IMPORTANT! BEFORE GOING ANY FURTHER, PLEASE READ AND ACCEPT THE TERMS IN THE FILE "LICENSE"


CAPE CLEAR SOFTWARE, INC. STANDARD CLICK-WRAP TERMS AND CONDITIONS

YOU ("CUSTOMER") SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING THIS COMPUTER PROGRAM(S) AND DOCUMENTATION. CAPE CLEAR SOFTWARE, INC. ("CAPE CLEAR") IS ONLY WILLING TO PROVIDE THIS COMPUTER PROGRAM(S) AND ANY RELATED DOCUMENTATION TO YOU UPON THESE TERMS AND CONDITIONS. BY CLICKING ON THE "ACCEPT" BUTTON, YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ACKNOWLEDGING YOUR AUTHORITY TO DO SO ON BEHALF OF YOUR COMPANY (IF APPLICABLE). IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, CLICK THE "DO NOT ACCEPT" BUTTON AND THE INSTALLATION PROCESS WILL NOT CONTINUE.

TERMS AND CONDITIONS

1.  GRANT OF LICENSE:  CAPE CLEAR grants to Customer a non-exclusive, non-transferable, limited license (the "License") to operate the computer programs (the "Software"), installed on the number of central processing units ("CPU") as defined and specified in the Purchase Documentation (as defined below), in accordance with the user documentation (the "Documentation") thereto (collectively, the "Product") included in this installation and identified in a notification of purchase provided by CAPE CLEAR to Customer which shall establish the Licenses which have been granted and the services which are to be provided under this Agreement (the "Purchase Documentation"), solely for Customer's internal business operations and not for general production or commercial use whatsoever (Customer may not utilize development licenses, and must acquire deployment licenses from CAPE CLEAR in order, to deploy any Applications (as defined below) internally), for the sole purpose of developing solutions and/or applications (whether incorporating Customer's own software and/or other third party software) which incorporate or make use of the Product in whole or in part ("Applications"). The parties agree that in the event of a conflict between the terms and conditions of this Agreement and any Purchase Documentation, the terms and conditions of the Purchase Documentation shall supersede, govern and control. A separate license is required for each CPU and/or "User" (meaning any individual who utilizes the Software in any manner) which accesses the Software; and only one copy of the Software may be licensed per instance of the Software and/or per machine. If no equipment is specified in the Purchase Documentation, this license is restricted to a single CPU and User. In addition, test licenses are restricted only to Customer's internal use of Software solely for testing purposes of Applications and not for any internal deployment and/or utilization. In the absence of any associated "Purchase Documentation" this license will be deemed to be for evaluation purposes only and is only valid for a twenty-eight (28) day period immediately following the date the license was issued. No right is granted to sell, license, sublicense, embed, lease, rent or otherwise transfer the Software or use the Software for third party training, commercial time-sharing, hosting, application service provision or service bureau use, or allow any third party to have access to or use the Software for any reason. The term "Product" includes all Product updates and new versions of the Software and/or Documentation. From time to time after the date hereof Customer may wish to license additional copies of the Product. Such additional software programs will be deemed "Software" subject to the terms and conditions of this Agreement upon CAPE CLEAR's acceptance of Customer's order of such software programs.

2.	OWNERSHIP OF THE PRODUCT; RESTRICTIONS ON USE:  CAPE CLEAR (or its licensors) owns and will retain all patent, copyright, trademark, trade secret and other proprietary rights in and to the Product. Customer's rights are limited to the License and the terms of this Agreement.
(a)	Customer shall NOT make any copies of all or any part of the "Confidential Information" (meaning the Product, all  parts, copies and modifications thereof and any other information, in whatever form, received by Customer from CAPE CLEAR which is identified as being proprietary or confidential at the time of disclosure or should reasonably be understood to be proprietary; provided, however, such information shall not be deemed Confidential Information if Customer can clearly establish by written evidence that it (a) is or becomes a part of the public domain through no act or omission of Customer; or (b) was in Customer's lawful possession prior to the disclosure and had not been obtained by Customer from CAPE CLEAR; or (c) is lawfully disclosed to Customer by a third party without restriction on disclosure; or (d) is independently developed by Customer without the use of any Confidential Information), except that Customer may make one copy of the Software for archival purposes only. 
(b)	Customer shall NOT translate, decompile, disassemble, reverse engineer or otherwise reduce the Software code, in whole or in part, to a human readable form.  
(c)	Customer shall NOT remove from any part of the Confidential Information any notice of proprietary rights or any disclaimer and shall ensure that all proprietary rights notices on Confidential Information are reproduced and applied to any authorized copies. 
(d)	Customer shall NOT sell, license, sub-license, rent or otherwise transfer the Product or License without the written permission of CAPE CLEAR.
(e)	Customer shall NOT modify the Product, merge it with other software or documentation or create derivative works based in whole or in part, on the Product.
	(f) 	Customer shall NOT disclose or permit others to have access to the Confidential Information or any results of benchmark tests, including without limitation by means of timesharing, hosting, application service provision, remote computing services, networking and/or batch processing, unless CAPE CLEAR consents to such disclosure in writing,, and Customer shall limit any disclosure to Customer's bona fide employees whose access is necessary to effect the purposes of this Agreement. Such employees shall be notified by Customer that any disclosure under this Agreement is made in confidence and shall be kept in confidence, and shall be subject to a binding agreement with Customer to protect the confidentiality of Confidential Information. Customer shall be responsible for any use or disclosure of Confidential Information by any of Customer's employees or agents, and shall protect the disclosed Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized dissemination or publication of the Confidential Information as Customer uses to protect Customer's own confidential information. The provision of this Section 2(f) shall survive termination or expiration of this Agreement for five (5) years thereafter, except that any restrictions on source code will survive indefinitely.
	(g)	Customer shall NOT, by itself or with others, participate in any illegal, deceptive, misleading or unethical practices including, but not limited to, disparagement of the Product or CAPE CLEAR or other practices which may be detrimental to the Product or CAPE CLEAR.
	(h)	Without prejudice to the foregoing, Customer shall take all such other steps as shall from time to time be necessary to protect CAPE CLEAR's Confidential Information and intellectual property rights in the Product.  

3.	TERM AND TERMINATION: The term of this Agreement and the License will continue until Customer returns all copies of the Product to CAPE CLEAR or this Agreement is terminated. CAPE CLEAR may terminate this Agreement by written notice to Customer specifying Customer's failure or default in the performance of any provisions of this Agreement and Customer fails to cure said failure or default to the satisfaction of CAPE CLEAR within ten (10) days after such notice. Notwithstanding the foregoing, this Agreement shall immediately terminate if (i) any proceeding in bankruptcy, receivership, liquidation, or insolvency is commenced by or against Customer; and/or (ii) Customer assigns or purports to assign the burden or benefit of this Agreement or otherwise dispose of any rights hereunder without CAPE CLEAR's prior written consent. Within five (5) days after termination of this Agreement, Customer will return all copies of the Product to CAPE CLEAR or destroy all copies of the Product, and have an appropriate authorized representative certify in writing the return or destruction of all copies of the Product. Upon termination, Customer shall immediately pay CAPE CLEAR the total fees depicted on any and all Purchase Documentation for Product, professional services and Technical Support. Customer will reimburse CAPE CLEAR for all reasonable costs incurred by CAPE CLEAR (including attorneys' fees) in collecting past due amounts hereunder. Any non-remedial breach shall entitle CAPE CLEAR to terminate this Agreement and all Licenses hereunder immediately upon written notice to Customer. This remedy shall not be an exclusive remedy and shall be in addition to any other remedies which CAPE CLEAR may have under this Agreement or otherwise.

4.	PAYMENT: All shipments to Customer hereunder, if any, shall be F.O.B. CAPE CLEAR's facility.  All costs for shipping and insurance shall be paid by Customer and risk of loss shall pass to Customer upon delivery to the carrier. All fees for Product licenses, Technical Support and/or professional services shall be due and payable by Customer thirty (30) calendar days after CAPE CLEAR's invoice date, unless otherwise specified in the Purchase Documentation. Customer shall pay to CAPE CLEAR interest of one percent (1%) compounded monthly or the maximum legal rate in effect, whichever is less, on any amount not paid when due. The fees for Product licenses, Technical Support and/or professional services purchased by Customer shall be non-refundable and non-cancellable. Except for taxes based upon CAPE CLEAR's net income, all prices and fees are exclusive of all sales, use or all other taxes, however designated or levied against the sale, licensing, delivery or use of the Product or any service. Any such tax CAPE CLEAR may be required to collect or pay shall be paid by Customer to CAPE CLEAR. If Customer is required by law to make any deduction or to withhold from any sum payable to CAPE CLEAR by Customer hereunder, then the sum payable by Customer upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after all deduction and withholding, CAPE CLEAR receives and retains, free from liability for any deduction or withholding, a net amount equal to the amount CAPE CLEAR would have received and retained in the absence of required deduction or withholding. In addition to the price of any on-site services ordered by Customer, Customer shall reimburse CAPE CLEAR for reasonable food, lodging, and travel expenses incurred by CAPE CLEAR's employees in conjunction with any such services ordered by Customer.  If such services are performed at CAPE CLEAR's premises, similar expenses incurred by Customer's employees shall be borne solely by Customer.

5.	CUSTOMER'S RESPONSIBILITIES FOR SELECTION AND USE:  Customer is responsible for the supervision, management and control of the use of the Product, and output of the Product, including, but not limited to: (1) selection of the Product to achieve Customer's intended results; (2) determining the appropriate uses of the Product in Customer's business; (3) establishing adequate independent procedures for testing the accuracy of the Product; and (4) establishing adequate backup to prevent the loss of data in the event of a Product malfunction.

6.	LIMITED WARRANTY; EXCEPTIONS AND DISCLAIMERS: Limited Warranty.  Subject to the other provisions in this Agreement, CAPE CLEAR warrants that the Product will substantially conform to the Documentation for a period of ninety (90) days after delivery to Customer. CAPE CLEAR's sole responsibility under this warranty will be, at its option, (1) to use reasonable efforts to correct such Product nonconformance or (2) to refund the license fee paid for the Product upon its return.  CAPE CLEAR does not warrant that the Product will be error free; that the use of the Product will meet Customer's requirements; nor that all Product errors will be corrected.  

Exceptions.  CAPE CLEAR's warranty does not apply insofar as: (1) any Product is subjected to misuse, neglect, accident or exposure to environmental conditions beyond those specified by CAPE CLEAR; (2) claims result from acts or omissions caused by persons other than CAPE CLEAR or from products, material or software not provided by CAPE CLEAR; (3) claims are not reported in writing to CAPE CLEAR within the warranty period and not documented by Customer; or (4) Customer uses a version of the Product that does not include all updates available from CAPE CLEAR.

Limitations on Warranties.  THE EXPRESS WARRANTY SET FORTH IN THIS SECTION 6 IS THE ONLY WARRANTY GIVEN BY CAPE CLEAR WITH RESPECT TO THE PRODUCT OR ANY MATERIALS OR SERVICES FURNISHED HEREUNDER; CAPE CLEAR MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, AND SPECIFICALLY DISCLAIMS THE WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.  ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CAPE CLEAR OR ITS AUTHORIZED REPRESENTATIVES SHALL NOT CHANGE THE SCOPE OF THIS WARRANTY. CAPE CLEAR SHALL NOT BE RESPONSIBLE FOR THE PERFORMANCE OF OUTPUT OBTAINED FROM THE SOFTWARE NOR FOR ANY LIABILITY TO ANY PARTY ARISING OUT OF USE OF THE PRODUCT. CUSTOMER SHALL NOT BE ENTITLED TO BRING ANY CLAIM, ACTION OR PROCEEDING ARISING OUT OF THE WARRANTY SET FORTH IN THIS SECTION 6 MORE THAN NINETY DAYS AFTER THE DATE ON WHICH THE BREACH OF WARRANTY OCCURRED.

7.	LIMITATIONS OF LIABILITY AND REMEDIES: (a) THE LIABILITY OF CAPE CLEAR AND ITS LICENSORS IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THE PRODUCT OR ANY MATERIALS OR SERVICES FURNISHED HEREUNDER SHALL NOT EXCEED THE LICENSE FEE CUSTOMER PAID FOR THE APPLICABLE COPY OF THE PRODUCT AND/OR PARTICULAR SERVICE THAT GAVE RISE TO ANY CLAIM.  IN NO EVENT SHALL CAPE CLEAR OR ITS LICENSORS BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, TORT (INCLUDING NEGLIGENCE) OR CONSEQUENTIAL DAMAGES (INCLUDING ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE PRODUCT OR ANY MATERIALS OR SERVICES FURNISHED HEREUNDER OR FROM CAPE CLEAR's PERFORMANCE OF SERVICES, EVEN IF CAPE CLEAR OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
		(b) Customer acknowledges that CAPE CLEAR has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.  
(c) Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations of Sections 6 and 7 may not apply.  
(d)  Nothing in this Section shall confer any right or remedy upon Customer to which it would not otherwise be legally entitled.  

8. INDEMNITIES:  Customer shall indemnify CAPE CLEAR, and hold CAPE CLEAR harmless, from and against any and all losses, claims, damages, costs, charges, expenses, liabilities, demands, proceedings and actions which CAPE CLEAR may sustain or incur, or which may be brought or established against CAPE CLEAR by any person, which in any case arise out of or in relation to, or by reason of:  
(a)  any breach by Customer of its obligations under this Agreement;   
(b)  any unauthorized action or omission of Customer or its employees or staff;   
(c)  any alteration, modification, adjustment or enhancement made, not by CAPE CLEAR, to the Product; and/or  
(d) any combination, connection, operation or use of the Product with any other equipment, software or documentation not supplied by CAPE CLEAR.  

9.  INTELLECTUAL PROPERTY INFRINGEMENT INDEMNITY:  CAPE CLEAR shall defend or, at its option, settle, any claim, action or proceeding brought against Customer on grounds (a) that any Product infringes a patent, copyright, trade secret or other proprietary right or (b) that CAPE CLEAR does not have the right to grant the licenses granted herein, and shall indemnify Customer against all damages and costs finally awarded against Customer in any such action or proceeding which results from any such claim, and reasonable expenses (including reasonable attorneys' fees) incurred in connection with such claim. CAPE CLEAR shall have no liability under this Section 9 unless Customer (c) promptly notifies CAPE CLEAR in writing of the claim, (d) gives CAPE CLEAR full authority, information and assistance, at CAPE CLEAR's sole expense, to defend such claim and (e) gives CAPE CLEAR sole control of the defense of such claim and all negotiations for the compromise or settlement thereof.  If a Product or any part thereof becomes, or in CAPE CLEAR's opinion is likely to become, the subject of a valid claim of infringement or the like under any patent, copyright, trade secret or other proprietary right law, CAPE CLEAR shall have the right, at its option and expense, either to obtain for Customer a license permitting the continued use of the Product or such part, to replace or modify it so that it becomes non-infringing, or to refund an amount equal to the depreciated license fee paid by OEM for the Program (calculated on a straight line basis over a five-year life) and to terminate the license therefor. CAPE CLEAR shall have no liability hereunder for any costs incurred or settlement entered into without its prior written consent. CAPE CLEAR shall have no liability hereunder with respect to any claim based upon (f) the operation of an Application or the combination of the Product with other products not furnished by CAPE CLEAR, (g) any addition to or modification to the Product by any person or entity other than CAPE CLEAR, (h) the use of other than a  new version of a Product which is made generally available to CAPE CLEAR's customers and provided to Customer, or (i) CAPE CLEAR furnishing to Customer any information, data, service and applications assistance, other than the Product. THE PROVISIONS OF THIS SECTION 9 STATE THE EXCLUSIVE LIABILITY OF CAPE CLEAR AND THE EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY CLAIM OF PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHT INFRINGEMENT BY THE PRODUCT OR CLAIM THAT CAPE CLEAR LACKS THE RIGHT TO GRANT THE LICENSES GRANTED HEREIN, ANY PART THEREOF OR THE USE THEREOF, AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF NON-INFRINGEMENT, AND INDEMNITIES WITH RESPECT THERETO.

10.	TECHNICAL SUPPORT AND SERVICES: The services described in CAPE CLEAR's then-current and applicable Technical Support Service Policy, a copy of which is available at Customer's request ("Technical Support") that Customer orders and pays for will be provided in accordance with CAPE CLEAR's then-current and applicable Technical Support Service Policy at applicable fees. CAPE CLEAR will provide professional services, on strictly a time and materials basis, ordered by Customer, in accordance with CAPE CLEAR's standard professional services terms and conditions which are incorporated herein by reference, at the then-current CAPE CLEAR price list and any relevant CAPE CLEAR work order. Any ideas, know-how, techniques and software which may be developed by CAPE CLEAR in connection with Technical Support and/or professional services, including any enhancements or modifications made to the Products, shall be the sole property of CAPE CLEAR and subject to this Agreement. 

11.	U.S. GOVERNMENT RESTRICTED RIGHTS: If Customer is an agency or contractor of the United States Government, Customer acknowledges and agrees that (i) the Product was developed entirely at private expense, (ii) the Product in all respects is proprietary data belonging solely to Cape Clear Software, Inc. or its licensors, (iii) the Product is not in the public domain, and (iv) the Product is "Commercial Computer Software" as defined in sub-paragraph (a)(1) of DFAR Section 252.227-7014.

12. GENERAL PROVISIONS: This Agreement, including any applicable Purchase Documentation, represents the entire agreement between Customer and CAPE CLEAR with respect to the Product and subject matter hereof, and supersedes all prior proposals, representations and agreements, whether written or oral, with respect thereto. It is expressly agreed that any terms and conditions of a purchase order and/or any other document issued by Customer in relation towards the order of the Product and supported licenses, Technical Support and/or professional services shall be superseded by the terms and conditions of this Agreement. This Agreement may be amended or modified only by a written agreement executed by Customer and CAPE CLEAR. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provisions of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement. Neither party shall be liable for any reasonable delays in the performance of any of its obligations, with the exception of payment obligations, hereunder due to war, acts of God, acts of terrorism, or other causes beyond its reasonable control. Neither party may assign this Agreement or any of its rights hereunder without the prior written consent of the other party, except that CAPE CLEAR may assign this Agreement as part of a corporate reorganization or to a successor to that part of CAPE CLEAR's business related to licensing the Product or a purchaser of substantially all the assets of CAPE CLEAR and/or the Product. The failure of CAPE CLEAR at any time or times to require performance of any provision hereof shall in no manner affect the right at a later time to enforce such provision. The parties agree that they are independent contractors and that this Agreement and the relations between CAPE CLEAR and Customer hereby established do not constitute a partnership, joint venture, agency or contract of employment between them, or any other similar relationship. Customer may not export or re-export the Product without the appropriate United States and foreign government licenses. Customer's covenants and agreements in Section 2 hereof are of a special and unique character, and Customer acknowledge that money damages alone will not reasonably or adequately compensate CAPE CLEAR for any breach of such covenants and agreements.  Therefore, Customer and CAPE CLEAR expressly agree that in the event of the breach or threatened breach of any such covenants or agreements, in addition to other rights or remedies which CAPE CLEAR may have, at law, in equity, or otherwise, CAPE CLEAR shall be entitled to injunctive or other equitable relief compelling specific performance of, and other compliance with, the terms of such Section. During the term of this Agreement, and for a period of one year thereafter, Customer agrees not to solicit, induce, attempt to hire or hire any employee of CAPE CLEAR, or assist in such hiring by any other person or business entity or encourage any such employee to terminate his or her employment with CAPE CLEAR, without prior written consent of CAPE CLEAR. For the term of this Agreement and one year thereafter, CAPE CLEAR shall have the right, at its own expense and under reasonable conditions of time and place, to from time to time have an independent auditor audit and copy all records of Customer relating to any of Customer's obligations under this Agreement. In the event any such audit discloses any breach of the terms of this Agreement by Customer or its employees, agents or contractors, Customer shall, in addition to such other rights and remedies as may be available to CAPE CLEAR as the result of such breach, pay to CAPE CLEAR the full cost of such audit and copying, and all costs and expenses required to collect any underpaid amounts, if any, including, but not limited to, reasonable attorneys' fees, court costs, and expert witnesses, incurred in connection therewith. Any notices required or permitted hereunder shall be given in writing. Either party may, with the other's express written consent, which consent shall not be unreasonably withheld or delayed, publicize the existence and general nature of the relationship established by this Agreement through mutually agreed upon press releases and other marketing collateral. The terms of this Agreement shall be construed in accordance with the substantive laws of The Commonwealth of Massachusetts, USA without regard to its principles of conflict of law or the U.N. Convention on Contracts for the International Sale of Goods. The provisions of Sections 2, 3, 4, 6, 7, 11 and 12 shall survive the expiration or earlier termination of this Agreement for any reason.

Should you have any questions concerning this Agreement, please write: Cape Clear Software, Inc., 880 Winter Street, Waltham, MA  02451 Attn: Legal.




Clickwrap - Rev. 11-03                                     CAPE CLEAR SOFTWARE, INC. CONFIDENTIAL


