Panorama Necto License Agreement Please read this agreement carefully before purchasing, installing, copying, downloading or using a Panorama Software product and its documentation (“Software”). By installing or allowing others to install on your hardware, copying, downloading or using the Software, you and the legal entity you represent (“Licensee”) agree to be bound by the terms of this limited use license, WHEREAS Panorama Software (“Panorama”) agrees to grant Licensee a license for use of the Software in object code form under the terms and conditions set out in this Agreement. If Licensee does not agree with the terms of this Agreement, Panorama is unwilling to license the Software to Licensee. In such event, Licensee may not install, copy, download or use the Software and Licensee must return to Panorama the complete Software package, including the disks and printed materials or, if Licensee has downloaded the Software, Licensee must notify Panorama in writing that it has uninstalled the Software. If Licensee does not comply with this stipulation, Licensee will be obligated to pay the agreed upon order price for the Software license, and be bound by the standard terms. 1. LICENSE 1.1. Grant. Subject to the terms and conditions of this Agreement, Panorama hereby grants to Licensee a non-exclusive, non-transferable license to use the Software for internal business purposes only and only on the authorized number of CPUs and only by the authorized number of named users for which Licensee has paid Panorama the license fee as specified in the applicable purchase order accepted by Panorama. Panorama reserves the right the block any unauthorized user or the entire use of the Software if licensee will violate the aforesaid. All modules/components/products and services purchased by Licensee from Panorama are for use only as part of the Software application and not as stand alone. The Software is not sold but licensed. 1.2. No Copies. Licensee shall not copy or modify any portion of the Software other than that Licensee may make one (1) copy of that part of the computer directory containing the Software, solely for archival purposes. 1.3. Other Limitations. Licensee shall not: (i) Modify, cause or permit de-compilation, disassembly, reverse compilation or reverse assembly of all or any portion or otherwise attempt to derive the source code for the Software, except to the extent that applicable law prohibits or restricts this contractual limitation; (ii) Distribute, disclose, market, rent, lease or transfer to any third party any portion of the Software, or use the Software in any service bureau arrangement, facility management or third party training. (iii) Allow the Software be used by an End User who develops and/or distributes software applications which, in the reasonable opinion of Panorama, compete, directly or indirectly, with the Software; (iv) Export, re-export, or otherwise transmit, directly or indirectly, any software, information, data, or other materials received under this Agreement. (v) Allow the Software be used in any application or situation where any failure of the licensed products could lead directly to death, personal injury, or severe physical or environmental damage. Examples include using the Software for controlling the operation of: equipment in any nuclear facilities; aircraft navigation, communications or flight control systems; air traffic control systems; mass transit systems; medical equipment (but only in equipment with an FDA classification of 2 or 3, or an equivalent classification); weapons systems. 1.4. Hardware and/or Third Party Software. Panorama will not be responsible for the purchase of any hardware and/or third party software required for the use of the Software in order to meet Licensee's required use for the Software, and Licensee undertakes that any such required hardware or third party software will be purchased (if at all) by Licensee on its own account. 2. OWNERSHIP & CONFIDENTIALITY 2.1 Title. (i) Title to the Software is reserved to Panorama. Licensee acknowledges and agrees that Panorama is and will remain the owner of the Software and the content thereof and intellectual property rights, including, without limitation, copyright embodied therein or of which it is comprised, as well as any and all copies, modifications, alterations and enhancements to the Software, including any derivative works resulting therefrom; (ii) The Software was developed at private expense, is commercial, and is published and copyrighted. 2.2 Proprietary Information. Licensee agrees that the Software and all nonpublic computer codes, inventions, algorithms, and know-how embodied in or by the Software and all other business, technical and financial information Licensee obtains from Panorama, whether designated confidential or not (hereinafter referred to as 'Proprietary Information') are the confidential and proprietary property of Panorama. Licensee also agrees that any expression of Panorama's analyses, conclusions, enhancements, opinions, recommendations, ideas, techniques, know-how, designs, programs, findings, software, and other technical information provided to Licensee by Panorama in the course of performing consulting, training, maintenance or other services related to the Software, are the Proprietary Information of Panorama. Panorama agrees that any nonpublic information obtained from Licensee in the course of performing this Agreement, including during Panorama's provision support services, constitutes confidential and proprietary information of Licensee (“Licensee's Proprietary Information”). 2.3 Non-Disclosure. Each party agrees to keep the Proprietary Information of the other in a secure place, under access and use restrictions designed to prevent disclosure of the Proprietary Information to unauthorized persons and to instruct its personnel to keep such Proprietary Information confidential. 2.4 Breach. 2.4.1 Licensee agrees that any disclosure of the other party's Proprietary Information to a third party other than in accordance with the terms of this Agreement constitutes a material breach of this Agreement and will terminate the license(s) granted by this Agreement. 2.4.2 Books and Records/Audit Rights. (a) Licensee shall at all times keep accurate books and records showing all users relating to acquired licenses under this Agreement, including the identity and number of servers and named user seats and sessions where the Software are installed and/or accessed. (b) Panorama or its authorized representative shall have the right, at its own expense subject to part (c) of this Section, upon at least twenty-four (24) hours notice, to audit Licensee's compliance with this Agreement by inspecting the records referred to above in this Section. (c) If any inspection reveals an error in the calculation of amounts owing to Panorama, Licensee shall promptly pay the difference. If any error is five percent (5%) or more of the aggregate amounts payable to Panorama, Licensee shall pay Panorama' reasonable out-of-pocket costs with respect to that inspection. Such inspection and audit requests shall not be made more than two (2) times each fiscal year, unless an error was detected in a previous inspection in which case inspection and audit requests by Panorama may be made each calendar quarter. 2.5 Injunctive Relief. Each party further agrees that such wrongful disclosure could cause irreparable injury that cannot be compensated by monetary damages and that injunctive or other equitable relief may be appropriate. 3. MAINTENANCE & SUPPORT Only Panorama is authorized to perform maintenance and support of the Software, and such service will be performed solely in accordance with the current Panorama's Maintenance and Support Policy posted in the Support section at www.panorama.com. Panorama shall have no obligation to provide support or maintenance or updates or modifications or new releases, except when Licensee is under then-current paid-for annual maintenance and support plan with Panorama. No maintenance or support obligation of Panorama shall survive termination of this Agreement. Panorama will not be obligated to perform maintenance or support activities with regard to errors or other problems with the Software resulting from (i) alterations or modifications made by anyone other than Panorama (ii) third party software and/or hardware; (iii) Licensee's failure to promptly install any maintenance releases provided to Licensee while under valid maintenance coverage; or (iv) a combination of the Software with any program, equipment or device not supplied or specifically pre-approved in writing by Panorama's authorized signatory. 4. WARRANTIES AND LIMITATIONS OF LIABILITY 4.1 Limited Warranty. Panorama warrants that the medium on which the Software is delivered will be free from defects in workmanship and materials under normal use for a period of ninety (90) days after delivery of the Software, and that the medium will be repaired or replaced, at Panorama's option, upon return of said defective medium to Panorama within said ninety (90) day period. 4.2 No Warranty. THE SOFTWARE IS PROVIDED 'AS IS.' PANORAMA AND ITS SUPPLIERS DO NOT WARRANT THE PERFORMANCE OR RESULTS THAT LICENSEE MAY OBTAIN BY USING THE SOFTWARE. STATEMENTS BY PANORAMA AND ITS EMPLOYEES OR REPRESENTATIVES AND THE PRINTED MATERIALS AND ELECTRONIC DOCUMENTATION AND ANY SPECIFICATIONS OF THE SOFTWARE DO NOT CONSTITUTE A WARRANTY OR REPRESENTATION REGARDING THE USE, OR THE RESULTS OF USE, OF THE SOFTWARE OR DOCUMENTATION IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY LICENSEE. PANORAMA DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS, THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL SOFTWARE ERRORS WILL BE CORRECTED. 4.3 Disclaimer. PANORAMA EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR NON-INFRINGEMENT. THE WARRANTIES SET OUT IN SECTION 4.1 and 4.2 ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PANORAMA, ITS EMPLOYEES, DISTRIBUTORS, DEALERS OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES. PANORAMA IS NOT RESPONSIBLE FOR PROBLEMS CAUSED BY CHANGES IN THE OPERATING CHARACTERISTICS OF COMPUTER HARDWARE OR COMPUTER OPERATING SYSTEMS WHICH ARE MADE AFTER THE RELEASE OF THE SOFTWARE, NOR FOR PROBLEMS IN THE INTERACTION OF THE SOFTWARE WITH NON-PANORAMA PRODUCTS. 4.4 Limitation of Liability. LICENSEE AGREES THAT ITS EXCLUSIVE REMEDIES, AND PANORAMA'S ENTIRE LIABILITY WITH RESPECT TO THE SOFTWARE OR TO SERVICES PERFORMED BY PANORAMA THAT RELATE TO THE SOFTWARE, SHALL BE AS SET FORTH HEREIN. LICENSEE FURTHER AGREES THAT PANORAMA WILL NOT BE LIABLE TO LICENSEE FOR ANY DAMAGES, WHETHER SPECIAL, INDIRECT OR CONSEQUENTIAL, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF BUSINESS OR BUSINESS BENEFIT, LOSS OF DATA, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, OR THE PERFORMANCE OF ANY SERVICES RELATING TO THE SOFTWARE, EVEN IF PANORAMA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY ALTERNATIVE LIABILITY OBLIGATIONS IN ANY AGREEMENT, STATEMENT OF WORK, ORDER OR OTHER DOCUMENT, IN NO EVENT SHALL PANORAMA'S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT PAID BY LICENSEE FOR THE SOFTWARE OR THE PANORAMA SERVICES RELATED TO THE SOFTWARE. PARTICIPATING IN TRIAL AND BETA PROGRAMS IS VOLUNTARY AND LICENSEE IS SOLELY RESPONSIBLE FOR ANY DAMAGES AND ANY USE OF SUCH SOFTWARE LICENSES SHALL BE AT THE LICENSEE'S SOLE RISK AND EXPENSE. PANORAMA EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY TRIAL OR BETA LICENSE. 5. FEES AND PAYMENT TERMS Licensee shall send to Panorama numerical orders for all non-trial licenses, payment for which shall be due upon receipt of Panorama's invoice. Amounts unpaid after the due date shall bear interest from the invoice date of the lesser of: (a) one and one-half percent (1 1/2%) per month, or (b) the highest rate permitted by law. Time is of the essence for all payments due under this Agreement. Each license shall be deemed terminated if not fully paid-for within thirty days. All payments are irrevocable and nonrefundable, notwithstanding any alternate terms and conditions, including payment terms as may be set forth in any agreement or Purchase Order. Any future orders by Licensee to Panorama for additional Software or related services will be covered by this Agreement unless they are covered by an additional agreement signed by authorized signatories of both Licensee and Panorama. 6. TERMINATION Panorama may terminate this Agreement if the Licensee commits a material breach of this Agreement and such breach is not cured within thirty (30) days of receipt of a written notice of such breach. Upon termination of this Agreement, Licensee will immediately stop using the license, destroy or return to Panorama all Software and Proprietary Information in its possession. Any Trial or Beta test license provided under this Agreement shall expire and be deemed terminated on the specified end date of such trial period or after 120 days from installation, whichever comes first. 7. GENERAL TERMS AND CONDITIONS 7.1 Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be invalid, then the remaining provisions shall nevertheless remain in full force and effect. 7.2 Governing Law; Jurisdiction; Attorneys fee. This Agreement is governed by the laws of the State of Delaware, USA excepting its choice of law provisions. The parties hereby agree to irrevocably attorn to the non-exclusive jurisdiction of the courts of the Province of State of Delaware. The venue shall be Delaware. If any legal action is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and costs in addition to any other relief to which that party may be entitled. 7.3 Entire Agreement. Each party acknowledges and agrees that this Agreement is the entire and exclusive statement of the mutual understanding of the parties and that it supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Each party agrees that this Agreement can be modified only by an agreement in writing signed by the persons authorized to execute agreements on behalf of the parties. Any contradictory terms, modifications or additions in orders and other documents/agreements relating to the acquisition of this license, will be binding upon Panorama only if they have been accepted in writing, evidenced by the signature of a Panorama authorized executive signatory. In absence of such written acceptance, execution of such orders, documents/agreements shall take place solely on the basis of this Agreement. No modification can be accomplished by course of conduct. 7.4 No Waiver. Each party agrees that any failure or delay to exercise, or any partial exercise of any right, power, or privilege hereunder by the other party, shall not operate as a waiver. 7.5 Export/Import Laws. Licensee shall comply with all the then current and applicable export/import laws and regulations which pertain to the Software. 7.6 Assignment. This Agreement may be assigned by Panorama to any entity, which assumes its obligations and acquires ownership of, or the right to use and license Panorama's products. 7.7 Marks. All Marks shall remain sole property of their original owners. Either party shall not remove and only list Marks in reference of the license use with the ownership of the Mark by the original owner being clearly indicated. 8. Notices All notices shall be in writing and shall be sent by courier, certified mail or facsimile. All confirmations of delivery of such notices sent to Panorama shall also be sent by e-mail to agreements@panorama.com , including the original text of the notice. 9. Force Majeure If the performance of this Agreement, or any obligation hereunder except the making of any payment is prevented, restricted, or interfered with by reason of: fire, flood, earthquake, explosion or other casualty or accident or act of God; strikes or labour disputes involving third parties; inability to procure or obtain delivery of parts, supplies, power, equipment or software from suppliers for reasons other than failure to pay such suppliers; war or other violence; any law, order, regulation, ordinance, demand or requirement of any governmental authority; or any other act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected shall take all reasonable steps to avoid or remove such cause of non-performance and shall resume performance hereunder with dispatch whenever such causes are removed. By installing, copying, downloading or using the Software, Licensee agrees to be bound by the terms and conditions of this Panorama Limited Use License.