cosbatch

END USER LICENSE AGREEMENT

NOTICE TO LICENSEE: PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING THE ‘YES' BUTTON YOU ("LICENSEE") ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT REGARDING USE OF ALL OR ANY PORTION OF cosbatch PRODUCT ("LICENSED SOFTWARE"). LICENSEE FURTHER AGREES THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY LICENSEE. IF LICENSEE DOES NOT AGREE TO THESE TERMS AND CONDITIONS, CLICK THE "NO" BUTTON AND DO NOT USE THE SOFTWARE.

IF YOU HAVE PREVIOUSLY ENTERED INTO A SOFTWARE LICENSE AGREEMENT WITH OPEN SYSTEMS MANAGEMENT LTD THAT IS STILL IN EFFECT, PLEASE CLICK "YES" TO CONTINUE. THAT AGREEMENT TAKES PRECEDENCE OVER THIS DOCUMENT.

1.        Definitions

The following terms are integral to this Agreement and shall have the meanings stated.

1.1     "Documentation" means manuals, user guides, and education materials on any medium relating to the Licensed Software and offered for sale or license or distribution by Open Systems Management Ltd. (OSM) to third parties in the ordinary course of business at the prices shown in the Price List.

1.2     "End User" means an employee of Licensee, consultant or third party collaborator, who benefits from the functionality of the Licensed Software and Documentation.

1.3     "Error" means a mistake, problem or defect which causes a substantial incorrect functioning or non-functioning of the Licensed Software, or an incomplete or incorrect statement or diagram in Documentation, if such mistake, problem or defect renders the Licensed Software inoperable, causes the Licensed Software to fail to materially meet the specifications thereof or causes the Documentation to be inaccurate or inadequate in any material respect.

1.4     "Error Correction" means either a modification or addition that, when made or added to the Licensed Software and/or Documentation, brings the Licensed Software and/or Documentation into material conformity with the published specifications for the affected Licensed Software and/or Documentation, or a procedure or routine that, when observed in the regular operation of the Licensed Software and/or use of the Documentation, avoids the practical adverse effect of such nonconformity.

1.5     "Licensed Server" means a uniquely identified logical computer with one or more CPUs on which the Licensed Software resides and which can be accessed by other computers. For example, the term Server may refer to web servers, database servers and application servers.

1.6     "Licensed Software" means the object code version of the computer programs (excluding maintenance diagnostics) owned, licensed or otherwise acquired by OSM, together with the tangible media upon which such programs are recorded, as well as any Updates, or New Releases offered to third parties by OSM in the ordinary course of business at the license fees in the Price List. The Licensed Software consists of server software, designed for installation on a networked server computer(s) where data is stored, and agent software, which is installed on managed servers and allows the user to access the managed server directly. The server software and agent software are licensed only as a bundled product.

1.7     "New Release" means a revision to the Licensed Software that contains major enhancements and/or new features or functions and which is offered for license by OSM to third parties in the ordinary course of business.

1.8     "Price List" means the OSM U.S.$ Corporate Price List in effect at the time OSM receives an order for Licensed Software.

1.9      "Technical Support Services" means the maintenance and support provided by OSM in accordance with OSM's then current support policies and procedures for the applicable Licensed Software.

1.10   "Update" means any subsequent release of the Licensed Software and/or Documentation that is made generally available, at no additional charge other than media and handling charges, to licensees who subscribe for the Licensed Software. Updates shall include any New Release or option but not future products of differing function which OSM licenses separately.

2.        Term of Agreement

This Agreement shall commence on the date that you click on the YES button ("Effective Date") and, except as otherwise provided herein, continue for the term paid for by Licensee unless terminated sooner by either party as provided in Section 10, below.  Unless either party notifies the other party in writing not less than thirty (30) days prior to the expiration of each term, this Agreement will renew automatically thereafter for successive terms, provided that Licensee makes timely payment of the annual license and support fee.

3.        License

3.1     Grant.  OSM hereby grants Licensee a non-exclusive, non-transferable right to use the Licensed Software and Documentation on the Licensed Server(s)  for use only for Licensee's business purposes. Licensee shall not transfer the Licensed Software to non-Licensed Servers within Licensee's network without OSM's prior written consent, which shall not be unreasonably withheld. Licensee acknowledges and understands that this license grant does not include, and specifically excludes, the right to make copies of the Licensed Software and Documentation, except as permitted hereinbelow; to sublicense or otherwise provide the Licensed Software and Documentation either directly or indirectly to any third party; or to create or attempt to create the source code or any part thereof, including underlying ideas, algorithms, structure or organization, from any of the Licensed Software or Documentation or from other information made available by OSM under this Agreement or otherwise. Notwithstanding the foregoing, Licensee may allow access to the Licensed Software to Licensee's consultants or other third parties who wish to collaborate with Licensee on projects requiring use of the Licensed Software, provided that each person to whom such access is granted agrees in writing to be bound by the provisions of this Agreement. Some third party materials included in the Licensed Software may be subject to other terms and conditions.

3.2     Fees.  Licensee shall pay OSM the license fee(s) in the Price List for the applicable number of Licensed Servers on which the Licensed Software is installed.

3.3     Modification.  Unless otherwise agreed in writing by OSM, Licensee shall not modify, reverse engineer or decompile the Licensed Software nor shall it create derivative works based on the Licensed Software.  Licensee further agrees it will not combine the Licensed Software or Documentation with other programs or materials to form an updated work. In the event such permission has been granted, Licensee shall, upon discontinuance or termination of this license, remove the Licensed Software and Documentation from the updated work and return it to OSM

3.4     Copies.  Licensee will make and maintain no more than one (1) archival copy of the Licensed Software and Documentation. Each copy shall contain all legends and notices and will be subject to the same conditions and restrictions as the original. Upon termination or cancellation of any license granted hereunder, Licensee will destroy (and certify such destruction in writing) or return to OSM all copies of the affected Licensed Software and Documentation.

3.5     Ownership. All copies of the Licensed Software and Documentation, including all updates, are and remain the property of OSM or its licensors. No title to or ownership of the Licensed Software or Documentation or any modified part thereof is transferred to Licensee under this Agreement.

3.6   Licensee Tracking.  Licensee represents and warrants to OSM that Licensee has systems and/or procedures in place sufficient to track and control the use of the Licensed Software and Documentation under this Agreement to ensure that Licensee can accurately report to OSM the correct number of Licensed Servers.

3.7  Right of Audit. During the Term of this Agreement, and for a period of one year thereafter, Licensee shall maintain a complete, clear, accurate record of the number of copies of Licensed Products installed by Licensee including a clear and accurate record of the number of Licensed Products licensed. To ensure compliance with the terms of this Agreement, OSM shall have the right to have an inspection and audit of all the relevant records of Licensee and access to all servers on which Licensed Product is installed, conducted by OSM's independent certified public accountant whose fee is paid by OSM. Any such audit shall be conducted during regular business hours at Licensee's offices and in such a manner as not to unreasonably interfere with Licensee's normal business activities. In no event shall audits be made hereunder more frequently than every twelve (12) months. If such inspections should disclose any underreporting, Licensee shall promptly pay OSM such amounts, together with fifty percent of the audit costs and interest on past due amounts at the rate of 1- 1/2% per month or the highest interest rate allowed by law, whichever is lower, from the date on which such amount became due to OSM from Licensee.

4         Acceptance and Payment

4.1     Acceptance.  Unless otherwise agreed in writing and specifically described in the Order, all Licensed Software and Documentation acquired by Licensee from OSM pursuant to this Agreement shall be considered accepted upon electronic transfer to Licensee.

4.2   Payment.   Charges for Licensed Software and Documentation will be invoiced upon transfer and shall be due no later than thirty (30) days from the invoice date. Failure by Licensee to make payments within the thirty (30) day period may result in and the assessment of late charges of one and one-half percent (1.5%) per month or the highest rate allowed by applicable law, whichever is more, from the date such payment first became overdue.

4.3      Taxes. The prices stated are exclusive of any federal, state, municipal or other government tax now or hereafter imposed upon the production, storage, sale, transportation or use of the Licensed Software and Documentation. Such taxes applied directly to the license hereunder shall be paid by Licensee (other than a tax measured by OSM's income) or, in lieu thereof, Licensee shall provide a tax exemption certificate acceptable to the taxing authorities. When such taxes are applicable, they shall be billed as a separate item on the invoice.

5.     Proprietary Information

5.1     Definition.  "Proprietary Information" shall mean any information and data of a confidential nature, including but not limited to proprietary, technical, development, marketing, sales, operating,  cost, performance, business and process information, computer programming techniques, and all record bearing media containing or disclosing such information and techniques, which is disclosed by one party ("Discloser") to the other party ("Recipient") pursuant to this Agreement. When appropriate, the term shall also include any samples, models or prototypes, or parts thereof.

The confidentiality obligations of this provision shall not apply to any information which (a) is already in the public domain through no breach of this provision; (b) is lawfully in Recipient's possession prior to receipt from Discloser; (c) is received independently from a third party free to lawfully disclose such information to Recipient; or (d) is subsequently independently developed by Recipient. Proprietary Information shall not be deemed to be in the public domain merely because any part of it is embodied in general disclosures or because individual features, components or combinations thereof are now or become known to the public.

5.2     Restriction.  All Proprietary Information delivered pursuant to this provision shall (a) not be copied, distributed or disseminated in any way or form by Recipient without the prior written consent of Discloser; (b) be maintained in confidence and disclosed only to those employees of Recipient who have a need to know; (c) not be used by Recipient for any purpose, except as otherwise expressly stated herein, without the prior written consent of Discloser; and (d) remain the property of and be returned to Discloser (along with all copies thereof) within thirty (30) days of receipt by Recipient of a written request from Discloser that sets forth the Proprietary  Information to be returned.

5.3     Survival.  The nondisclosure obligations of this Section shall survive termination, cancellation or expiration of this Agreement.

6.  Warranties and Disclaimers

6.1     Performance. Unless otherwise agreed in writing by OSM, the Licensed Software, in its unaltered form, is warranted to conform to OSM's published functional specifications for a period of thirty (30) days from the date of delivery to Licensee. During the warranty period, OSM will make reasonable efforts to provide corrections for Errors that reflect significant deviations from the functional specifications as are reported by Licensee to OSM and will replace defective media. Because not all errors in software can or need be corrected, OSM does not warrant that all Licensed Software Errors will be corrected. Similarly, OSM does not warrant that the functions contained in the Licensed Software will operate in combinations selected for use by Licensee.

6.2     Alterations. OSM has no obligation to provide warranty services for extended or modified Licensed Software and shall not be responsible for any malfunction, non-performance or degradation of performance resulting therefrom whether such modifications or extensions were performed by Licensee or OSM at Licensee's request. Licensee shall be solely responsible for any infringement, personal injury or damage to property caused by such modifications or extensions.

6.3     Remedy Exclusive. Licensee's sole and exclusive remedy for breach of warranty shall be limited to the correction of defects in the Licensed Software.

EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE. THE EXPRESS WARRANTIES CONTAINED HEREIN SHALL NOT BE EXPANDED, DIMINISHED OR AFFECTED BY AND NO OBLIGATION OR LIABILITY WILL ARISE OR GROW OUT OF OSM'S RENDERING OF TECHNICAL, PROGRAMMING OR OTHER ADVICE OR SERVICE IN CONNECTION WITH THE LICENSED SOFTWARE AND DOCUMENTATION PROVIDED HEREUNDER. OSM HEREBY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. OSM'S WARRANTIES EXTEND SOLELY TO LICENSEE.

7.        Support and Maintenance

If Technical Support Services are available for the Licensed Software and Documentation, upon payment to OSM of the annual license fee shown in the Price List, Licensee will receive the support and maintenance services described in our support policies and incorporated herein by this reference.

8.    Infringement Indemnification

OSM shall defend any claim, suit or proceeding brought against Licensee to the extent it is based on a claim that the use, transfer or license of the Licensed Software in the form delivered to Licensee hereunder constitutes an infringement of a U.S. or Western European patent, copyright, trade secret or other proprietary right, so long as OSM is notified by Licensee in writing within fifteen (15) days as to any such action and is given full information and assistance (at OSM's expense) for the defense: provided, however, that the foregoing indemnity shall not extend to any suit or proceeding which is based upon a claim covering a combination of which the Licensed Software is  merely an element of the claim combined with other products not provided by OSM, unless OSM is a contributory infringer. OSM shall pay the amount of any settlement or the costs and damages awarded after final appeal, but shall not be responsible for any settlement made without its consent. If OSM receives notice of an alleged infringement, it shall, at its option, obtain the right to continued use of the Licensed Software, provide a substitution or modification which eliminates the infringement or remove the Licensed Software and grant Licensee a credit less a reasonable amount for Licensee's use of the Licensed Software.

EXCEPT AS STATED HEREIN, OSM DISCLAIMS ALL LIABILITY FOR INFRINGEMENT AND LICENSEE'S SOLE AND EXCLUSIVE REMEDY SHALL BE AS SET FORTH IN THIS SECTION.

9.         Limitation of Liability

9.1     Exclusive Remedy. Unless further limited elsewhere in this Agreement, the entire liability of OSM, or its licensors, and Licensee's exclusive remedy for damages from any cause related to or arising out of this Agreement, regardless of the form of the action, whether in contract or in tort, will not exceed the license fee of the Licensed Software directly related to the cause(s) of action asserted.

9.2   IN NO EVENT SHALL OSM BE LIABLE FOR (A) ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, REVENUES, PROFITS OR SAVINGS, EVEN IF OSM KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF AN EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE, (B) CLAIMS DEMANDS OR ACTIONS AGAINST LICENSEE BY ANY PERSON, EXCEPT AS PROVIDED IN SECTION 8 OR (C) LOSS OF OR DAMAGE TO THE LICENSEE'S DATA FROM ANY CAUSE.

10.  Termination

10.1     Material Breach. This Agreement may be terminated: a) by either party upon a material breach by the other party of the terms of this Agreement, which breach has not been cured within thirty (30) days after the breaching party has received written notice thereof; b) by Licensor, upon fifteen (15) days written notice, in the event of any delinquency of Licensee in payment of amounts due under this Agreement for any period of thirty one (31) days or longer; or c) by the non-breaching party upon three (3) business days written notice in the event of breach of Section 5 (Proprietary Information).

10.2     Other. If either party becomes insolvent or voluntarily or involuntarily bankrupt or is unable to meet its obligations when due, or if a receiver or other liquidating officer is appointed for substantially all of said party's assets or business, or if said party makes an assignment for the benefit or its creditors, the other party may terminate this Agreement immediately upon written notice to such party.

10.3     Effect of Termination.  Licensee shall return or destroy, at OSM's option, all copies of the Licensed Software and Documentation, whether modified or unmodified, and all relevant materials  within fifteen (15) days of the date of termination and to certify compliance with this requirement.

11. Pre-release Product Additional Terms.

If the product you have received with this license is a pre-commercial release or beta Licensed Software ("Pre-release Licensed Software"), then the following Section applies. To the extent that any provision in this Section is in conflict with any other term or condition in this Agreement, this Section shall supersede such other term(s) and condition(s) with respect to the Pre-release Licensed Software, but only to the extent necessary to resolve the conflict. Licensee understands and acknowledges that the Licensed Software is a pre-release version, does not represent final product from OSM, and may contain bugs, errors and other problems that could cause system or other failures and data loss. Consequently, the Pre-release Licensed Software is provided to Licensee "AS-IS" and OSM disclaims any warranty or liability obligations to Licensee of any kind. WHERE LEGALLY LIABILITY CANNOT BE EXCLUDED FOR PRE-RELEASE SOFTWARE, BUT IT MAY BE LIMITED, OSM'S LIABILITY AND THAT OF ITS SUPPLIERS SHALL BE LIMITED TO THE SUM OF ONE HUNDRED DOLLARS (U.S. $100) IN TOTAL. Licensee understands and acknowledges that OSM has not promised or guaranteed to Licensee that Pre-release Licensed Software will be announced or made available to anyone in the future, that OSM has no express or implied obligation to Licensee to announce or introduce the Pre-release Licensed Software and that OSM may not introduce a product similar to or compatible with the Pre-release Licensed Software. Accordingly, Licensee understands and acknowledges that any research or development that it performs regarding the Pre-release Licensed Software or any product associated with the Pre-release Licensed Software is done entirely at Licensee's own risk. During the term of this Agreement, if requested by OSM, Licensee will provide feedback to OSM regarding testing and use of the Pre-release Licensed Software, including error or bug reports. If Licensee has been provided the Pre-release Licensed Software pursuant to a separate written agreement, such as the OSM Beta Agreement, Licensee's use of the Licensed Software is also governed by such agreement. Licensee agrees that Licensee may not and certifies that Licensee will not sublicense, lease, loan, rent, or transfer the Pre-release Licensed Software. Upon receipt of a later unreleased version of the Pre-release Licensed Software or release by OSM of a publicly released commercial version of the Licensed Software, whether as a stand-alone product or as part of a larger product, Licensee shall return or destroy all earlier Pre-release Licensed Software received from OSM and shall abide by the terms of this Agreement for any such later versions of the Pre-release Licensed Software. Licensee shall return or destroy all unreleased versions of the Pre-release Licensed Software within thirty (30) days of the completion of Licensee testing of the Licensed Software when such date is earlier than the date for OSM's first commercial shipment of the publicly released (commercial) Licensed Software.

12.       Miscellaneous Provisions

12.1   Export Administration.  Licensee shall comply with all relevant export laws and regulations of the United States ("Export Laws") to ensure that neither the Licensed Software nor the Documentation is exported, directly or indirectly, in violation of Export Laws, or is intended to be used for any purposes prohibited by the Export Laws, including, without limitation, nuclear, chemical or biological weapons proliferation.

12.2  Assignment. Neither party may assign its rights or obligations or delegate its duties hereunder without the prior written consent of the other, except to a third party pursuant to a merger, sale of all or substantially all assets, or other corporate reorganization. Any attempted assignment or delegation in contravention of this Section 12.2 shall be void and of no effect.

12.3 Governing Law and Severability. This Agreement shall be governed by and construed in accordance with the internal, local laws of England and Wales, except those laws related to choice or conflict of law. If any provision of this Agreement is held invalid or unenforceable under any applicable law or be so held by applicable court decision, the parties agree that such invalidity or unenforceability shall not affect the validity and enforceability of the remaining provisions of this Agreement and further agree to substitute for the invalid or unenforceable provision a valid or enforceable provision which most closely approximates the intent and economic effect of the invalid provision within the limits of applicable law or applicable court decisions.

12.4 Force Majeure.  Neither party shall be liable for non-performance or delays caused by acts of God, wars, riots, strikes, fires, shortage of labor or materials, labor disputes, government restrictions or other causes beyond its control. In the event of the occurrence of any of the foregoing, the date of performance shall be deferred for a period equal to the time lost by reason of the delay. The affected party shall notify the other in writing of such events or circumstances promptly upon their occurrence.

12.5  Restricted Rights for U.S. Government.  Licensed Software Is provided to non-DOD agencies with RESTRICTED RIGHTS and Documentation is provided with LIMITED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph "C" of the Commercial Computer Software - Restricted Rights clause in FAR 52.227-19. If the Licensed Software and Documentation is provided to DOD agencies, the government's rights in the Licensed Software and Documentation and related technical data is subject to the restrictions in the Technical Data Commercial Items clause in DEARS 252-227-7015 and DEARS 227.7202.

12.6  Entire Agreement.  This Agreement sets forth the entire agreement and understanding between the parties as to the subject matter hereof and merges all prior discussions between them. Neither of the parties shall be bound by any conditions, definitions, warranties, understandings or representations with respect to such subject matter other than as expressly provided herein.

 

	Open Systems Management Ltd.		LICENSEE
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