Internet Security Systems, Inc. Software License Agreement THIS SOFTWARE PRODUCT IS PROVIDED IN OBJECT CODE AND IS LICENSED, NOT SOLD. BY INSTALLING, ACTIVATING, COPYING OR OTHERWISE USING THIS SOFTWARE PRODUCT, YOU AGREE TO ALL OF THE PROVISIONS OF THIS SOFTWARE LICENSE AGREEMENT ("LICENSE"). IF YOU ARE NOT WILLING TO BE BOUND BY THIS LICENSE, RETURN ALL COPIES OF THE SOFTWARE PRODUCT AND LICENSE KEYS TO ISS WITHIN FIFTEEN (15) DAYS OF RECEIPT FOR A FULL REFUND OF ANY PAID LICENSE FEE. IF THE SOFTWARE PRODUCT WAS OBTAINED BY DOWNLOAD, YOU MAY CERTIFY DESTRUCTION OF ALL COPIES AND LICENSE KEYS IN LIEU OF RETURN. 1. License - Upon payment of the applicable fees, Internet Security Systems, Inc. ("ISS") grants to you as the only end user ("Licensee") a nonexclusive and nontransferable, limited license for the accompanying ISS software product and the related documentation ("Software") and the associated license key(s) for use only on the specific network configuration, for the number and type of devices, and for the time period ("Term") that are specified in ISSÆ quotation and LicenseeÆs purchase order, as accepted by ISS. ISS limits use of Software based upon the number of nodes, users and/or the number and type of devices upon which it may be installed, used, gather data from, or report on, depending upon the specific Software licensed. A device includes any network addressable device connected to LicenseeÆs network, including remotely, including but not limited to personal computers, workstations, servers, routers, hubs and printers. A device may also include ISS hardware delivered with pre-installed Software and the license associated with such shall be a non-exclusive, nontransferable, limited license to use such pre-installed Software only in conjunction with the ISS hardware with which it is originally supplied and only during the usable life of such hardware. Except as provided in the immediately preceding sentence, Licensee may reproduce, install and use the Software on multiple devices, provided that the total number and type are authorized by ISS. Licensee acknowledges that the license key provided by ISS may allow Licensee to reproduce, install and use the Software on devices that could exceed the number of devices licensed hereunder. Licensee shall implement appropriate safeguards and controls to prevent loss or disclosure of the license key and unauthorized or unlicensed use of the Software. Licensee may make a reasonable number of backup copies of the Software and the associated license key solely for archival and disaster recovery purposes. In connection with certain Software products, ISS licenses security content on a subscription basis for a Term and provides Licensee with a license key for each such subscription. Content subscriptions are licensed pursuant to this License based upon the number of protected nodes or number of users. Security content is regularly updated and includes, but is not limited to, Internet content (URLs) and spam signatures that ISS classifies, security algorithms, checks, decodes, and ISSÆ related analysis of such information, all of which ISS regards as its confidential information and intellectual property. Security content may only be used in conjunction with the applicable Software in accordance with this License. The use or re-use of such content for commercial purposes is prohibited. LicenseeÆs access to the security content is through an Internet update using the Software. In addition, unknown URLs may be automatically forwarded to ISS through the Software, analyzed, classified, entered in to ISSÆ URL database and provided to Licensee as security content updates at regular intervals. ISSÆ URL database is located at an ISS facility or as a mirrored version on LicenseeÆs premises. Any access by Licensee to the URL database that is not in conformance with this License is prohibited. Upon expiration of the security content subscription Term, unless Licensee renews such content subscription, Licensee shall implement appropriate system configuration modifications to terminate its use of the content subscription. Upon expiration of the license Term, Licensee shall cease using the Software and certify return or destruction of it upon request. 2. Migration Utilities û For Software ISS markets or sells as a Migration Utility, the following shall apply. Provided Licensee holds a valid license to the ISS Software to which the Migration Utility relates (the ôOriginal Softwareö), ISS grants to Licensee as the only end user a nonexclusive and nontransferable, limited license to the Migration Utility and the related documentation ("Migration Utility") for use only in connection with LicenseeÆs migration of the Original Software to the replacement software, as recommended by ISS in the related documentation. The Term of this License is for as long as Licensee holds a valid license to the applicable Original Software. Licensee may reproduce, install and use the Migration Utility on multiple devices in connection with its migration from the Original Software to the replacement software. Licensee shall implement appropriate safeguards and controls to prevent unlicensed use of the Migration Utility. Licensee may make a reasonable number of backup copies of the Migration Utility solely for archival and disaster recovery purposes. 3. Third-party Products - Use of third party product(s) supplied hereunder, if any, will be subject solely to the manufacturerÆs terms and conditions that will be provided to Licensee upon delivery. ISS will pass any third party product warranties through to Licensee to the extent authorized. If ISS supplies Licensee with Crystal Decisions Runtime Software, then the following additional terms apply: Licensee agrees not to alter, disassemble, decompile, translate, adapt or reverse-engineer the Runtime Software or the report file (.RPT) format, or to use, distribute or integrate the Runtime Software with any general-purpose report writing, data analysis or report delivery product or any other product that performs the same of similar functions as Crystal DecisionsÆ product offerings; Licensee agrees not to use the Software to create for distribution a product that converts the report file (.RPT) format to an alternative report file format used by any general-purpose report writing, data analysis or report delivery product that is not the property of Crystal Decisions; Licensee agrees not to use the Runtime Software on a rental or timesharing basis or to operate a service bureau facility for the benefit of thirdûparties unless Licensee first acquires an Application Service Provider License from Crystal Decisions; Licensee may not use the Software or Runtime Software by itself or as part of a system to regularly deliver, distribute or share Reports outside of the Runtime Software environment: (a) to more than fifty (50) end users directly, or (b) to a location that is accessible to more than 50 end users without obtaining an additional license from Crystal Decisions; CRYSTAL DECISIONS AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESS, OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FIRNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. CRYSTAL DECISIONS AND ITS SUPPLIERS SHALL HAVE NO LIABILITY WHATSOEVER UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SOFTWARE. In this section 3 ôSoftwareö means the Crystal Reports software and associated documentation supplied by ISS and any updates, additional modules, or additional software provided by Crystal Decisions in connection therewith; it includes Crystal DecisionsÆ Design Tools, Report Application Server and Runtime Software, but does not include any promotional software of other software products provided in the same package, which shall be governed by the online software license agreements included with such promotional software or software product. 4. Beta License û If ISS is providing Licensee with the Software, security content and related documentation as a part of an alpha or beta test, the following terms of this Section 4 additionally apply and supercede any conflicting provisions herein or any other license agreement accompanying, contained or embedded in the subject Beta Software or any associated documentation. ISS grants to Licensee a nonexclusive, nontransferable, limited license to use the ISS alpha/prototype software program, security content, if any, and any related documentation furnished by ISS (ôBeta Softwareö) for LicenseeÆs evaluation and comment (the "Beta License") during the Test Period. ISSÆ standard test cycle, which may be extended at ISSÆ discretion, extends for sixty (60) days, commencing on the date of delivery of the Beta Software (the "Test Period"). Upon expiration of the Test Period or termination of the License, Licensee shall, within thirty (30) days, return to ISS or destroy all copies of the Beta Software, and shall furnish ISS written confirmation of such return or destruction upon request. Licensee will provide ISS information reasonably requested by ISS regarding Licensee's experiences with the installation and operation of the Beta Software. Licensee agrees that ISS shall have the right to use, in any manner and for any purpose, any information gained as a result of LicenseeÆs use and evaluation of the Beta Software. Such information shall include but not be limited to changes, modifications and corrections to the Beta Software. Licensee grants to ISS a perpetual, royalty-free, non-exclusive, transferable, sublicensable right and license to use, copy, make derivative works of and distribute any report, test result, suggestion or other item resulting from Licensee's evaluation of its installation and operation of the Beta Software. If Licensee is ever held or deemed to be the owner of any copyright rights in the Beta Software or any changes, modifications or corrections to the Beta Software, then Licensee hereby irrevocably assigns to ISS all such rights, title and interest and agrees to execute all documents necessary to implement and confirm the letter and intent of this Section. Licensee acknowledges and agrees that the Beta Software (including its existence, nature and specific 1
features) constitute Confidential Information as defined in Section 18. Licensee further agrees to treat as Confidential Information all feedback, reports, test results, suggestions, and other items resulting from Licensee's evaluation and testing of the Beta Software as contemplated in this Agreement. With regard to the Beta Software, ISS has no obligation to provide support, maintenance, upgrades, modifications, or new releases. However, ISS agrees to use its reasonable efforts to correct errors in the Beta Software and related documentation within a reasonable time, and will provide Licensee with any corrections it makes available to other evaluation participants. The documentation relating to the Beta Software may be in draft form and will, in many cases, be incomplete. Owing to the experimental nature of the Beta Software, Licensee is advised not to rely exclusively on the Beta Software for any reason. LICENSEE AGREES THAT THE BETA SOFTWARE AND RELATED DOCUMENTATION ARE BEING DELIVERED "AS IS" FOR TEST AND EVALUATION PURPOSES ONLY WITHOUT WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSEE ACKNOWLEDGES AND AGREES THAT THE BETA SOFTWARE MAY CONTAIN DEFECTS, PRODUCE ERRONEOUS AND UNINTENDED RESULTS AND MAY AFFECT DATA NETWORK SERVICES AND OTHER MATERIALS OF LICENSEE. LICENSEEÆS USE OF THE BETA SOFTWARE IS AT THE SOLE RISK OF LICENSEE. IN NO EVENT WILL ISS BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR DAMAGES, DIRECT OR INDIRECT, OF ANY NATURE, OR EXPENSES INCURRED BY LICENSEE. LICENSEE'S SOLE AND EXCLUSIVE REMEDY SHALL BE TO TERMINATE THE BETA SOFTWARE LICENSE BY WRITTEN NOTICE TO ISS. 5. Evaluation License - If ISS is providing Licensee with the Software, security content and related documentation on an evaluation trial basis at no cost, such license Term is 30 days from installation, unless a longer period is agreed to in writing by ISS. ISS recommends using Software and security content for evaluation in a non-production, test environment. The following terms of this Section 5 additionally apply and supercede any conflicting provisions herein. Licensee agrees to remove or disable the Software and security content from the authorized platform and return the Software, security content and documentation to ISS upon expiration of the evaluation Term unless otherwise agreed by the parties in writing. ISS has no obligation to provide support, maintenance, upgrades, modifications, or new releases to the Software or security content under evaluation. LICENSEE AGREES THAT THE EVALUATION SOFTWARE, SECURITY CONTENT AND RELATED DOCUMENTATION ARE BEING DELIVERED ôAS ISö FOR TEST AND EVALUATION PURPOSES ONLY WITHOUT WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL ISS BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR DAMAGES, DIRECT OR INDIRECT, OF ANY NATURE, OR EXPENSES INCURRED BY LICENSEE. LICENSEEÆS SOLE AND EXCLUSIVE REMEDY SHALL BE TO TERMINATE THE EVALUATION LICENSE BY WRITTEN NOTICE TO ISS. 6. Covenants - ISS reserves all intellectual property rights in the Software, security content and Beta Software. Licensee agrees: (i) the Software, security content or Beta Software is owned by ISS and/or its licensors, is a valuable trade secret of ISS, and is protected by copyright laws and international treaty provisions; (ii) to take all reasonable precautions to protect the Software, security content or Beta Software from unauthorized access, disclosure, copying or use; (iii) not to modify, adapt, translate, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Software, security content or Beta Software; (iv) not to use ISS trademarks; (v) to reproduce all of ISSÆ and its licensorsÆ copyright notices on any copies of the Software, security content or Beta Software; and (vi) not to transfer, lease, assign, sublicense, or distribute the Software, security content or Beta Software or make it available for time-sharing, service bureau, managed services offering, or on-line use. 7. Support and Maintenance û Depending upon what maintenance programs Licensee has purchased, ISS will provide maintenance, during the period for which Licensee has paid the applicable maintenance fees, in accordance with its prevailing Maintenance and Support Policy that is available at http://documents.iss.net/maintenance_policy.pdf. Any supplemental Software code or related materials that ISS provides to Licensee as part of any support and maintenance service are to be considered part of the Software and are subject to the terms and conditions of this License, unless otherwise specified. 8. Limited Warranty - The commencement date of this limited warranty is the date on which ISS furnishes to Licensee the license key for the Software. For a period of ninety (90) days after the commencement date or for the Term (whichever is less), ISS warrants that the Software or security content will conform to material operational specifications described in its then current documentation. However, this limited warranty shall not apply unless (i) the Software or security content is installed, implemented, and operated in accordance with all written instructions and documentation supplied by ISS, (ii) Licensee notifies ISS in writing of any nonconformity within the warranty period, and (iii) Licensee has promptly and properly installed all corrections, new versions, and updates made available by ISS to Licensee. Furthermore, this limited warranty shall not apply to nonconformities arising from any of the following: (i) misuse of the Software or security content, (ii) modification of the Software or security content, (iii) failure by Licensee to utilize compatible computer and networking hardware and software, or (iv) interaction with software or firmware not provided by ISS. If Licensee timely notifies ISS in writing of any such nonconformity, then ISS shall repair or replace the Software or security content or, if ISS determines that repair or replacement is impractical, ISS may terminate the applicable licenses and refund the applicable license fees, as the sole and exclusive remedies of Licensee for such nonconformity. THIS WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS, AND LICENSEE MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. ISS DOES NOT WARRANT THAT THE SOFTWARE OR THE SECURITY CONTENT WILL MEET LICENSEE'S REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE OR SECURITY CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL SOFTWARE OR SECURITY CONTENT ERRORS WILL BE CORRECTED. LICENSEE UNDERSTANDS AND AGREES THAT THE SOFTWARE AND THE SECURITY CONTENT ARE NO GUARANTEE AGAINST UNSOLICITED E-MAILS, UNDESIRABLE INTERNET CONTENT, INTRUSIONS, VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, CANCELBOTS OR OTHER SIMILAR HARMFUL OR DELETERIOUS PROGRAMMING ROUTINES AFFECTING LICENSEE'S NETWORK, OR THAT ALL SECURITY THREATS AND VULNERABILITIES, UNSOLICITED E-MAILS OR UNDESIRABLE INTERNET CONTENT WILL BE DETECTED OR THAT THE PERFORMANCE OF THE SOFTWARE AND SECURITY CONTENT WILL RENDER LICENSEEÆS SYSTEMS INVULNERABLE TO SECURITY BREACHES. THE REMEDIES SET OUT IN THIS SECTION 8 ARE THE SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF THIS LIMITED WARRANTY. 9. Warranty Disclaimer - EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, THE SOFTWARE AND SECURITY CONTENT ARE EACH PROVIDED ôAS ISö AND ISS HEREBY DISCLAIMS ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING IMPLIED WARRANTIES RESPECTING MERCHANTABILITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. LICENSEE EXPRESSLY ACKNOWLEDGES THAT NO REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS LICENSE HAVE BEEN MADE REGARDING THE GOODS OR SERVICES TO BE PROVIDED HEREUNDER, AND THAT LICENSEE HAS NOT RELIED ON ANY REPRESENTATION NOT EXPRESSLY SET OUT IN THIS LICENSE. 10. Proprietary Rights - ISS represents and warrants that ISS has the authority to license the rights to the Software and security content that are granted herein. ISS shall defend and indemnify Licensee from any final award of costs and damages against Licensee for any actions based on infringement of any U.S. copyright, trade secret, or patent as a result of the use or distribution of a current, unmodified version of the Software and security content, but only if ISS is promptly notified in writing of any such suit or claim, and only if Licensee permits ISS to defend, compromise, or settle same, and only if Licensee provides all available information and reasonable assistance. The foregoing is the exclusive remedy of Licensee and states the entire liability of ISS with respect to claims of infringement or misappropriation relating to the Software and security content. 11. Limitation of Liability - ISS' ENTIRE LIABILITY FOR MONETARY DAMAGES ARISING OUT OF THIS LICENSE SHALL BE LIMITED TO THE AMOUNT OF THE LICENSE FEES ACTUALLY PAID BY LICENSEE UNDER THIS LICENSE, PRORATED OVER A THREE-YEAR TERM FROM THE DATE LICENSEE RECEIVED THE SOFTWARE. OR SECURITY CONTENT, AS APPLICABLE, IN NO EVENT SHALL ISS BE LIABLE TO LICENSEE UNDER ANY THEORY INCLUDING CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCTS LIABILITY) FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DAMAGES FOR LOST PROFITS, LOSS OF DATA, LOSS OF USE, OR COMPUTER HARDWARE MALFUNCTION, EVEN IF ISS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 12. Termination - Licensee may terminate this License at any time by notifying ISS in writing. All rights granted under this License will terminate immediately, without prior written notice from ISS, at the end of the term of the License, if not perpetual. If Licensee fails to comply with any provisions of this License, ISS may immediately terminate this License if such default has not been cured within ten (10) days following written notice of default to Licensee. Upon termination or expiration of a license for Software, Licensee shall cease all use of such Software, including Software pre-installed on ISS
2
hardware, and destroy all copies of the Software and associated documentation. Termination of this License shall not relieve Licensee of its obligation to pay all fees incurred prior to such termination and shall not limit either party from pursuing any other remedies available to it. 13. General Provisions - This License, together with the identification of the Software and/or security content, pricing and payment terms stated in the applicable ISS quotation and Licensee purchase order (if applicable) as accepted by ISS, constitute the entire agreement between the parties respecting its subject matter. Standard and other additional terms or conditions contained in any purchase order or similar document are hereby expressly rejected and shall have no force or effect. ISS Software and security content are generally delivered to Customer by supplying Customer with license key data. If Customer has not already downloaded the Software, security content and documentation, then it is available for download at http://www.iss.net/download/. All ISS hardware with pre-installed Software and any other products not delivered by download are delivered f.o.b. origin. This License will be governed by the substantive laws of the State of Georgia, USA, excluding the application of its conflicts of law rules. This License 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 License is found void or unenforceable, it will not affect the validity of the balance of the License, which shall remain valid and enforceable according to its terms. This License may only be modified in writing signed by an authorized officer of ISS. 14. Notice to United States Government End Users - Licensee acknowledges that any Software and security content furnished under this License is commercial computer software and any documentation is commercial technical data developed at private expense and is provided with RESTRICTED RIGHTS. Any use, modification, reproduction, display, release, duplication or disclosure of this commercial computer software by the United States Government or its agencies is subject to the terms, conditions and restrictions of this License in accordance with the United States Federal Acquisition Regulations at 48 C.F.R. Section 12.212 and DFAR Subsection 227.7202-3 and Clause 252.227-7015 or applicable subsequent regulations. Contractor/manufacturer is Internet Security Systems, Inc., 6303 Barfield Road, Atlanta, GA 30328, USA. 15. Export and Import Controls; Use Restrictions - Licensee will not transfer, export, or reexport the Software, security content, any related technology, or any direct product of either except in full compliance with the export controls administered by the United States and other countries and any applicable import and use restrictions. Licensee agrees that it will not export or reexport such items to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Persons List or Entity List or such additional lists as may be issued by the U.S. Government from time to time, or to any country to which the United States has embargoed the export of goods (currently Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria) or for use with chemical or biological weapons, sensitive nuclear end-uses, or missiles. Licensee represents and warrants that it is not located in, under control of, or a national or resident of any such country or on any such list. Many ISS software products include encryption and export outside of the United States or Canada is strictly controlled by U.S. laws and regulations. ISS makes its current export classification information available at http://www.iss.net/export. Please contact ISS' Sourcing and Fulfillment for export questions relating to the Software or security content (fulfillment@iss.net). Licensee understands that the foregoing obligations are U.S. legal requirements and agrees that they shall survive any term or termination of this License. 16. Authority - Because the Software is designed to test or monitor the security of computer network systems and may disclose or create problems in the operation of the systems tested, Licensee and the persons acting for Licensee represent and warrant that: (a) they are fully authorized by the Licensee and the owners of the computer network for which the Software is licensed to enter into this License and to obtain and operate the Software in order to test and monitor that computer network; (b) the Licensee and the owners of that computer network understand and accept the risks involved; and (c) the Licensee shall procure and use the Software in accordance with all applicable laws, regulations and rules. 17. Disclaimers - Licensee acknowledges that some of the Software and security content is designed to test the security of computer networks and may disclose or create problems in the operation of the systems tested. Licensee further acknowledges that neither the Software nor security content is fault tolerant or designed or intended for use in hazardous environments requiring fail-safe operation, including, but not limited to, aircraft navigation, air traffic control systems, weapon systems, life-support systems, nuclear facilities, or any other applications in which the failure of the Software and security content could lead to death or personal injury, or severe physical or property damage. ISS disclaims any implied warranty of fitness for High Risk Use. Licensee accepts the risk associated with the foregoing disclaimers and hereby waives all rights, remedies, and causes of action against ISS and releases ISS from all liabilities arising therefrom. 18. Confidentiality - "Confidential Information" means all information proprietary to a party or its suppliers that is marked as confidential. Each party acknowledges that during the term of this Agreement, it will be exposed to Confidential Information of the other party. The obligations of the party ("Receiving Party") which receives Confidential Information of the other party ("Disclosing Party") with respect to any particular portion of the Disclosing Party's Confidential Information shall not attach or shall terminate when any of the following occurs: (i) it was in the public domain or generally available to the public at the time of disclosure to the Receiving Party, (ii) it entered the public domain or became generally available to the public through no fault of the Receiving Party subsequent to the time of disclosure to the Receiving Party, (iii) it was or is furnished to the Receiving Party by a third parting having the right to furnish it with no obligation of confidentiality to the Disclosing Party, or (iv) it was independently developed by the Receiving Party by individuals not having access to the Confidential Information of the Disclosing Party. Each party acknowledges that the use or disclosure of Confidential Information of the Disclosing Party in violation of this License could severely and irreparably damage the economic interests of the Disclosing Party. The Receiving Party agrees not to disclose or use any Confidential Information of the Disclosing Party in violation of this License and to use Confidential Information of the Disclosing Party solely for the purposes of this License. Upon demand by the Disclosing Party and, in any event, upon expiration or termination of this License, the Receiving Party shall return to the Disclosing Party all copies of the Disclosing Party's Confidential Information in the Receiving Party's possession or control and destroy all derivatives and other vestiges of the Disclosing Party's Confidential Information obtained or created by the Disclosing Party. All Confidential Information of the Disclosing Party shall remain the exclusive property of the Disclosing Party. 19. Compliance - From time to time, ISS may request Licensee to provide a certification that the Software and security content is being used in accordance with the terms of this License. If so requested, Licensee shall verify its compliance and deliver its certification within forty-five (45) days of the request. The certification shall state LicenseeÆs compliance or non-compliance, including the extent of any non-compliance. ISS may also, at any time, upon thirty (30) days prior written notice, at its own expense appoint a nationally recognized software use auditor, to whom Licensee has no reasonable objection, to audit and examine use and records at Licensee offices during normal business hours, solely for the purpose of confirming that LicenseeÆs use of the Software and security content is in compliance with the terms of this License. ISS will use commercially reasonable efforts to have such audit conducted in a manner such that it will not unreasonably interfere with the normal business operations of Licensee. If such audit should reveal that use of the Software or security content has been expanded beyond the scope of use and/or the number of Authorized Devices or Licensee certifies such non-compliance, ISS shall have the right to charge Licensee the applicable current list prices required to bring Licensee in compliance with its obligations hereunder with respect to its current use of the Software and security content. In addition to the foregoing, ISS may pursue any other rights and remedies it may have at law, in equity or under this License. 20. Data Protection - The data needed to process this transaction will be stored by ISS and may be forwarded to companies affiliated with ISS and possibly to LicenseeÆs vendor within the framework of processing LicenseeÆs order. All personal data will be treated confidentially. Revised March 16, 2004.
Redistribution agreement.
Amendment No. 1
to the OEM Business Partner Agreement
by and between
Cobion AG and Panda Software S.L.U
The parties, intending to be legally bound, hereby amend the OEM Business Partner Agreement by and between Cobion AG. (ôCobionö) and Panda Software S.L.U. (ôCompanyö) dated October 15, 2003 (ôAgreementö) as follows:
1. The parties agree that Company is currently licensed to use the Cobion Filter Service in connection with certain of CompanyÆs products. Cobion agrees to expand this list of authorized Company products in exchange of an additional annual payment of Ç100,000. Therefore, Exhibit III, Partner-Product and Integration of the Software, is deleted in its entirety and the following new Exhibit III, attached hereto as Schedule 1, is inserted in its place.
2. Exhibit V, License Fee and Terms of Payment, is amended by adding: In addition to the annual payment of Ç45,000 required under the Agreement, Panda agrees to pay Cobion Ç100,000 annually as compensation for the right to use the Cobion Filter Service in the authorized Panda software products identified on Exhibit IV as being added pursuant to this Amendment No. 1. Cobion will invoice Panda for this amount upon execution of this Amendment No. 1 and Panda will pay such invoice within thirty (30) days.
3. No other provision of this Agreement is affected by this Amendment No. 1.
IN WITNESS WHEREOF, Cobion and Company have caused this Amendment No. 1 to be duly executed as of the latter of the dates set forth below (the ôEffective Dateö).
