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<br />ACTIVEG MAXIMO MAPENGINE SOFTWARE LICENSE AND MAINTENANCE AGREEMENT
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<br />Grant of Right. Subject to the terms and conditions of this Agreement,
<br />ACTIVEG hereby grants to Licensee and Licensee hereby accepts, a non-
<br />exclll~ive, non-transferable, perpetual license to use the Licensed Software.
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<br />Ter 'his Agreement shall take effect upon the date first set forth (the "Effective
<br />Dat' nd shall continue unless terminated in accordance with the terms of this
<br />Agn:t:IIlt:nt
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<br />Additional Software. Additional copies of the Licensed Software may be
<br />requested by Licensee after the Effective Date hereof upon issuance by Licensee of
<br />a purchase order; provided, however, that acceptance of such purchase order by
<br />ACTIVEG is subject to ACTIVEG's sole discretion and all additional Licensed
<br />Software shall be provided at ACTIVEG's then-current License Fees (as defined
<br />below) and on the terms and conditions set forth in this Agreement All orders are
<br />subject to credit approval and no order shall be deemed accepted by ACTIVEG
<br />until the earlier of the date on which ACTIVEG (i) has accepted the purchase order
<br />in writing, or (ii) has shipped the Licensed Software to Licensee. Any provision of
<br />Licensee's purchase order (whether issued prior to or after the date of this
<br />Agreement) which is inconsistent with or in addition to the terms and conditions of
<br />this A~eeme~t shall not be binding upon ACTIVEG unless ACTIVEG expressly
<br />agrees m a wntmg separate from the purchase order to such provision.
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<br />Qnotations. Any quotation issued by ACTIVEG is subject to the terms and
<br />conditions set forth in this Agreement No quotation shall be valid unless in
<br />writing, and any quotation shall expire sixty (60) days after issuance, unless
<br />otherwise specified in writing by ACTIVEG.
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<br />License Fees. Licensee shall pay to ACTIVEG the license fee for the Licensed
<br />Software ("License Fee"), and the annual fee for ACTIVEG's Annual Customer
<br />Support Plan ("ACSP") if purchased hereunder, in the amounts set forth in
<br />ACTIVEG's current U.S. price list ("U.S. Price List") or as otherwise agreed to by
<br />the parties in writing, without set-off or deduction whatsoever, within thirty (30)
<br />days of the later of the date of invoice or the date of shipment ACTIVEG reserves
<br />the right to modify its U.S. Price List at any time without notice to Licensee.
<br />Should ACTIVEG not receive payment on or before the date it is due, Licensee
<br />shaJ 1 to ACTIVEG interest on the amount payable to ACTIVEG at a rate equal
<br />to t! wer of (i) one and one-half percent (I 1/2%) of the amount due for each
<br />mOl ayment remains delinquent or (ii) the maximum rate of interest allowable
<br />und .lplicable law, calculated from the due date. All fees are accountable and
<br />payable in U.S. dollars.
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<br />Annual Customer Support Plan. If Licensee purchases ACTIVEG's Annual
<br />Customer Support Plan ("ACSP"), Licensee shall be entitled to receive the
<br />maintenance and support services described in Section I of this Agreement for a
<br />period of one year commencing upon the expiration of the 90 day Warranty period
<br />described in Section 5 of this Agreement Once Licensee has purchased ACSP,
<br />ACSP shall automatically renew, and ACTIVEG will invoice licensee, for an
<br />additional one-year term at that time. Licensee shall notify ACTIVEG in writing
<br />before the end of the then-current ACSP term that Licensee does not wish to
<br />purchase ACSP for the next year. If Licensee does not purchase ACSP or fails to
<br />make timely payment of any ACSP Fee due upon renewal of ACSP, ACTIVEG
<br />shall have no obligation to provide Licensee with any maintenance or support
<br />services in connection with the Licensed Software. ACTIVEG may adjust the term
<br />of any ACSP period to become coterminous with existing Licensed Software.
<br />ACSP fees are based on base package cost and the number of installed users.
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<br />1. Support and Maintenance.
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<br />Problem ReDorting Procedure. During the Warranty Period described in Section 5
<br />of this Agreement and for so long as Licensee has purchased ACSP, Licensee may
<br />report errors or problems with the Licensed Software to ACTIVEG by telephone,
<br />email, fax, or mail, during ACTIVEG's normal business hours, Monday to Friday
<br />(except holidays observed by ACTIVEG) 8:00 a.m. to 5:00 p.m. M.S.T.
<br />ACTIVEG may change its normal business hours from time to time upon notice to
<br />Licensee. ACTIVEG can be reached currently at 480 610 0839 (phone) or 480835
<br />6835 (fax). In any event, Licensee shall send written notice of suspected errors to
<br />ACTnrSG at its discretion. Licensee shall cooperate with ACTIVEG to provide
<br />mOl 'ormation concerning any suspected error or problem reported by Licensee.
<br />Up( :rification by ACTIVEG of a reported error, ACTIVEG's obligation shall
<br />be t wide a software update or workaround to correct or address such error.
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<br />Enhancements. ACTIVEG shall provide, to Licensees who have purchased ACSP,
<br />Enhancements to the Licensed Software. For purposes of this Agreement,
<br />"Enhancements" shall mean updates, improvements, or revisions to the Licensed
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<br />Rev. 112001
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<br />Software that ACTIVEG generally provides to its U.S. licensees who have
<br />purchased ACSP without additional payment If ACTIVEG issues an
<br />Enhancement, Licensee shall install and begin using the Enhancement as
<br />appropriate.
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<br />New Versions. From time to time, ACTIVEG may issue new versions or releases
<br />of the Licensed Software (a "New Release") that supersede the prior release (the
<br />"Superseded Release"). If ACTIVEG issues a New Release at no additional charge
<br />to Licensee, Licensee shall install and begin using the New Release. In no event
<br />shall ACTIVEG be required to provide maintenance and support services for any
<br />Superseded Release in accordance with Section I at any time after one (I) year
<br />from the U.S. release date of the New Release.
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<br />No ACSP. If Licensee has not purchased ACSP and at some future date wishes to
<br />obtain an Enhancement to or New Release of the Licensed Software such
<br />Enhancement or New Release shall only be licensed to Licensee if Licensee ;ays to
<br />~CTIVEG the then-current ACSP Fee and all ACSP Fees for the period elapsed
<br />smce the end of the Warranty Period or since the expiration of the last ACSP
<br />period for which. Licensee paid the ACSP Fee, whichever is less, or the then-
<br />current applicable License Fee for the New Release.
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<br />2. Ownership of the Licensed Software.
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<br />OwnershiD. ACTIVEG and its licensors own all right, title and interest in the
<br />Licensed Software throughout the world, including without limitation, patent,
<br />copyright and trade secret rights. Licensee acknowledges and agrees that the
<br />Licensed Software constitutes a valuable trade secret asset of ACTIVEG.
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<br />Indemnification. ACTIVEG shall defend or, at its option, settle any claim, action
<br />or proceeding brought against Licensee that the Licensed Software infringes any
<br />U.S. patent, copyright or trade secret, and shall indemnify Licensee against all
<br />damages and costs finally awarded against Licensee in any such action or
<br />proceeding which results from any such claim. ACTIVEG shall have no liability
<br />under this Section unless Licensee (a) promptly notifies ACTIVEG in writing of
<br />the claim, action or proceeding, (b) gives ACTIVEG full authority, information and
<br />assistance to defend such claim, action or proceeding and (c) gives ACTIVEG sole
<br />control of the defense of such claim, action or proceeding and all negotiations for
<br />the compromise or settlement thereof. If the Licensed Software or any part thereof
<br />becomes, or in ACTIVEG's opinion is likely to become, the subject of a valid
<br />claim of infringement or the like under any U.S. patent, copyright or trade secret
<br />law, ACTIVEG shall have the right, at its option and expense, either (i) to obtain a
<br />license permitting the continued use of the Licensed Software or such part, (ii) to
<br />replace or modify it so that it becomes non-infringing, or (iii) to terminate the
<br />license thereof and refund the depreciated value of the License Fee paid.
<br />ACTIVEG shall have no liability hereunder for any costs incurred by Licensee or
<br />for any settlement entered into without its prior written consent ACTIVEG shall
<br />have no liability hereunder with respect to any claim based upon (a) the
<br />combination of the Licensed Software with other products not furnished by
<br />ACTIVEG, (b) any addition to or modification to the Licensed Software other than
<br />as specifically defined in the MAPENGINE Administrator's Guide, or (c) use of a
<br />Superseded Release of the Licensed Software.
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<br />The indemnity provision set forth above is in lieu of all other obligations, including
<br />without limitation the implied warranty of noninfringement, and state the sole,
<br />exclusive and entire liability of ACTIVEG and its licensors, and the sole, exclusive
<br />and entire remedy of Licensee, with respect to any claim of patent, copyright or
<br />trade secret infringement by the Licensed Software.
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<br />Licensed Software (including Documentation). ACTIVEG shall provide to
<br />Licensee a master copy and one set of documentation to be installed on a single
<br />server. Any additional hard copies of the user documentation may be purchased
<br />separately at the then-current price.
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<br />No CODving. Except as required by law, Licensee may not copy the Licensed
<br />Software or any other Confidential Information ( as defined below) of ACTIVEG
<br />in whole or in part, except that Licensee may make copies of the Licensed Software
<br />for archival or backup purposes. Licensee shall not remove any patent, trademark,
<br />copyright, restricted rights, limited rights, proprietary rights or confidentiality
<br />notice included in or affixed to the Licensed Software or any other Confidential
<br />Information of ACTIVEG and shall reproduce all such notices in or on all copies of
<br />the Licensed Software or Confidential Information of ACTIVEG made by Licensee
<br />in accordance with this Agreement
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<br />Copyright@ 2001, activeG, LLC
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