License Agreement
THIS
SOFTWARE
LICENSEAGREEMENT(“AGREEMENT“)IS
ENTERED INTO BETWEEN SDNCENTER SP. Z O.O., PORY 78 STREET, 02757 WARSAW, POLAND,REGISTERED IN NATIONAL COURT REGISTER, IN THE DISTRICT COURT FOR THE CAPITAL CITY
OF WARSAW XIII COMMERCIAL DIVISION OF THE NATIONAL COURT REGISTER UNDERNUMBER KRS 0000574843 (INTERNATIONAL D-U-N-S NUMBER 366211749) (“SDNCENTER“)
AND YOU OR, IF YOU REPRESENT AN ENTITY OR OTHER ORGANIZATION, THAT ENTITY OR
ORGANIZATION(INEITHERCASE“
LICENSEE“).
IF
LICENSEEIS
ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY OR ORGANIZATION, LICENSEEREPRESENTS THAT LICENSEE HAS THE FULL AUTHORITY TO BIND THAT ENTITY OR
ORGANIZATION TO THE TERMS OF THIS AGREEMENT.
SDNCENTERISWILLINGTO
LICENSETHE
SOFTWARE THAT SDNCENTER MAKES AVAILABLE TO LICENSEE (“ SOFTWARE“),
INCLUDING, WITHOUT LIMITATION, THE DEVELOPMENT COMPONENTS AND RUNTIMECOMPONENTS (EACH AS DEFINED BELOW) AND ALL ACCOMPANYING DOCUMENTATION(ALSO
AS
DEFINED BELOW) SOLELY UNDER THE TERMS OF THIS AGREEMENT.
PLEASEREAD
THIS
AGREEMENTCAREFULLY.
BY
SELECTING THE ‘I AGREE’ BUTTON BELOW OR BY INSTALLING OR USING ANY SOFTWARE,
LICENSEE ACKNOWLEDGES THAT LICENSEE HAS READ AND AGREE TO BE BOUND BY THE
TERMS
OF THIS AGREEMENT.
IF
LICENSEE
DOES
NOT
AGREE
TO
BE
BOUND
BY
THIS AGREEMENT, OR DOES NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT,SDNCENTER IS NOT WILLING TO PROVIDE LICENSEE WITH ANY RIGHT OR LICENSE TO THE
SOFTWARE AND LICENSEE MUST REFRAIN FROM INSTALLING OR USING THE SOFTWARE IN
ANY
MANNER. IF LICENSEE INSTALLS OR USES THE SOFTWARE IN ANY MANNER, LICENSEEREPRESENTS THAT LICENSEE MEETS THE QUALIFICATIONS OF THIS AGREEMENT AND AGREETO BE BOUND BY THE TERMS OF THIS AGREEMENT.
This
Agreementiseffectiveupon
theearlier of the date Licensee first accepts an order for any Software issued by SdNcenter (an“Order“)orfirst
installs
or
uses
any
Softwareinanymanner(the“Effective
Date“).
This Agreement consists of the following terms and conditions and all Orders,each of which is incorporated into and made a part of this Agreement. Unlessotherwise expressly provided herein, this Agreement exclusively governs accessto and use of all Software by Licensee and is the complete and exclusive
understanding
andagreement
betweenLicenseeand
SdNcenter
regarding the Software. This Agreement supersedes any oral or written proposal,agreement,orothercommunication
betweenregarding the subject matter of this Agreement.

Licenseeand

SdNcenter

1.
DEFINITIONS.
The terms listed in this Section 1 will have thedefinitions given below when used in this Agreement. All other terms will havethe definitions given in this Agreement or, if not defined in this Agreement,
will have their plain English meaning as commonly interpreted in Poland.
Authorized User” means, (1) in the case where Licensee is an individual, Licensee himself
or herself, and (2) in the case where Licensee is an entity or organization,
the employees and contractors of the entity or organization, and any
subsidiaries, affiliates or customers of that entity or organization authorized
on an applicable Order, provided that such employees or contractors are legallybound to observe the terms of this Agreement or have entered into an End User
License Agreement.
“Deployment Installations” means the permitted number of unique Installations of theRuntimeComponents specified in an applicable Order.
“Documentation” means all documentation for the Software provided to Licensee by
SdNcenter.
“End User License Agreement” means a written end user software license agreement with
Licenseepertaining to the Software having terms at least as protective of SdNcenter and the interests
of
SdNcenterin the Software as the terms of this Agreement.
“Installation” means an installation or other instance of the Software on computing
equipment or in a computing environment owned or controlled by Licensee or an
Authorized User, including, without limitation, physical servers, virtualized
servers (virtual machines), or other computing equipment or environments.
“Licensee Works” means software components or applications created, compiled, or tested
by Licensee using the Runtime Components in accordance with the terms of thisAgreement,
and
that
add
primary
andsubstantialfunctionality to the Software (and are not merely a set or subset of any of the
Software).
“Runtime Components” means the components of the Software specified in theDocumentation
as
“Main
class
of
Javonetsolution”
which
provideaccess to bridging functionality in conjunction with the Licensee Works.
“Software” means all computer software made available to Licensee by or on behalfofSdNcenter,
including,
without
limitation,
theRuntimeComponents.

2.
ORDER
ACCEPTANCE.
All
OrdersfortheSoftwaremustbeissuedby
SdNcenter.
Once
issued,
an
Order
will
expire unless accepted by Licensee within the longer of thirty (30) days or thetime period stated on the Order (if any). An Order may not be accepted by
Licensee once the Order has expired. Acceptance of an Order by Licensee will
occur
upon
receipt
by
SdNcenter
of
any
of
the
following(or by such other means as may be agreed to by both parties with respect to agiven Order): (1) a copy of the Order signed by Licensee; (2) a purchase orderfrom Licensee for the Order; or (3) payment of the Fees under the Order.
Licenseemay
only
acceptOrdersissuedby
SdNcenterin the name of Licensee and not any third party.
3. TERM. The term of this Agreement for any Software shall begin on the
Effective Date and continue for an initial period of 30 days, unless otherwise
extendedthroughtheexpressauthorization
of
SdNcenter,such
authorization
in
the
sole
discretion
of
SdNcenter(the“TrialTerm“).
If
Licensee
acceptstheOrderapplicableto the Software (as set forth in Section 2) prior to the completion of the
Trial Term, then the term of this Agreement shall be extended as to that
Software for the duration of the commercial term specified in the applicable
Order
(the
“Commercial
Term“).
If
Licenseedoes
notaccepttheOrder applicable to the Software (as set forth in Section 2) prior to thecompletion of the Trial Term, then this Agreement will expire upon completionof the Trial Term.
4.
TRIAL
TERM
AND
ACADEMIC/NONCOMMERCIAL LICENSE. Subject to the terms of this Agreement, SdNcenter
grants to Licensee a personal, nonexclusive, nontransferable, noncommercial, limited
license during the Trial Term to install and use the number of Deployment
Installations of the Software solely for purposes of: (1) using the Runtime
Components as necessary to evaluate the Software and test the Licensee Works;and (2) using the Runtime Components to create and compile Licensee Works.. All
use of the Software during the Trial Term shall be solely by Authorized Users
and ONLY FOR NON-COMMERCIAL, NON-PRODUCTION, INTERNAL, TRIAL AND EVALUATIONPURPOSES AND NOT FOR ANY COMMERCIAL, GOVERNMENTAL, OR INSTITUTIONAL PURPOSE
OF
ANY
KIND.
If
SdNcenter
grantedtoLicenseeacademic/noncommercial license it can be used following the rules of TRIAL TERM
without time limits within the project for which the license was granted.
Academic/noncommercial
license can be used only for non-commercial and academic usage by institution
and workers of the institution for which the academic license was granted. For
academic/noncommercial licenses number of Deployment Installations is being
defined individually for particular Licensee, any additional usage permissions
might be granted with writted permission from SdNcenter.

5.
COMMERCIALTERM
LICENSES. Subject to the terms of this Agreement, SdNcenter grants to Licensee thefollowing
limitedlicensesto the Software during any applicable Commercial Term:
5.1
Beginner
License. A
personal,
nonexclusive,
nontransferable (subject to Section 19.10), limited license solely to install
the number of Deployment Installations subject to the Order applicable to theSoftware and permit the use of those Runtime Components by Authorized Users forthe sole purpose of: (a) using provided developers API to build custom logic
that uses bridging functionality including extending .Net type functionality tobuild custom proxy classes; (b) using those Proxy Classes and Runtime
Components to create and compile Licensee Works; and (c) using those ProxyClasses and Runtime Components and custom logic as necessary to test, use, andoperate the Licensee Works created using the Runtime Components. WITH THE
LIMITATION OF 10 CLASSES. NO REDISTRIBUTION IS ALLOWED. THE INTERNALPROJECTS ONLY.
Professional License. A personal, nonexclusive,
nontransferable (subject to Section 19.10), limited license solely to install
the number of Deployment Installations subject to the Order applicable to theSoftware and permit the use of those Runtime Components by Authorized Users forthe sole purpose of: (a) using provided developers API to build custom logic
that uses bridging functionality including extending .Net type functionality tobuild custom proxy classes; (b) using those Proxy Classes and Runtime
Components to create and compile Licensee Works; and (c) using those ProxyClasses and Runtime Components and custom logic as necessary to test, use, andoperate the Licensee Works created using the Runtime Components. PROVIDES THE
RIGHT TO DISTRIBUTE JAVONET BASED SOLUTION TO EXTERNALCUSTOMERS (PROFESSIONAL LICENSES NEEDED FOR EACH TARGET
MACHINE)Enterprise License. A personal, nonexclusive,
nontransferable (subject to Section 19.10), limited license solely to install
the number of Deployment Installations subject to the Order applicable to theSoftware and permit the use of those Runtime Components by Authorized Users forthe sole purpose of: (a) using provided developers API to build custom logic
that uses bridging functionality including extending .Net type functionality tobuild custom proxy classes; (b) using those Proxy Classes and Runtime
Components to create and compile Licensee Works; and (c) using those ProxyClasses and Runtime Components and custom logic as necessary to test, use, andoperate the Licensee Works created using the Runtime Components. PROVIDES THE
RIGHT TO DISTRIBUTE JAVONET BASED SOLUTION TO EXTERNALCUSTOMERS. PROVIDES THE UNLIMITED NUMBER OF MACHINES TO BE
IMPLEMENTED ON.
5.3
Back-up

Copy;

Limited

Home

Use.

Licensee

may

make

1

copy

the

Software provided under each applicable Order solely to replace the original
copy
providedby
SdNcenteriftheoriginal
copy
isdamaged or destroyed. If Licensee is an individual, Licensee may also make an
Installation of the Software on one of Licensee’s home computers,
provided that the Installation of the Software may not be used on Licensee’s
home computer at the same time as any other Development Installation of the
Software is being used.
5.4No
Additional
Licenses.
The
licensesgrantedinthis Section 5 are the sole rights and licenses granted to Licensee andLicensee is provided no other rights or licenses to the Software during theCommercial Term except as expressly stated in this Section 5. In particular,
Licensee is not permitted to reproduce or distribute the Software as part of a
VAR, OEM, distributor, reseller, or similar arrangement. IF LICENSEE REQUIRES A
LICENSE TO DISTRIBUTE THE SOFTWARE OR ANY LICENSEE WORK UNDER SUCH AN
ARRANGEMENT, OR REQUIRES ANY ADDITIONAL RIGHTS TO THE SOFTWARE, LICENSEE MUSTOBTAIN EXPRESS WRITTEN AUTHORIZATION FROM SDNCENTER.
6.
ADDITIONALRESTRICTIONS.
The
Softwareandits
structure,organization, and source code constitute valuable trade secrets of SdNcenter and its licensors.
Exceptasmaybeexpressly
setforth in the licenses granted in Sections 4 and 5, Licensee shall not, andshall not permit any Authorized User or third party to: (1) install, use,
reproduce, copy, display, or distribute the Software; (2) modify, adapt, alter,translate, or create derivative works from the Software; (3) merge the Softwarewith other software; (4) sublicense, distribute, sell, use for service bureau
use, lease, rent, loan, or otherwise transfer the Software to any third party;(5) reverse engineer, decompile, disassemble, or otherwise attempt to derive
the source code for the Software or Runtime Components; (6) circumvent or
attempt to circumvent any electronic protection measures with respect to theSoftware; or (7) disclose or publish performance benchmark results for the
Software. Licensee will reproduce the copyright and other proprietary notices
that appear on the Software on any copies made in accordance with thisAgreement and will not remove, alter, or obscure any such notices from theSoftware.
7.
NO
USE
FOR
COMPETITIVEPURPOSES.
Licenseemay
notincludetheSoftware,or
any portion thereof (including without limitation the Runtime Components), inany software development tool, library, component, or other product that is
generally competitive with or a substitute for the Software or any other SdNcenter productofferings;
normay
Licenseeuse
theSoftware to create a product or operate a service that is generally competitivewiththeSoftware
or
any
other
SdNcenterproduct
offerings.

8.
SOFTWARE
ACTIVATIONAND
OPERATION.
The
Softwaremay
containfunctionality
todisable access to or use of the Software following the end of the Trial Term or
any Commercial Term applicable to the Software or upon any attempt to create a
new Installation of the Software following initial Installation of the
Software. The Licensee Works that Licensee creates using the Software may
require the Runtime Components to operate. Access to or use of the Licensee
Works may be disabled upon disablement of Licensee’s access to the Software.
Licensee agrees to purchase all appropriate licenses to the Software to support
Licensee’s use and access to all Licensee Works and to take such actions as areset forth in the Documentation or otherwise directed by SdNcenterto activate those licenses. Licensee will also take such precautions necessary
to avoid any loss of data that may occur due to any disablement of any portionof the Software. SDNCENTER SHALL NOT BE LIABLE FOR ANY FAILURE BY LICENSEE TO
TAKE ANY OF THE FOREGOING ACTIONS OR FOR ANY INABILITY TO USE OR ACCESS ANYSOFTWARE OR LICENSEE WORKS DUE TO ANY FAILURE TO ACCOMPLISH THE FOREGOING.
9. OWNERSHIP.
9.1
SoftwareandDocumentation.
The
SoftwareandDocumentation,
including,
without
limitation,any
fixes,
features,enhancements, modifications, derivatives, versions, or releases of or to theSoftware(“Releases“),andallworldwide
intellectual
propertyand proprietary rights therein and related thereto, are and will remain thesoleandexclusivepropertyof
SdNcenteranditslicensors.
For
purposesof
thisAgreement,the“Software”
will
include, without limitation, any Releases made available by or on behalf of SdNcenter, unlesstheReleaseisexpressly
providedtoLicensee under a separate agreement. The Software is licensed, not sold, toLicensee and except as expressly set forth in Sections 4 and 5, Licensee isprovided no rights in or to the Software or any intellectual property or
proprietary
rightsthereinor
relatedthereto.
SdNcenterand its licensors reserve all rights in and to the Software and Documentation
notexpressly
grantedunder
thisAgreement.
“Javonet”andthe Javonet logo are trademarks of SdNcenter and may not be used by Licensee without theprior
express written authorization of SdNcenter.
9.2
LicenseeMedia
andLicenseeWorks.
Licenseewill
own the media, if any, onto which the Software is downloaded or installed, but SdNcenter
will
continuetoretainownershipofallcopiesof the Software on such media. Licensee will retain all ownership of thoseportions of the Licensee Works that Licensee creates that do not contain andare not comprised of the Software or any portion or component thereof. However,Licensee shall not, nor shall Licensee permit any Authorized User or thirdparty to, reverse engineer, decompile, disassemble, or otherwise attempt toderive the source code of any Runtime Components.
10. THIRD PARTY SOFTWARE.
10.1
Included
Third
Party
Software.
The
Software,including the Runtime Components, may include certain third party software
distributedbySdNcenter.
Use
of
such
third-party
software may be conditioned upon agreement by Licensee to a separate license
agreement accompanying such third party software. The terms and conditions ofany such agreement are in addition to and not in lieu of the terms andconditionsof
thisAgreement,
though
SdNcenterwarrants that any such separate license agreements shall not be subject to any
additional payment by Licensee not set forth in an applicable Order. Any
support, maintenance, or update of such third party software shall be the sole
responsibility of the third party provider of that software and SdNcenter expressly disclaims
any responsibility therefor.
10.2
Third
Party
Software.
Totheextentthat
Licensee
employs
any
third
party
softwarenot
distributedbySdNcenterin the creation of Licensee Works, Licensee represents and warrants that it has
obtained all rights necessary to use such third party software in the manner
actually used by Licensee (including, without limitation, all rights necessary tocreate custom classes based on third party class libraries).
11. FEES AND PAYMENT.
11.1
Fees.
If Licensee elects to extend this Agreement beyond the
Trial
Term
for
any
Software,Licenseewill
pay
SdNcenterall fees specified in the Order applicable to that Software or otherwise
specifiedbySdNcenterwithrespect
tothat
Software(“Fee“).
Upon
receiptofallapplicable
Fees,
Licenseewill
receive the rights and licenses granted under Section 5 above during theapplicable Commercial Term.
11.2
Payment.
Allpayments
of
all
Fees
shall
identify
the applicable Order to which the Fees apply and shall otherwise be made in theform and to the address specified on the applicable Order or otherwise
specifiedbySdNcenter.
All
payments
must
be
made
in
U.S. dollars. Except as may be set forth herein, all Fees are non-refundable
once
receivedby
SdNcenter.
Amounts
not
paid
when
due
shall be subject to a late charge of 1.5% per month (18% per year) or any
applicable legal maximum, whichever is less. Fees exclude all applicable sales,use, excise, value added, or other taxes, fees, duties, or similar charges, andLicensee will be responsible for payment of all such taxes, fees, duties, or
charges(other
than
taxes
based
on
SdNcenter’s
income).
SdNcenter
reserves
the
right
to
changetheFees at any time prior to payment thereof by Licensee.
12.
DISCLAIMER.

LIMITEDWARRANTY

AND

12.1
LimitedWarranty.
SdNcenterwarrants
that the Software will perform substantially in accordance with the specifications
for the Software set forth in the Documentation for a period of 90 days fromthe date Licensee initially downloads or otherwise receives a copy of the
Software(the“Warranty
Period“).
As
Licensee’ssole
andexclusive
remedyand
SdNcenter’s
entireliability
arising
outof
thislimitedwarranty,
SdNcenter
will,
at its sole discretion, use commercially reasonable efforts to correct any
reproducible failure of the Software to comply with this limited warranty or
replacetheSoftware.
SdNcenter
will
have
no
responsibility for any failure of the Software to comply with this limited
warranty
notreportedto
SdNcenterwithintheWarranty Period. This limited warranty shall be effective only for so long as
Licensee: (a) has properly installed all Software; (b) uses the software only
as set forth herein and in the applicable Documentation; (c) has not introduced
other software creating an adverse impact on the Software; (d) has paid allFees due hereunder; and (e) are not otherwise in breach of any provision of thisAgreement. In addition, this limited warranty will not apply to the extent thatany failure of the Software results from accident, abuse, misapplication,
misuse, abnormal use, virus, or third party software or hardware.
12.2
Disclaimer.
EXCEPTFORTHE
LIMITEDWARRANTYCONTAINEDIN
SECTION 12.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE
SOFTWAREIS
PROVIDEDTO
LICENSEE
“AS
IS”
AND
“AS
AVAILABLE.” SDNCENTER AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES OR
CONDITIONS REGARDING THE SOFTWARE, WHETHER EXPRESS, IMPLIED OR STATUTORY,INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, TITLE AND NON-INFRINGEMENT, AND FITNESS FOR A PARTICULARPURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SDNCENTER OR ITSEMPLOYEES OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATEANY NEW WARRANTIES. In states or jurisdictions that do not allow limitations on
implied warranties or conditions, the above limitations will apply only as permitted
in those states or jurisdictions.
12.3
Restricted

Uses.

THE

SOFTWARE

MAY

NOT

BE

USED

IN

CONNECTION

WITH ANY APPLICATION REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS THE OPERATION OF
NUCLEAR POWER FACILITIES, AIR TRAFFIC CONTROL OR NAVIGATION SYSTEMS, WEAPONSCONTROL SYSTEMS, LIFE SUPPORT SYSTEMS, OR ANY OTHER SYSTEM IN WHICH FAILURE
COULD LEAD TO INJURY, DEATH, ENVIRONMENTAL DAMAGE, OR MASS DESTRUCTION.
LICENSEE AGREES THAT SDNCENTER WILL HAVE NO LIABILITY OF ANY NATURE, AND
LICENSEE IS SOLELY RESPONSIBLE, FOR ANY LIABILITY, EXPENSE, LOSS, INJURY OR
DAMAGE INCURRED AS A RESULT OF SUCH USE OF THE SOFTWARE.
13.
SUPPORT,
MAINTENANCE,AND
TRAINING.
UnlessLicenseehasentered
into
an
Order
stating
that
SdNcenter
will
providesupport,maintenance, or training services for the Software, this Agreement does not
obligate
SdNcentertoprovideany
support,maintenance, or training for the Software. If Licensee requires maintenance,
support, training, or other additional services relating to the Software,
Licenseemaycontact
SdNcenter
and
enter
into
a
separate
Order
withSdNcenter
providingfor
maintenance, support, training or such other services.
14. RELATIONSHIP;AUTHORIZEDUSERS.
The
partiesareindependent
contractors
and neither party is an agent, representative, or partner of the other party.
This Agreement shall not be interpreted or construed to create an association,agency, joint venture, or partnership between the parties or to impose any
liability attributable to such relationship on either party. There are no thirdparty
beneficiaries
tothisAgreement.
SdNcenter
provides no warranty whatsoever to any third party. Licensee shall be solely
responsible to its Authorized Users (or anyone else who rightfully uses or
acquires any Licensee Works) for support, service, upgrades, or technical orother assistance (including with respect to any Runtime Components included
therein), and such persons will have no right to contact SdNcenter
for any services or assistance.
15. AUDIT. No more frequently than once per 12-month period during the term of thisAgreement, and upon reasonable notice and during normal business hours, SdNcenter or its
outsideauditors
will
have
the
right
to
enter Licensee’s premises and access Licensee’s records and computer systems to
the extent necessary to verify that Licensee has paid to SdNcenter
the correct amounts owed under this Agreement and determine whether the
Software is being used in accordance with the terms of this Agreement. We will
design such audits reasonably to minimize disruption to Licensee’s business.
Licenseewill
providereasonableassistanceto
SdNcenterin connection with any such audit. Licensee agrees to pay the cost of the audit
if any underpayments during the period covered by the audit amount to more than
5% of the fees actually owed for that period. In addition to any such audit,
upontherequestof
SdNcenter,
Licenseewill
promptly

provide
SdNcenter
with
a
copy
of
each
form
of
User License Agreement entered into between Licensee and each Authorized User.

End

16.
TERMINATION.

OFTERMINATIONAND

EFFECT

16.1
Termination.
Eitherparty may terminate
this Agreementiftheother party breaches any material provision of this Agreement and does not curesuch breach (provided that such breach is capable of cure) within 30 days after
being provided with written notice thereof. In addition to the foregoing, SdNcenter may
terminate
this
Agreement
immediately
upon
written notice to Licensee if: (a) Licensee, in any manner, breaches any partof Section 4, 5, 6, or 9 of this Agreement; or (b) any audit conducted under
Section
15
above
shows
that
(i)
Licenseeunderpaid
SdNcenterby 10% or more during the period covered by the audit or (ii) underpaid SdNcenter by 5% or
more
on
more
than
one
occasion.
Licensee
may terminate this Agreement at any time for any reason upon 5 days written
noticeto
SdNcenterof
its
intenttoterminatetheAgreement.
16.2
EffectsofTermination.
Upon
anytermination
orexpirationof
thisAgreement:(a)anyamounts
owed
to
SdNcenter
under this Agreement before such termination or expiration will be immediately
due and payable, unless the Agreement is terminated arising from an uncured
breachby
SdNcenter
under
Section
16.1;
(b)
all
rights and licenses granted to Licensee in this Agreement will immediately
cease to exist; and (c) Licensee must promptly discontinue all use of the
Software, erase all copies of the Software from Licensee’s computers, andreturn or destroy all copies of the Software on tangible media in Licensee’s possessionorcontrol.
Attherequestof
SdNcenter,
Licensee(or
an officer of Licensee, if Licensee is an entity or organization) will certify
inwriting
to
SdNcenter
that
Licenseehas
fully
complied with all requirements of this Section 16.2. Sections 9, 11, 12.2,
12.3, 16, 17.2, 18, and 19 will survive termination or expiration of thisAgreement for any reason.
17. INDEMNIFICATION.
17.1
By SdNcenter.

(a)
SdNcentershall
indemnify,
defend, and hold harmless Licensee and its officers, directors, employees,
representatives
andagents(collectively,“Licensee
Indemnitees“)

from and against any third party claim or action brought against any Licensee Indemnitee totheextent
such
claim
or
actionshows
that
the Software (when used by Licensee in accordance with this Agreement)
infringes or misappropriates any third party copyright, trademark or trade
secretorthat
SdNcenterknowingly
infringed
any
third party U.S. or Polish patent in the development of the Software. SdNcenter shall pay all
settlements
enteredintoanddamagesawardedagainstany
LicenseeIndemnitee(including reasonable attorneys’ fees) to the extent based on such a claim or
action. The foregoing obligations are conditioned on Licensee (i) notifying SdNcenter
promptly in writing of such action, (ii) giving SdNcenter sole control of the defense thereof
andanyrelatedsettlement
negotiations,
and
(iii)
cooperating
and,at
SdNcenter’s
requestandexpense,assistinginsuch defense.

(b) If the Software becomes, or in the reasonable opinion of SdNcenter may become, thesubject
of
any
claim
of
infringement,
SdNcenter
may,
at
its
option:(i)
procure for Licensee the right to use the Software in accordance with the termsof this Agreement free of any liability; (ii) replace or modify the Software to
make it non-infringing, provided that such replacement or modification remains
functionally equivalent; or (iii) if neither (i) nor (ii) is commerciallypracticable, terminate this Agreement on at least 30 calendar days’ written
notice to Licensee and refund Licensee the value of the infringing Software
upon such termination, computed according to a 36 month straight-line
amortization
schedule
beginningonthe
Effective
Date.
SdNcentershall not be liable for any costs or expenses incurred by Licensee inconnection with any claim of infringement without its prior written
authorization, provided that such exemption shall not apply if SdNcenter fails to fulfill its
obligations
pursuant
totheabove in a timely manner.

(c)
SdNcenter
shall
have
no
obligation under this Section 17.1 as to any claim or action caused by: (i) any
use, reproduction, or distribution of the Software not in accordance with thisAgreement; (ii) the combination, operation or use of the Software with othersoftware, hardware, equipment or data not furnished by
SdNcenter(whether furnished by Licensee or any third party), where the Softwareotherwise would not itself be infringing; (iii) use of other than a current
unaltered version or release of the Software, provided that such version orrelease had been made available to Licensee; or (iv) any modification of the
Softwarebyany
personother
than
SdNcenteroritsauthorized agents or contractors.

THIS
SECTION
17.1
STATES
SDNCENTER’SENTIRE LIABILITY AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT ORMISAPPROPRIATION CLAIMS OR ACTIONS.
17.2
By
Licensee.
Licenseeshall
indemnify,
defend,andholdharmless
SdNcenterand
its
officers,
directors,
employees,
representatives
andagents(collectively,“SdNcenterIndemnitees“)
fromandagainst
any
claim
or
action brought against, or any damage, loss, or liability suffered by, any SdNcenterIndemnitee,
andLicensee shall pay all settlements entered into and damages awarded against any
SdNcenterIndemnitee(including reasonable attorneys’ fees), arising from or relating to: (i) any
Custom Class built using extending .NET type functionality built into Runtime
Components, including without limitation any action claiming that a Generated
Proxy Class infringes or misappropriates any copyright, trade secret, or U.S.
or Polish patent; (ii) any breach by Licensee or an Authorized User of Sections
4, 5, 6, or 9, 11.2 or 19.2; or (iii) use, procurement, reproduction or
distribution of Licensee Works or the Runtime Components by Licensee,
Authorized Users, or other third parties. Licensee’s obligations under thisSection17.2
areconditionedon
SdNcenter
notifying
Licensee
promptly
inwritingofsuchaction,SdNcenter
giving Licensee sole control of the defense thereof and any related settlement
negotiations,
andSdNcentercooperating
and,atLicensee’s request and expense, assisting in such defense.
18.
LIMITATIONOF
LIABILITY.
IN
NO
EVENT
WILL
SDNCENTERORITS
LICENSORS BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY SPECIAL,INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THISAGREEMENT OR THE SOFTWARE OR THE USE OR INABILITY TO USE THE SOFTWARE OR ANYDATA SUPPLIED WITH THE SOFTWARE (INCLUDING, WITHOUT LIMITATION, ANY LOSTREVENUE OR PROFITS, LOST DATA, OR INTERRUPTION OF BUSINESS), EVEN IF SDNCENTER
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOTSUCH LOSS OR DAMAGES ARE FORESEEABLE. THE TOTAL CUMULATIVE LIABILITY OF
SDNCENTER
RELATING TO THIS AGREEMENT OR THE SOFTWARE OR THE USE OR INABILITY TO USE THE
SOFTWARE OR ANY DATA SUPPLIED WITH THE SOFTWARE, WHETHER IN CONTRACT OR TORTOROTHERWISE, SHALL NOT EXCEED THE ACTUAL AMOUNTS RECEIVED BY SDNCENTER FROM
LICENSEE (IF ANY) FOR THE SOFTWARE UNDER THIS AGREEMENT DURING THE 3 MONTHPERIOD PROCEEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. LICENSEEACKNOWLEDGESTHAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND
THAT SDNCENTER WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONSONITS LIABILITY. THE LIMITATIONS IN THIS SECTION 18 WILL APPLY REGARDLESS OF
WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR
OTHERWISE.
19. ADDITIONAL PROVISIONS.
19.1
U.
S.
Government
End
Users.
The
Softwareisa“commercial item” as that term is defined at FAR 2.101 (Oct 1995),
consistingof“commercial
computersoftware”
and“commercial
computer software documentation” as such terms are used in 48 C.F.R.
12.212 (Sep 1995) and is provided to the U.S. Government only as a commercial
end item. Consistent with FAR. 12.212 and DFARS 227.7202 (Jun 1995), all U.S. Government
End
Users
acquire the Software with only those rights set forth herein.
19.2
Compliance
with
Laws.
Licenseeshallcomplywithall applicable laws concerning its use of the Software. In particular, Licensee
acknowledges that the Software is subject to U.S. or Polish export control laws
and may be subject to export or import regulations in other countries andagrees to comply with all such laws and regulations and acknowledges that it
has the responsibility to obtain such licenses to export, re-export, or importas may be required. Licensee may not directly or indirectly transfer the
Software, including its Documentation, to any country if such transfer would beprohibitedbyapplicablelaw,
including
the
U.S.
or
PolishExportAdministration Act and the regulations issued thereunder. Licensee agrees tothe foregoing and Licensee is representing and warranting that Licensee is not
located in, under the control of, or a national or resident of any suchcountry.
19.3
ChangestotheSoftware.
SdNcenter
reserves the right at any time not to release or to discontinue release of any
Software
and
to
alter
features,specifications,capabilities,functions,licensing terms, release dates, general availability or other characteristics
of any future releases of the Software.
19.4
Governing
Law;
Venue
and
Jurisdiction.
This
Agreement will be governed by the laws of the Warsaw, Poland, without regard toor application of conflicts of law rules or principles. The parties expressly
exclude (as may be applicable) the application of the UN Convention on theInternational Sale of Goods. The parties further agree that the Hague
Convention, including the provisions of the Hague Convention on the Taking of
Evidence, shall not apply to any proceeding to enforce the Agreement or any
right or dispute originating under the Agreement.

19.5
Modification.
Exceptasexpressly
setforth
in this Agreement, this Agreement may be amended or modified only by asubsequent written amendment signed by the authorized representatives of bothparties. Except for any terms or conditions included in an Order
acceptedby
SdNcenter,
the
or
terms
or
conditionson
any purchase order or similar document provided by Licensee will have no force
or effect and will not serve to modify the terms of this Agreement.
19.6
Severability.
If
anyprovisionof
thisAgreement is held to be unenforceable, that provision will be changed andinterpreted to accomplish the objectives of such provision to the greatest
extent possible under applicable law and the remaining provisions will remaininfullforce.
Without
limitingthegeneralityoftheforegoing,
Licensee agrees that Section 18 will remain in effect notwithstanding theunenforceability of any provision in Section 12.2.
19.7
Waiver.
All
waiversunder
thisAgreement
must
be
in
writing.
Any waiver or failure to enforce any provision of this Agreement on one
occasion will not be deemed a waiver of any other provision or of suchprovision on any other occasion.
19.8
Notice.
All
notices,consents,
andapprovals
underthis Agreement must be delivered in writing by electronic mail, courier,electronic facsimile, or certified or registered mail (postage prepaid andreturn receipt requested) to License at the address for Licensee set forth on
any
Order
placedbyLicenseeandtoSdNcenterattheaddress for SdNcenter set forth on the then-current SdNcenter web site. All notices will beeffectiveupon
receipt or 3 business days after being deposited in the mail, whichever occurs
sooner. Either party may change its address by giving notice of the new address
to the other party.
19.9
Court
Costs.
If
any
proceedingorlawsuitisbrought
bySdNcenterorLicenseeinconnection
withthis Agreement, the prevailing party in such proceeding or lawsuit shall beentitled to receive its costs, expert witness fees and reasonable attorney’s
fees, including costs and fees on appeal. The failure of either party to require
performance by the other party of any provision hereof shall not affect thefull right to require such performance at any time thereafter; nor shall thewaiver by either party of a breach of any provision hereof be taken or held tobe a waiver of the provision itself.

19.10Assignment.
Neitherthis
Agreementnor
anyrightsorobligations of Licensee hereunder may be assigned by Licensee in whole or inpart (by operation of law or otherwise) without the prior written approval of SdNcenter,
provided,
however,that
ifLicenseeisanentity or organization and enters into a merger or consolidation of Licensee,
or if any entity purchases or otherwise acquires all, or substantially all, of
the assets of that segment of Licensee’s business relating to the subject
matter of this Agreement, Licensee shall be able to assign this Agreement as awhole to the surviving corporation or purchasing or acquiring entity following
noticeto
SdNcenter,
providedthatsuchsurvivingor
acquiring entity first agrees in writing to be bound by the terms andconditionsof
thisAgreement.
SdNcentermayassignthis Agreement, and any rights or obligations of Licensee hereunder, without
the consent of Licensee. Any assignment in derogation of the foregoing shall benull and void. This Agreement shall inure only to the benefit of SdNcenter, Licensee, and theirvalid
successors
andassigns.
19.11
Remedies.
Exceptasexpressly
providedinthis Agreement, the parties’ rights and remedies under this Agreement are
cumulative. Licensee acknowledges that the Software contains valuable
trade secrets and proprietary information of SdNcenter, that any actualor threatened breach of Sections 4, 5, 6, 7 and 9 will constitute immediate,
irreparable
harm
to
SdNcenterforwhichmonetary
damageswould be an inadequate remedy, and that injunctive relief is an appropriate
remedy for such breach. If any legal action is brought to enforce thisAgreement, the prevailing party will be entitled to receive its attorneys’
fees, court costs, and other collection expenses, in addition to any otherrelief it may receive.