--------------------------------------------------------------------- SMARTCELL TECHNOLOGY SOFTWARE LICENSE AGREEMENT --------------------------------------------------------------------- By installing this software you accept all the terms and conditions of the following agreement. This SmartCell Technology Software License Agreement accompanies the TextPlus(TM) (version 3.6) software product and related explanatory materials ("Software"). The term "Software" also shall include any upgrades, modified versions or updates of the Software licensed to you by SmartCell Technology. 1. USE OF THE SOFTWARE - You may use the Software in connection with a single computer system and for the number of users and purpose specified by SmartCell Technology. You may distribute the Software in the format as received from SmartCell Technology provided that no modifications are made to the Software. - You may not distribute the License Information in any form, any copy, or any part of it to anyone else; you may not permit the use of the Software or License Information by more than the specified number of users; you may not sell, loan, rent, assign, lease or sub-license the Software or License Information or any copy or any part of it to anyone else; you may not modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software; you may not remove any copyright notice, trade mark, legend, logo or product identification of the Software or License Information. 2. COPYRIGHT AND TRADEMARK RIGHTS The Software is owned by SmartCell Technology and its suppliers, and its structure, organization and code are the valuable trade secrets of SmartCell Technology and its suppliers. The Software also is protected by United States Copyright Law and International Treaty provisions. You may use trademarks only insofar as required to comply with Section 1 of this Agreement, in accordance with accepted trademark practice, including identification of trademark owner's name. Such use of any trademark does not give you any rights of ownership in that trademark. Except as stated above, this Agreement does not grant you any intellectual property rights in the Software. 3. LIABILITY SMARTCELL TECHNOLOGY AND ITS SOFTWARE SUPPLIERS, DISTRIBUTORS AND DEALERS MAKE NO REPRESENTATIONS OR WARRANTIES WHETHER EXPRESS OR IMPLIED (BY STATUTE OR OTHERWISE) RELATING TO THE PERFORMANCE, QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE SOFTWARE OR OTHERWISE AND ALL SUCH REPRESENTATIONS AND WARRANTIES ARE HEREBY SPECIFICALLY DISCLAIMED AND EXCLUDED. YOU ALONE ARE ABLE TO DETERMINE WHETHER THE SOFTWARE WILL MEET YOUR REQUIREMENTS AND THE ENTIRE RISK AS TO ITS PERFORMANCE IS WITH YOU AND, SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU ALONE MUST ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION AND ANY INCIDENTAL OR CONSEQUENTIAL EXPENSES. IN NO EVENT WILL SMARTCELL TECHNOLOGY, ITS SOFTWARE SUPPLIERS OR DISTRIBUTORS BE LIABLE FOR (1) DIRECT, (2) INDIRECT, (3) SPECIAL, (4) INCIDENTAL OR (5) CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS OR BUSINESS) RESULTING FROM ANY DEFECT AND OR/USE OF THE SOFTWARE, EVEN IF SMARTCELL TECHNOLOGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, WHETHER DUE TO SMARTCELL TECHNOLOGY'S NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION OR OTHERWISE. NOTWITHSTANDING THE ABOVE, IF THERE SHOULD ARISE ANY LIABILITY ON THE PART OF SMARTCELL TECHNOLOGY BY REASON OF THE LICENSING OR USE OF THE SOFTWARE OR OTHERWISE, WHETHER DUE TO SMARTCELL TECHNOLOGY'S NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION OR OTHERWISE SUCH LIABILITY SHALL UNDER NO CIRCUMSTANCES EXCEED THE PRICE PAID BY YOU FOR THE LICENSE TO USE THE SOFTWARE OR AT THE ELECTION OF SMARTCELL TECHNOLOGY THE COST OF REPAIR OR REPLACEMENT OF THE DEFECTIVE SOFTWARE BY SMARTCELL TECHNOLOGY. YOU SHALL INDEMNIFY SMARTCELL TECHNOLOGY AGAINST ALL CLAIMS BY THIRD PARTIES (OTHER THAN CLAIMS ALLEGING BREACH BY THE SOFTWARE, AS SUPPLIED, OF A THIRD PARTY'S COPYRIGHT, PATENT OR OTHER INTELLECTUAL PROPERTY RIGHTS) ARISING FROM THE POSSESSION OR USE OF THE SOFTWARE BY YOU OR ANYONE USING IT WITH YOUR CONSENT. Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, or the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to you. 4. GOVERNING LAW AND GENERAL PROVISIONS This Agreement will be governed by the laws of the State of California, U.S.A., excluding the application of its conflicts of law rules. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations. This Agreement shall automatically terminate upon failure by you to comply with its terms. This Agreement may only be modified in writing signed by an authorized officer of SmartCell Technology. 5. NOTICE TO GOVERNMENT END USERS The Software and Documentation are "Commercial Items," as that term is defined at 48 C.F.R. .101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. 2.212 or 48 C.F.R. 27.7202, as applicable. Consistent with 48 C.F.R. 2.212 or 48 C.F.R. 27.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (A) only as Commercial Items and (B) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. --------------------------------------------------------------------- Copyright (c) 1999-2000, SmartCell Technology All rights reserved. ---------------------------------------------------------------------