE TO ALL THE TERMS OF THE EVALUATION AND DEVELOPMENT AGREEMENT, PROMPTLY RETURN THE UNUSED PRODUCT TO LICENSEE'S PLACE OF PURCHASE FOR A REFUND OR, IF THE SOFTWARE IS ACCESSED ELECTRONICALLY, INDICATE LICENSEE'S NON-ACCEPTANCE BY TYPING "NO" WHERE APPLICABLE, AND DO NOT INSTALL OR USE THE SOFTWARE. LICENSEE'S INSTALLATION OR USE OF THE SOFTWARE ACCOMPANYING THE EVALUTION AND DEVELOPMENT AGREEMENT INDICATES THAT LICENSEE ASSENTS TO BE BOUND BY THE TERMS OF THE EVALUATION AND DEVELOPMENT AGREEMENT. Evaluation and Development Terms Capitalized terms not defined herein shall have the same meanings ascribed to them in the License Agreement. These Evaluation and Development Terms will supersede any inconsistent or conflicting terms in the License Agreement. 1. Notwithstanding Section 2 of the Product Terms of the License Agreement, Licensee may use one (1) copy of Application Product (including, but not limited to, libraries, source files, header files and data files) and any user manuals, programming guides and other documentation provided to Licensee by Netscape, solely for the purposes of internally designing, developing, evaluating and testing software products developed by Licensee. Licensee has no right to use the Application Product for productive or commercial uses, and public deployment of the Application Product is strictly prohibited. No license is granted for any other purpose. Licensee may not transfer the Application Product in whole or in part to any third party. 2. The Application Product may contain a time-out feature. Licensee agrees to hold Netscape and its distributors harmless from any claims based on Licensee's use of the Application Product for any purposes. 3. The Evaluation and Development Agreement commences on the date on which Licensee installs the Application Product (the "Effective Date") and will expire one hundred twenty (120) days from the Effective Date, unless terminated as provided herein. Upon expiration, Licensee agrees to immediately cease use of and destroy the Application Product. 4. Neither Netscape nor any of its licensors is under any obligation to support the Application Product or to provide upgrades or error corrections ("Updates") to the Application Product. If Netscape, at its sole option, supplies Application Product Updates to Licensee, the Application Product Updates will be considered part of the Application Product, and subject to the terms of the Evaluation and Development Agreement. Netscape Application Products End User License Agreement Redistribution or Rental Not Permitted The Netscape Application Server software product and documentation accompanying this Agreement and any error corrections provided by Netscape are referred to herein as the "Product" or "Application Product." GENERAL TERMS & CONDITIONS 1. AGREEMENT. The "Agreement" governing Licensee's use of the Product(s) consists of these General License Terms and Conditions ("General Terms"), each set of product specific license terms and conditions which follow ("Product Terms"), and, if provided, the (i) Corporate End User Order Form and Product Schedule or (ii) Quotation and Offer form, as applicable. If more than one license agreement was provided for this Product, and the terms vary, the order of precedence of those license agreements is as follows: a signed agreement, a license agreement available for review on the Netscape website, a printed or electronic agreement that states clearly that it supersedes other agreements, a printed agreement provided with a Product, an electronic agreement provided with a Product. The General Terms apply to all Products on the Product Schedule, and each set of Product Terms applies only to the individual Products identified in the Product Terms sheet. All Products are licensed independently of one another. As used in this Agreement, for residents of Europe, the Middle East or Africa, "Netscape" shall mean Netscape Communications Ireland Limited; for residents of Japan, "Netscape" shall mean Netscape Communications (Japan), Ltd.; for residents of all other countries, "Netscape" shall mean Netscape Communications Corporation. In this Agreement "Licensor" shall mean Netscape except: (i) if Licensee acquired the Product as a bundled component of a third party product or service, then such third party shall be Licensor; or (ii) if any third party software is included with a Product without any license agreement in any form (no license in the installer, as an electronic file or in the box in printed form), then the use of such third party software shall be governed by this Agreement, and the term "Licensor," with respect to such third party software, shall mean the copyright holder of that software and not Netscape. If a third party license agreement is provided, then the use of the third party software product shall be governed by such third party license agreement and not by this Agreement. Any third party software provided together with a Product is included for use at Licensee's option. 2. TERM AND TERMINATION. This Agreement shall remain in effect until terminated in accordance with this Section or as otherwise provided in this Agreement. Licensee may terminate this Agreement at any time by written notice to Licensor. Licensor may terminate this Agreement immediately in the event of (i) any breach of Section 6 or 8 by Licensee or (ii) a material breach by Licensee which is not cured within 30 days of written notice by Licensor. Upon termination, Licensee shall discontinue use and certify as destroyed, or return to Licensor, all copies of the Product(s). Licensee's obligation to pay accrued charges and fees shall survive any termination of this Agreement. Within 30 calendar days after termination of the Agreement, Licensee shall pay to Licensor all sums then due and owing. 3. FEES AND TAXES. If Licensee is purchasing a license for the Product(s) directly from Netscape, all fees are exclusive of taxes, withholdings, duties or levies (collectively herein "Levies"), however designated or computed, and Licensee shall be responsible for paying all such Levies except for taxes based on Netscape's net income. If Licensee is exempt from such Levies, Licensee shall provide to Netscape a valid tax or other Levy exemption certificate acceptable to the taxing or other levying authority. 4. RECORDS; AUDIT. Licensee shall maintain accurate records as necessary to verify compliance with this Agreement. Licensor may conduct one or more audits to verify such compliance. Audits will be conducted during normal business hours. All audits shall be conducted at Licensor's expense unless the results establish that Licensee has underpaid Licensor by more than 5% of the amount actually due, in which case Licensee shall pay all amounts due and bear the expense of the audit. Licensee acknowledges that Licensor is required by its suppliers of the relational database product provided with certain Products to disclose, and Licensee agrees that Licensor may disclose, the make/model, operating system and number of CPUs of the Designated System(s), as defined in the Product Schedule. 5. PROPRIETARY RIGHTS. Title, ownership rights, and intellectual property rights in the Product(s) shall remain in Netscape and/or its suppliers. Licensee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with Netscape's or its suppliers' ownership of or rights with respect to the Product(s). The Product(s) are protected by copyright and other intellectual property laws and by international treaties. Title and related rights in the content accessed through the Product(s) are the property of the applicable content owner and are protected by applicable law. The license granted under this Agreement gives Licensee no rights to such content. 6. RESTRICTIONS. Except as otherwise expressly permitted in this Agreement, Licensee may not: (i) modify or create any derivative works of any Product or documentation, including translation or localization (Licensee's code written to published APIs (application programming interfaces) for the Product(s) shall not be deemed derivative works); (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for any Product (except to the extent applicable laws specifically prohibit such restriction); (iii) redistribute, encumber, sell, rent, lease, sublicense, use the Products in a timesharing or service bureau arrangement, or otherwise transfer rights to any Product; (iv) copy any Product (except for an archival copy which must be stored on media other than a computer hard drive) or documentation (copies shall contain all the notices regarding proprietary rights that were contained in the Product(s) originally delivered by Licensor); (v) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product(s); (vi) modify any header files or class libraries in any Product; (vii) create or alter tables or reports relating to the database portion of the Product (except as necessary for operating the Product); (viii) publish any results of benchmark tests run on any Product to a third party without Netscape's prior written consent; (ix) use the database provided for use with any Product except in conjunction with the relevant Product; or (x) use any Product on a system with more CPUs than the number licensed, by more Users than have been licensed, on more computers than the number licensed, or by more developers than the number licensed, as applicable. 7. LIMITED WARRANTY. Provided Licensee has paid the applicable license fees for the Product(s), for 90 days after the date of shipment to Licensee (date of shipment meaning either the date Licensor shipped the Product on media or the date on which Licensee downloaded the Product from an authorized Netscape download site) of each Product (the "Warranty Period"), Licensor warrants that (i) the media on which the Product is delivered will be free of defects in material and workmanship under normal use; and (ii) the unmodified Product, when properly installed and used, will substantially achieve the functionality described in the applicable documentation. THE EXPRESS WARRANTY SET FORTH HEREIN CONSTITUTES THE ONLY WARRANTY WITH RESPECT TO THE PRODUCT(S). LICENSOR AND ITS SUPPLIERS DO NOT MAKE, AND HEREBY EXCLUDE, ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) WITH RESPECT TO ANY PRODUCT OR TEST DATA INCLUDED IN ANY PRODUCT. LICENSOR AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD PARTIES' RIGHTS. LICENSOR AND ITS SUPPLIERS DO NOT WARRANT THAT THE PRODUCT(S) WILL MEET LICENSEE'S REQUIREMENTS OR WILL OPERATE IN THE COMBINATIONS WHICH MAY BE SELECTED BY LICENSEE OR THAT THE OPERATION OF THE PRODUCT(S) WILL BE SECURE, ERROR-FREE OR UNINTERRUPTED AND LICENSOR HEREBY DISCLAIMS ANY AND ALL LIABILITY ON ACCOUNT THEREOF. THE SECURITY MECHANISMS IMPLEMENTED BY THE PRODUCT(S) HAVE INHERENT LIMITATIONS, AND LICENSEE MUST DETERMINE THAT THE PRODUCT(S) SUFFICIENTLY MEET LICENSEE'S REQUIREMENTS. LICENSOR AND ITS SUPPLIERS SHALL HAVE NO OBLIGATIONS UNDER THE WARRANTY PROVISIONS SET FORTH HEREIN IF LICENSEE SUBJECTS THE MEDIA TO ACCIDENT OR ABUSE; ALTERS, MODIFIES OR MISUSES THE PRODUCT(S); USES THE PRODUCT(S) INCORPORATED, ATTACHED OR IN COMBINATION WITH NON-NETSCAPE SOFTWARE OR ON ANY COMPUTER SYSTEM OTHER THAN THAT FOR WHICH THE PRODUCT IS INTENDED; OR LICENSEE VIOLATES THE TERMS OF THIS AGREEMENT. THE EXTENT OF LICENSOR'S DUTY UNDER THIS LIMITED WARRANTY SHALL BE THE CORRECTION OR REPLACEMENT OF ANY PRODUCT WHICH FAILS TO MEET THIS WARRANTY. IN THE EVENT OF A BREACH OF THIS WARRANTY, AND IF LICENSEE PROVIDES LICENSOR WITH A WRITTEN REPORT DURING THE WARRANTY PERIOD, LICENSOR WILL USE REASONABLE EFFORTS TO CORRECT OR REPLACE PROMPTLY, AT NO CHARGE TO LICENSEE, THE ERRORS OR FAILURES. THIS IS LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTIES HEREUNDER. NOTWITHSTANDING THE FOREGOING, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES; HOWEVER, THE EXCLUSIONS OF LICENSOR'S WARRANTY IN THIS LIMITED WARRANTY SECTION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. THIS AGREEMENT DOES NOT EXCLUDE ANY WARRANTIES THAT MAY NOT BE EXCLUDED BY LAW AND ANY LIABILITY ARISING HEREUNDER SHALL BE LIMITED TO THE CORRECTION OR REPLACEMENT OF THE APPLICABLE PRODUCT, AT LICENSOR'S OPTION. 8. CONFIDENTIALITY. "Confidential Information" shall mean this Agreement, if the terms have been negotiated, pricing information, and all information a party discloses to the other which has been either (i) characterized in writing as confidential at the time of its disclosure or (ii) orally characterized as confidential at the time of disclosure, except for information which the receiving party can demonstrate: (a) is previously rightfully known to the receiving party without restriction on disclosure; (b) is or becomes, from no act or failure to act on the part of the receiving party, generally known in the relevant industry or public domain; (c) is disclosed to the receiving party by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by the receiving party without access to the Confidential Information. Each receiving party shall at all times, both during the term hereof and for a period of at least 3 years after termination, keep in confidence all such Confidential Information using a standard of care such party uses with its own information of this nature, but in no event less than reasonable care. The receiving party shall not use any Confidential Information other than in the course of its permitted activities hereunder. Without the prior written consent of the disclosing party, the receiving party shall not disclose any Confidential Information except on a "need to know" basis to an employee or contractor under binding obligations of confidentiality substantially similar to those set forth herein. If a receiving party is legally compelled to disclose any of the disclosing party's Confidential Information, then, prior to such disclosure, the receiving party will (i) assert the privileged and confidential nature of the Confidential Information and (ii) cooperate fully with the disclosing party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, the receiving party shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements. 9. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (OR ANY DIRECT DAMAGES WITH RESPECT SOLELY TO ANY DATABASE PRODUCT PROVIDED WITH THE PRODUCT) ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE LICENSE FEES LICENSEE PAID TO LICENSOR FOR THE PRODUCT GIVING RISE TO SUCH DAMAGES, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF LICENSOR TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. LICENSOR IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY THAT IS ACCESSED THROUGH THE PRODUCT AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT. ANY DATA INCLUDED IN A PRODUCT UPON SHIPMENT FROM LICENSOR IS FOR TESTING USE ONLY AND LICENSOR HEREBY DISCLAIMS ANY AND ALL LIABILITY ARISING THEREFROM. THE EXTENT OF LICENSOR'S LIABILITY FOR THE LIMITED WARRANTY SECTION SHALL BE AS SET FORTH THEREIN. 10. ENCRYPTION. If Licensee wishes to use the cryptographic features of any Product, then Licensee may need to obtain and install a signed digital certificate from a certificate authority or a certificate server in order to utilize the cryptographic features. Licensee may be charged additional fees for certification services. Licensee is responsible for maintaining the security of the environment in which the Product is used and the integrity of the private key file used with the Product. In addition, the use of digital certificates is subject to the terms specified by the certificate provider, and there are inherent limitations in the capabilities of digital certificates. If Licensee is sending or receiving digital certificates, Licensee is responsible for familiarizing itself with and evaluating such terms and limitations. If the Product is a version with FORTEZZA, Licensee will need to obtain PC Card Readers and FORTEZZA Crypto Cards from another vendor to enable the FORTEZZA features. 11. EXPORT CONTROL. Licensee agrees to comply with all export laws and restrictions and regulations of any United States or foreign agency or authority, and not to export or re-export any Product or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. As applicable, each party shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to its own export of the Product from the U.S. Licensee acknowledges that neither the Product nor the underlying information or technology may be downloaded or otherwise exported or re-exported (i) into Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country subject to U.S. trade sanctions covering the Product, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department's Table of Denial Orders. By downloading or using the Product, Licensee represents and warrants that it complies with these conditions. If the Product(s) are identified as being not-for-export (for example, on the box, media or in the installation process), then, unless Licensee has an exemption from the United States government, the following applies: EXCEPT FOR EXPORT TO CANADA FOR USE IN CANADA BY CANADIAN CITIZENS, THE PRODUCT(S) AND ANY UNDERLYING ENCRYPTION TECHNOLOGY MAY NOT BE EXPORTED OUTSIDE THE UNITED STATES OR TO ANY FOREIGN ENTITY OR "FOREIGN PERSON" AS DEFINED BY U.S. GOVERNMENT REGULATIONS, INCLUDING WITHOUT LIMITATION, ANYONE WHO IS NOT A CITIZEN, NATIONAL OR LAWFUL PERMANENT RESIDENT OF THE UNITED STATES. BY DOWNLOADING OR USING THE SOFTWARE, LICENSEE AGREES TO THE FOREGOING AND WARRANTS THAT IT IS NOT A "FOREIGN PERSON" OR UNDER THE CONTROL OF A "FOREIGN PERSON." 12. HIGH RISK ACTIVITIES. The Product(s) are not fault-tolerant and are not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of any Product could lead directly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). Accordingly, Licensor and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities. Licensee agrees that Licensor and its suppliers will not be liable for any claims or damages arising from the use of any Product in such applications. 13. U.S. GOVERNMENT END USERS. The Product is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Product with only those rights set forth herein. 14. PURCHASE ORDERS. Licensee shall place written purchase orders for additional unit licenses. If Licensee is purchasing such licenses from Licensor, the purchase orders shall include the following information: (i) reference to the Agreement number on the Order Form, if applicable; (ii) description of each Product ordered, quantity and price; (iii) shipping instructions and destination; (iv) requested delivery date; (v) bill to address; and (vi) restatement of the payment terms on the Product Schedule, if applicable. 15. NOTICES. Any notice required or permitted hereunder shall be in English, in writing and shall be deemed to be properly given upon the earlier of (i) actual receipt by the addressee (including facsimile or e-mail) or (ii) 5 business days after deposit in the mail, postage prepaid, when mailed by registered or certified airmail, return receipt requested, or (iii) 2 business days after being sent via private industry courier to the respective parties at the addresses set forth in the Order Form or to such other person or address as the parties may designate in a writing. Notices to Licensor shall be to the attention of the Legal Department, at Netscape Communications Corporation, 501 East Middlefield Road, Mountain View, CA 94043, USA. 16. MISCELLANEOUS. (a) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and communications, whether oral or written, between the parties relating to the subject matter hereof, and all past courses of dealing or industry custom. The terms and conditions hereof shall prevail exclusively over any written instrument submitted by Licensee, including purchase order, and Licensee hereby disclaims any terms therein, except for terms therein relating to product description, quantity thereof, pricing therefor, shipment and delivery. (b) This Agreement may be amended only by a writing signed by an executive vice president of Netscape and a duly authorized representative of Licensee. (c) Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of the State of California, U.S.A., excluding its conflict of law provisions. (d) Any dispute hereunder will be negotiated between the parties commencing upon written notice from one party to the other. Settlement discussions and materials will be confidential and inadmissible in any subsequent proceeding without both parties' written consent. If the dispute is not resolved by negotiation within 45 days following such notice, the parties will refer the dispute to non-binding mediation conducted by JAMS Endispute in Santa Clara County, California (the "Venue"). The parties will share the costs of mediation. If the dispute is not resolved after 45 days of mediation, the parties will refer the dispute to binding arbitration by JAMS Endispute in the Venue. The results of any arbitration will be final and non-appealable, except that either party may petition any court of competent jurisdiction in the Venue to review any decision relating to intellectual property matters (including the scope of license rights), vacating or modifying erroneous conclusions of law or findings of fact not supported by substantial evidence. The arbitrator may fashion any legal or equitable remedy except punitive or exemplary damages, which both parties hereby waive. The arbitrator will render a written decision, which may be entered in and enforced by any court of competent jurisdiction, but which will have no preclusive effect in other matters involving third parties. The losing party will pay the costs of the arbitration and the reasonable legal fees and expenses of the prevailing party, as determined by the arbitrator. The parties will jointly pay arbitration costs pending a final allocation by the arbitrator. At any point in the dispute resolution process, either party may seek injunctive relief preserving the status quo pending the outcome of that process. Except as noted, the parties hereby waive any right to judicial process. The U.S. Arbitration Act and JAMS Endispute rules will govern the arbitration process. Absent fraudulent concealment, neither party may raise a claim more than 3 years after it arises or any shorter period provided by applicable statutes of limitations. Notwithstanding the foregoing, Licensor reserves the right to invoke the jurisdiction of any competent court to remedy or prevent violation of any provision in the Agreement relating to payment, Netscape Confidential Information or Netscape intellectual property. (e) If any dispute arises under this Agreement, the prevailing party shall be reimbursed by the other party for any and all legal fees and costs associated therewith. (f) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (g) If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect. (h) The controlling language of this Agreement is English. If Licensee has received a translation into another language, it has been provided for Licensee's convenience only. (i) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (j) The provisions of this Agreement which require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination. (k) Licensee may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein without the prior express written consent of Licensor, which will not be unreasonably withheld. (l) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (m) If applicable, this Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. (n) Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control. (o) The relationship between Licensor and Licensee is that of independent contractors and neither Licensee nor its agents shall have any authority to bind Licensor in any way. (p) Netscape and its suppliers are direct and intended third party beneficiaries of this Agreement. (q) If any Netscape professional services are being provided, then such professional services are provided pursuant to the terms of a separate Professional Services Agreement between Netscape and Licensee. The parties acknowledge that such services are acquired independently of the Products licensed hereunder, and that provision of such services is not essential to the functionality of such Products. (r) The headings to the sections of this Agreement are used for convenience only and shall have no substantive meaning. (s) Licensor may use Licensee's name in any customer reference list or in any press release issued by Licensor regarding the licensing of the Product and/or provide Licensee's name and the names of the Products licensed by Licensee to third parties. 17. LICENSEE OUTSIDE THE U.S. If Licensee is located outside the U.S., then the provisions of this Section shall apply. (i) If Licensee is purchasing licenses directly from Netscape and if Netscape and Licensee are not located in the same country, then, if any applicable law requires Licensee to withhold amounts from any payments to Netscape hereunder Licensee shall effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Netscape with tax receipts evidencing the payments of such amounts, and the sum payable by Licensee upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after such deduction or withholding, Netscape receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Netscape would have received and retained absent such required deduction or withholding. (ii) Les parties aux prÈsentÈs confirment leur volontÈ que cette convention de mÍme que tous les documents y compris tout avis qui s'y rattachÈ, soient redigÈs en langue anglaise. (translation: "The parties confirm that this Agreement and all related documentation is and will be in the English language.") (iii) Licensee is responsible for complying with any local laws in its jurisdiction which might impact its right to import, export or use the Product(s), and Licensee represents that it has complied with any regulations or registration procedures required by applicable law to make this license enforceable. NETSCAPE APPLICATION PRODUCTS TERMS AND CONDITIONS 1. AGREEMENT. The Agreement governing Licensee's use of the Product(s) identified above ("Application Products") consists of these Netscape Application Products Terms and Conditions, the General Terms, and, if provided, the (i) Corporate End User Order Form and Product Schedule or (ii) Quotation and Offer form, as applicable. 2. LICENSE GRANT . Subject to payment of applicable license fees, Licensor grants Licensee a non-exclusive and non-transferable license to use the executable code version of the Application Product(s) and accompanying documentation in the territory of use allowed under the license fee paid by Licensee (the "Territory"), according to the terms and conditions of this Agreement. Licensee may: a. If Licensee has purchased a per-CPU license, use Netscape Application Server and any Netscape Application Extensions that it has licensed on the specific Designated System(s) identified in the Product Schedule, or temporarily on a backup Designated System if a specified Designated System is inoperative. b. If Licensee has purchased a per-user license for Netscape Application Server for R/3, allow execution of the applications running on Netscape Application Server for R/3 by the number of Users indicated on the Product Schedule. License fees must be paid for all Users who may execute applications running on Netscape Application Server for R/3, not just the number who may execute those applications concurrently. Additional fees are required prior to allowing additional Users to execute applications. Licensee may reproduce, without change, the number of copies of Netscape Application Server for R/3 necessary to support the number of Users licensed. c. Allow use of Netscape Application Server Developer Edition, Netscape Application Builder and Netscape Extension Builder by the number of developers indicated on the Product Schedule for the purpose of developing components and applications to be deployed on Netscape Application Server. Netscape Application Server Developer Edition or Netscape Application Builder may not be used to host production applications. To host production applications, Licensee must purchase Netscape Application Server licenses. d. Install the C++ OCL Client Kit on the number of computers identified in the Product Schedule. e. If Licensee has purchased a per-CPU license, add CPUs to the Designated System(s) or transfer Netscape Application Server or any Netscape Application Extensions to another Designated System so long as Licensee pays Licensor's then-current per CPU license fees for any additional CPUs, and provides Licensor with the make, model, operating system and number of CPUs of the new or reconfigured Designated System. f. Copy the documentation, without change, as necessary to fully utilize the Application Product(s), provided the copies contain all of the original proprietary notices. g. Use any Netscape or third party products bundled with an Application Product only in conjunction with that Application Product (and the applications that run on Netscape Application Server), and not with other software products or on a stand-alone basis. Except for this restriction, the use of each such bundled product shall be governed by its license agreement. h. If an Application Product contains header files or class libraries, copy and use the header files and class libraries solely to create and distribute programs to interface with the Application Product's API's. Licensee may not modify the header files or class libraries. i. If an Application Product includes Netscape Enterprise Server software bundled or embedded, it can be used only in conjunction with such Application Products, and not with other software products or on a stand-alone basis. j. If an Application Product includes Netscape Directory Server software bundled or embedded, Licensee may use such Netscape Directory Server software for storage of an: 1) unlimited number of usernames, passwords, and group IDs required by the Netscape Application Server applications, 2) unlimited amount of Application Products configuration information, and 3) unlimited amount of configuration information for Netscape Application Server applications. Storage of any user information (including but not limited to contact information and user preferences) in addition to usernames, passwords and group IDs, or access to Netscape Directory Server software from other software products on a stand-alone basis requires purchase of a Netscape Directory Server license. 3. FEES. For Netscape Application Server and any Netscape Application Extensions that Licensee has licensed, license fees are required for each CPU contained in the Designated System(s) upon which those Application Products are installed, except that if Licensee has purchased a per-user license for Netscape Application Server for R/3 fees are due for each User. For Netscape Application Server Developer Edition, Netscape Application Builder and Netscape Extension Builder, license fees are required for each developer who is using them. For the C++ OCL Client Kit, license fees are required for each computer upon which it is installed. Revised 8/20/99