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License Terms

VIEWTIER SYSTEMS, INC. SOFTWARE LICENSE AGREEMENT

USE OF SOFTWARE ORDERED FROM VIEWTIER SYSTEMS, INC.
("VIEWTIER") IS PROVIDED ONLY UNDER LICENSE FROM VIEWTIER.
PLEASE READ THE FOLLOWING LICENSE CAREFULLY AND INDICATE
YOUR ACCEPTANCE BY CLICKING THE ACCEPTANCE BOX. CERTAIN
CAPITALIZED TERMS ARE DEFINED IN SECTION 11.

1. LICENSE TERMS

a. Evaluation Use. The terms of this Section 1(a) are
applicable to you if you have registered as an Evaluation
customer. Subject to the terms of this Agreement, VIEWTIER
grants to you a non-exclusive, non-transferable, license to
use the evaluation version of the Software solely for
Evaluation Use. Third party software products or modules
supplied by VIEWTIER, if any, may be used solely with the
Software. This license begins upon downloading and ends
thirty days thereafter (the "Evaluation Period"). When the
license expires you must stop using the Software. All rights
not specifically granted to you herein are retained by
VIEWTIER.

b. Development Use. The terms of this Section 1(b) are
applicable to you if you have registered as a Development
Use customer. Subject to the terms of this Agreement,
VIEWTIER grants to you a non-exclusive, non-transferable,
fee-bearing license to use the Software solely for
Development Use for the number of users and the number of
CPU's, Servers and/or at the Sites, as specified on
VIEWTIER's invoice. Third party software products or modules
supplied by VIEWTIER, if any, may be used solely with the
Software. All rights not specifically granted to you herein
are retained by VIEWTIER.

c. Production Use. The terms of this Section 1(c) are
applicable to you if you have registered as a Production Use
customer. Subject to the terms of this Agreement, VIEWTIER
grants to you a non-exclusive, non-transferable, fee-bearing
license to use the Software solely for Production Use on the
number of CPU's, Servers and/or at the Sites, as specified
on VIEWTIER's invoice. Third party software products or
modules supplied by VIEWTIER, if any, may be used solely
with the Software. If you integrate the Software into an
application and intend to resell the resulting integrated
application you must contact VIEWTIER to obtain the
appropriate distribution license. All rights not
specifically granted to you herein are retained by VIEWTIER.

d. Restrictions on Use. Whether the Software is being
licensed for Evaluation Use, Development Use or Production
Use, you may not reverse engineer, decompile, disassemble or
otherwise attempt to determine source code or protocols from
the Software or disclose the results of software performance
benchmarks to any third party without VIEWTIER's prior
written consent. Additional restrictions, if any, with
respect to third party software will be delivered to you
along with your license key. You are forbidden from using
Evaluation Software for Development or Production Use. You
are forbidden from using Development Software for Production
Use. You may not lease, rent, resell or sublicense the
Software to any third party, or otherwise use it except as
permitted in this Agreement.

e. Ownership Rights. You may modify the Software in
accordance with the Documentation solely to allow for
interoperability with your internal MIS system. Such
modifications shall not be derivative works, nor shall you
create or attempt to create any derivative works from the
Software. Title, ownership rights and all intellectual
property rights in and to the Software shall remain the sole
and exclusive property of VIEWTIER.

f. Copies and Number of Users. The terms of this Section
1(f) are applicable to you if you are a Development Use
customer or Production Use customer. You may make a
reasonable number of copies of the Software and
Documentation (provided that all copyright and other
proprietary notices of VIEWTIER and its licensors are
reproduced), solely for archival purposes. If you do copy
for this purpose, you will preserve any proprietary rights
notices on the Software and place such notices on any and
all copies you made or make. If you would like to change the
number of Users, or number or identity of Sites, CPU's
and/or Servers indicated on your invoice, you must contact
VIEWTIER in writing for our approval; you may be subject to
additional fees.

g. Territory. The license grants hereunder are limited to
use within the Territory.

h. Audit. VIEWTIER may, at any time with seven (7) days
prior written notice, request and gain access to your
premises subject to your security procedures, for the
limited purpose of conducting an audit to determine and
verify that you are in compliance with these terms and
conditions. You will promptly grant such access and
cooperate with VIEWTIER in the audit. The Audit will be
conducted in a manner not intended to unreasonably disrupt
your business and will be restricted in scope, manner and
duration to that reasonably necessary to achieve its
purpose. You will be liable for promptly remedying
discrepancies revealed during the audit, including
reimbursement to VIEWTIER for the costs of the Audit and any
underpayments.

2. LICENSE FEES. 

a. Payment and Taxes. In consideration of the applicable
license(s) granted pursuant to Sections 1(b) or 1(c), you
agree to pay VIEWTIER the total non-refundable and
non-cancelable license fee(s) within thirty (30) days of
VIEWTIER's invoice. You will pay all sales, use, VAT and
other consumption taxes, personal property taxes and other
taxes (other than those based on VIEWTIER's net income)
unless you furnish VIEWTIER with written proof of exemption.
VIEWTIER may assess interest charges of one percent (1%) per
month for late payments.

b. Foreign Taxes. If you download and/or use the Software
outside the United States, you agree that the amounts to be
remitted to VIEWTIER are to be the actual amounts due
without withholding taxes or other assessments by
authorities anywhere in the foreign location, which
withholding taxes or assessments you agree to pay. You will
promptly furnish VIEWTIER with certificates evidencing
payment of such amounts.

3. SUPPORT SERVICES  

You are entitled to Support Services described in this 
Section 3(a). You may purchase optional annual Upgrade
Contract from VIEWTIER in order to qualify for the Support 
Services described in this Section 3(b).

a. Support Services. Support Services generally means that
VIEWTIER will provide: (i) Maintenance Updates and Upgrades
("Maintenance Releases") if, as and when VIEWTIER makes any
such Maintenance Releases generally available and helpdesk
assistance with respect to the Software, including (a)
clarification of functions and features; (b) clarification
of documentation; (c) guidance in the operation of the
Software; and (d) Software error analysis. VIEWTIER will use
reasonable efforts to provide error corrections or
work-arounds for the most severe errors as soon as possible
and based upon VIEWTIER's classification of the severity of
the error. Support Services will be provided only with
respect to versions of the Software that, in accordance with
VIEWTIER policy, are then being supported by VIEWTIER.

b. Upgrade Contract. Upgrade Contract generally means that 
VIEWTIER will provide: (i) a one-year price lock; (ii) one-year 
upgrades to Major Releases, when VIEWTIER makes any such Major 
Releases generally available.

c. Your Responsibilities. You agree to provide VIEWTIER with
reasonable access to your personnel and equipment, if
necessary, during normal business hours in order to provide
Support Services. You agree to document and promptly report
all errors or malfunctions of the Software to VIEWTIER. You
agree to pay the Support Services fees when due, and if you
do not do so within thirty (30) days after any such amount
becomes due, VIEWTIER may suspend performance of its Support
Services obligations.

4. LIMITED WARRANTY 

a. Limited Warranty. With respect to the Software licensed
for Development Use or Production Use, VIEWTIER warrants
that the Software will conform in all material respects to
the Documentation for a period of ninety (90) days from the
date of delivery of the Software. VIEWTIER does not warrant
that operation of the Software will be uninterrupted or
"bug" free. If VIEWTIER breaches the foregoing warranty and
you promptly notify VIEWTIER in writing of the nature of the
breach, VIEWTIER shall make commercially reasonable efforts
to promptly repair or replace the non-conforming Software,
without charge. If, after a reasonable opportunity to cure,
VIEWTIER does not repair or replace the non-conforming
Software, you must return the Software and the Documentation
to VIEWTIER, or certify in writing that all copies have been
destroyed, and VIEWTIER will refund the fees it received for
the Software to you. This is your sole and exclusive remedy
for breach of the exclusive warranty set forth above.

b. Disclaimer. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN
LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INLCUDING
WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.

5. LIMITATION OF LIABILITY 

a. Evaluation Use. Evaluation Use Software is provided
gratuitously and, therefore, VIEWTIER and its suppliers
shall not be liable for any direct, indirect, incidental,
special, punitive or consequential damages under any theory
of liability whether in tort, contract, strict liability or
otherwise even if advised of the possibility of such
damages.

b. Development and Production Use. With respect to
Development Use and Production Use, VIEWTIER's aggregate
liability to you for damages concerning performance or
nonperformance by VIEWTIER or in any way related to this
Agreement, and regardless of whether the claim for such
damages is based in contract, tort, strict liability of
otherwise, shall not exceed the license fees received by
VIEWTIER for the affected Software for the twelve (12) month
period preceding the occurrence of such liability. In no
event shall VIEWTIER be liable for any indirect, incidental,
special, punitive or consequential damages, lost data or
lost profits, even if VIEWTIER has been advised as to the
possibility of such damages.

c. Applicability. Some States do not permit disclaimers of
certain warranties or limitations on certain types of
liability under certain circumstances; consequently, some of
the foregoing disclaimers and limitations may not be
applicable to you, in whole or in part.

6. SOFTWARE CHANGES. 

VIEWTIER reserves the right at any time not to release or to
discontinue release of any Software and to alter prices,
features, specifications, capabilities, functions, licensing
terms, release dates, general availability or other
characteristics of the Software.

7. INTELLECTUAL PROPERTY INDEMNIFICATION. 

a. Defense. If a third party claims that your use of the
Software infringes any United States copyright, you must
promptly notify VIEWTIER in writing. VIEWTIER will defend
you against such claim if you fully cooperate with VIEWTIER
and allow VIEWTIER to control the defense and all related
settlement negotiations, and then VIEWTIER will indemnify
you from and against any damages finally awarded for such
infringement.

b. Injunctive Relief. If an injunction is sought or obtained
against your use of the Software as a result of a third
party infringement claim, VIEWTIER may, at its sole option
and expense, (i) procure for you the right to continue using
the affected Software, (ii) replace or modify the affected
Software with functionally equivalent software so that it
does not infringe, or, if either (i) of (ii) is not
commercially feasible, (iii) terminate the licenses and
refund the license fees received for the affected Software
on a pro rata basis using a thirty six (36) month
amortization schedule.

c. Disclaimer of Liability. VIEWTIER shall have no liability
for any third party claim of infringement based upon (i) use
of other than the then current, unaltered version of the
applicable Software, unless the infringing portion is also
in the then current, unaltered release; (ii) use, operation
or combination of the applicable Software with non-VIEWTIER
programs, data, equipment or documentation if such
infringement would have been avoided but for such use,
operation or combination; or (iii) any third party software.

The foregoing constitutes the entire liability of VIEWTIER,
and your sole and exclusive remedy with respect to any third
party claims of infringement.

8. TERM AND TERMINATION. 

a. Acceptance of Agreement; Termination. This Agreement
takes effect upon the earlier of (i) your electronic
indication of your selection of the ACCEPTANCE button at the
end of this License Agreement, (ii) your downloading of the
Software, (iii) your use of the Software, or (iv) receipt by
VIEWTIER of a valid, binding purchase order, Agreement or
other ordering document for the Software, and will remain in
force until terminated in accordance with this Agreement.
This Agreement may be terminated by you upon thirty (30)
days' prior written notice to VIEWTIER or by destroying or
returning to VIEWTIER all copies and partial copies of the
Software and Documentation under your control; provided that
no such termination will entitle you to a refund of any
portion of the License or Support Services Fees. VIEWTIER
may, by written notice to you, terminate this Agreement
immediately if any of the following events occur: (a) you
fail to pay any amount due to VIEWTIER within thirty (30)
days after VIEWTIER gives you written notice of such
nonpayment; (b) you are in material breach of any
non-monetary provision of this Agreement, which breach, if
capable of being cured, is not cured within thirty (30) days
after VIEWTIER gives you written notice thereof, or (c) you
declare bankruptcy or make an assignment to or for the
benefit of creditors.

b. Survival. Upon termination of this Agreement for
non-default, the provisions of Sections 1, 2, 4(b), 5, 7(c),
8, 10 and 11 will survive. Upon termination of this
Agreement for default, the provisions of Sections 1(d),
1(e), 1(h), 2, 4(b), 5, 7(c), 8, 9, 10 and 11 will survive.

c. Effect of Termination. Within thirty (30) days after the
date of termination or discontinuance of this Agreement for
any reason whatsoever, you shall destroy the Software and
all copies, in whole or in part, all Documentation relating
thereto, and any other VIEWTIER confidential information in
your possession that is in tangible form.

9. UNITED STATES GOVERNMENT RIGHTS. 

The Software provided under this Agreement is commercial
computer software developed exclusively at private expense,
and in all respects are proprietary data belonging solely to
VIEWTIER.

a. Department of Defense End Users: If the Software is
acquired by or on behalf of agencies or units of the
Department of Defense (DOD), then, pursuant to DoD FAR
Supplement Section 227.7202 and its successors (48 C.F.R.
227.7202) the Government's right to use, reproduce or
disclose the Software and any accompanying documentation
acquired under this Agreement is subject to the restrictions
of this Agreement.

b. Civilian Agency End Users: If the Software is acquired by
or on behalf of civilian agencies of the United States
Government, then, pursuant to FAR Section 12.212 and its
successors (48 C.F.R. 12.212), the Government's right to
use, reproduce or disclose the Software acquired under this
Agreement is subject to the restrictions of this Agreement.

10. MISCELLANEOUS. 

a. Force Majeure. Neither party shall be liable for any
delay or failure in performance due to causes beyond its
reasonable control.

b. Export Compliance. You may not download or otherwise
export or re-export the Software or any underlying
information or technology except in full compliance with all
United States and other applicable laws and regulations. In
particular, but without limitation, none of the Software or
underlying information or technology may be downloaded or
otherwise exported or re-exported (a) into (or to a national
or resident of) Cuba, Iran, Iraq, Libya, North Korea, Syria,
or Sudan, or (b) to anyone on the US Treasury Department's
list of Specially Designated Nationals or the US Commerce
Department's Table of Denial Orders. By licensing the
Software, you are agreeing to the foregoing and you are
representing and warranting that you are not located in,
under control of, or a national or resident of any such
country or on any such list.

c. Assignment. You may not assign this Agreement, except to
a successor in interest as the result of a merger or
acquisition or sale of all or substantially all of your
assets, without VIEWTIER's prior written consent which will
not be unreasonably withheld.

d. Severability. If any part of this Agreement is held to be
unenforceable, in whole or in part, such holding will not
affect the validity of the other parts of the Agreement.

e. Waiver. The waiver of a breach of any provision of this
Agreement will not operate or be interpreted as a waiver of
any other or subsequent breach.

f. Notices. All notices permitted or required under this
Agreement shall be in writing and shall be delivered in
person, by FAX, overnight courier service or mailed by first
class, registered or certified mail, postage prepaid, to the
address of the party specified as accepting these terms and
conditions upon completion of the registration sheet and
ACCEPTANCE of this Agreement by clicking on the ACCEPTANCE
button.

g. Governing Law and Venue. Notwithstanding the Territory,
this Agreement will be governed by both the substantive and
procedural laws of California, U.S.A., excluding its
conflict of law rules. Any dispute regarding this Agreement
will be heard in the state or federal courts having
jurisdiction in Santa Clara County, California, U.S.A. and
you agree that you shall be subject to the personal
jurisdiction of such courts.

h. Entire Agreement. Any amendment or modification to the
Agreement must be in writing signed by both parties. This
Agreement constitutes the entire agreement and supersedes
all prior or contemporaneous oral or written agreements
regarding the subject matter hereof. No terms, provisions or
conditions of any purchase order, acknowledgment or other
business form that you may use in connection with the
licensing of the Software will have any effect on the
rights, duties or obligations of the parties hereunder, or
otherwise modify this Agreement, regardless of any failure
of VIEWTIER to object to such terms, provisions or
conditions.

i. Acceptance. The earlier of your (i) clicking on the
ACCEPTANCE button, (ii) downloading of the Software, (iii)
use of the Software or (iv) receipt by VIEWTIER of a valid,
binding purchase order, Agreement or other ordering document
for the Software, constitutes an acceptance of the terms of
this Agreement. If you do not agree to be bound by these
provisions, you are required to destroy all copies of the
Software from your equipment immediately.

11. DEFINITIONS. 

a. "Development Use" means use of the Software by a
Development Use customer to design, develop and/or test new
applications for Production Use.

b. "Documentation" means VIEWTIER's current user manuals,
operating instructions and installation guides generally
provided with the Software to its licensees.

c. "Error" means a failure of the Software to conform to the
specifications as set forth in the Documentation, resulting
in the inability to use the Software or a material
restriction in use of the Software.

d. "Evaluation Use" means use of the Software solely for
evaluation and trial for new applications intended for your
Production Use.

e. "Maintenance Release" means a subsequent version of the
Software that includes Updates and/or Upgrades.

f. "Production Use" means using the Software in your
application for internal business purposes only which may
include third party customers' access to or use of such
applications. Production Use does not include the right to
reproduce the Software for sublicensing, resale, or
distribution, including without limitation, operation on a
time sharing or service bureau basis or distributing the
Software as part of an ASP, VAR, OEM, distributor or
reseller arrangement.

g. "Server" means a single computer processor capable of
executing the Software.

h. "Site" means the specific, physical location of a Server,
as set forth on your registration form.

i. "Software" means the object code versions, extracts
and/or derivative works of the software electronically
downloaded from VIEWTIER's website upon acceptance of this
Agreement, and the related Documentation, including
Maintenance Releases provided pursuant to the standard
Support Services Terms and Conditions.

j. "Support Services" means technical support for Software
under VIEWTIER's then current policies.

k. "Support Services Term" means the first year after the
Effective Date of the applicable Software License Agreement
and the related Order, plus any respective renewal terms.

l. "Territory" means the geographical territory into which
you download the Software or indicate acceptance of this
Agreement .

m. "Update" means either a Software modification or addition
that, when made or added to the Software, corrects the
Error, or a procedure or routine that, when observed in the
regular operation of the Software, eliminates the practical
adverse effect of the Error on customer.

n. "Upgrade" means a revision of the Software released by
VIEWTIER to its end user customers generally, during the
Support Services Term, to add new and different functions or
to increase the capacity of the Software. Upgrade does not
include the release of a new product or added features for
which there may be a separate charge. If a question arises
as to whether a new product offering is an Upgrade or a new
product or feature, VIEWTIER's opinion will prevail,
provided that VIEWTIER treats the product offering as a new
product or feature for its end user customers generally.



Last updated 01/18/2006