LIMITED AVAILABILITY LICENSE AGREEMENT IMPORTANT NOTICE: READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE PROCEEDING TO USE THE COMPUTER SOFTWARE AND THE RELATED USER DOCUMENTATION (THE "PRODUCT"). THE PRODUCT IS COPYRIGHTED AND ITS USE IS LICENSED (NOT SOLD). BY DOWNLOADING, INSTALLING, COPYING, OR OTHERWISE USING THE PRODUCT, YOU ACCEPT AND AGREE TO THE TERMS OF THIS LICENSE AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, YOU SHALL NOT USE THE PRODUCT. THIS LICENSE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE PRODUCT BETWEEN YOU (REFERRED TO HEREIN AS "CUSTOMER") AND CINCOM SYSTEMS, INC. (REFERRED TO HEREIN AS "CINCOM"), AND THIS AGREEMENT SUPERSEDES ANY PRIOR PROPOSALS, REPRESENTATIONS, OR UNDERSTANDING BETWEEN THE PARTIES RELATING TO THE PRODUCT. 1. Limited License 1.1 Cincom grants to Customer, subject to the terms and conditions contained in this Agreement, a nonexclusive and nontransferable license to use, for its own internal operations only, the proprietary computer software programs and related materials ("Products"). 1.2 The license is granted for testing purposes only to prove the Products reliability, performance, and functional conformity to the Products' specifications. If Customer wishes to use the Products after completion of the testing, a software license agreement must be executed by Customer. The Products licensed under this Agreement shall not be used for commercial or production purposes. 2. Products 2.1 Customer acknowledges that the Products are being licensed for testing purposes only, and that the Products are of an experimental nature. 2.2 Customer agrees to monitor the performance of the Products and to provide backup operations to protect itself from loss due to any error conditions. 3. Term 3.1 This Agreement is effective from the date that Customer accepts the terms and conditions of this Limited Availability License Agreement, and will remain in effect until terminated in accordance with the Section 4 of this Agreement. 4. Termination 4.1 This Agreement may be terminated by either party for any reason. 4.2 Failure by either party to substantially comply with any term or condition under this Agreement shall constitute default. The nondefaulting party shall be entitled to give written notice to the defaulting party requiring it to cure the default. The notice shall include a detailed description of the act or omission that constitutes the default. If the defaulting party has not cured the default within 30 days after receipt of notice, the nondefaulting party may terminate this Agreement by giving written notice to take effect upon receipt. Notwithstanding the foregoing, Cincom may terminate this Agreement immediately and without notice if Customer fails to fulfill its obligations under Section 1 or Section 8 of this Agreement. The right to terminate this Agreement is in addition to any other rights and remedies provided under this Agreement or otherwise under law. 4.3 No later than ten days after the effective date of any termination, Customer shall return or destroy all applicable Products, including all copies and versions. 5. Charges 5.1 Services may be purchased and utilized in accordance with Cincom's then current services fee schedule and appropriate services agreement. 5.2 Customer agrees that the costs of Customer resources consumed during the test period are the sole responsibility of the Customer. 5.3 Any out-of-pocket expenses incurred by Cincom on Customer's behalf will be limited to reasonable and customary travel, lodging, and meal expenses and will be due as incurred. 6. Warranties 6.1 Cincom warrants that it has the right to grant Customer a license to use the Products. 6.2 CINCOM IS LICENSING THE USE OF THE PRODUCTS TO CUSTOMER ON AN "AS IS" BASIS AND DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, CONCERNING THE PRODUCTS, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, BUT EXCEPTING THE WARRANTY OF TITLE SET FORTH IN PARAGRAPH 6.1. 7. Indemnities and Liabilities 7.1 If a claim is brought against Customer alleging that the Products infringe a patent, copyright, or trade secret, Cincom will defend, at its own expense, such claims and indemnify and hold Customer harmless from any damages or costs, including reasonable attorney fees, incurred or awarded as a result of the claim against Customer, provided Customer gives Cincom prompt written notice of the claim, allows Cincom to control the defense and settlement of the claim, and fully cooperates with Cincom in the defense and settlement. Cincom shall have no obligation with respect to any infringement claim based on Customer's modification of the Products or its combination, operation, or use with data or programs not furnished by Cincom. This Paragraph 7.1 states Cincom's entire obligation and liability with respect to infringement of any patent, copyright, or trade secret. 7.2 Cincom will not be liable for delays or failures in performance due to causes beyond its control, for damages caused by Customer's failure to perform Customer's responsibilities, or for any claim, other than infringement claims provided for in Paragraph 7.1, of a third party arising out of or related to Customer's use of the Products. 7.3 CINCOM AND ITS LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, WHETHER IN CONTRACT, TORT, OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, EVEN IF CINCOM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 7.4 Cincom's entire liability and Customer's exclusive remedy for any cause whatsoever, and regardless of the form of action, whether in contract, tort, or otherwise, are limited to the liabilities and the remedies set forth in this Agreement. 8. Proprietary Information 8.1 Customer acknowledges that Cincom claims that the Products constitute proprietary and confidential information of Cincom and its licensors, that the protection of this information is of the highest importance, and that Cincom may employ protection methods within the Products' code to prevent unauthorized use of the Products. Customer shall keep the Products in strict confidence, shall take appropriate steps to ensure that persons authorized to have access to the Products refrain from any unauthorized reproduction or disclosure of the Products, and shall restrict access to the Products to Customer personnel who need to access the Products to enable Customer to use the Products as contemplated by this Agreement and who have been advised of and have agreed to treat the Products in accordance with this Section 8. 8.2 Customer will not reverse engineer or decode the Products or defeat protection methods used for preventing unauthorized uses of the Products. 8.3 Customer shall not transfer or otherwise disclose (i) the Products, (ii) any associated programs derived or developed from the Products, or (iii) the results of any benchmark tests run on the Products, without the express written approval of Cincom. Depending on the circumstances, Cincom's approval maybe contingent upon the payment of a fee. 8.4 Customer will not be liable for disclosure of any information of the Products if: 8.4.1 the information is rightfully known to Customer prior to receipt of it from Cincom without restriction on disclosure; or 8.4.2 the information is in or comes into the public domain through no act or omission on the part of Customer; or 8.4.3 the information is rightfully disclosed to Customer by a third party without restriction on disclosure; or 8.4.4 the information is independently developed by Customer; or 8.4.5 the information is required by law to be disclosed by Customer, provided Customer gives Cincom a reasonable opportunity to contest the disclosure and/or obtain a protective order. 8.5 The Products and all copies and versions of the Products made by Customer are and shall remain the sole property of Cincom or its licensors. Customer shall include the Products' proprietary notice on all copies of the Products, in whole or in part and in any form, made by Customer. 8.6 The obligations set forth in this Section 8 shall survive the termination of this Agreement. Customer acknowledges that a breach of its obligations under this Section 8 will cause irreparable harm to Cincom and/or its licensors for which monetary damages would be inadequate. Cincom and/or its licensors will be entitled to injunctive relief for any such breaches, threatened or actual. 9. General Provisions 9.1 This Agreement and any claim, whether in contract, tort, or otherwise, arising out of this Agreement shall be governed by and construed in accordance with the laws of Ohio, excluding its conflict of laws principles. 9.2 Any notice regarding this Agreement directed to Cincom, shall be delivered by hand, commercial overnight courier, or certified mail, return receipt requested, to the address set forth below: Cincom Systems, Inc. Attn: Legal Department 55 Merchant Street Cincinnati, OH 45246 9.3 The failure of either party to act upon any right, remedy, or breach of this Agreement shall not constitute a waiver of that or any other right, remedy, or breach. No waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. 9.4 Customer shall not transfer its rights or obligations under this Agreement without the prior written approval of Cincom. Cincom will not unreasonably withhold such approval, however, depending on the circumstances, approval may be contingent upon the payment of a fee. Subject to the foregoing restriction on transfer, this Agreement shall be binding upon and inure to the benefit of the parties' successors and assigns. 9.5 This Agreement, which includes all addenda and written amendments now or hereafter made to this Agreement, constitutes the entire agreement and understanding between the parties relating to the license and use of the Products. Any representation, statement, or warranty not expressly contained in this Agreement shall not be enforceable by the parties. This Agreement may not be amended or modified except by a writing, which specifically references this Agreement and is signed by authorized representatives of Cincom and Customer. Cincom's licensors shall be third party beneficiaries under this Agreement. 9.6 This Agreement is effective upon acceptance of the terms and conditions herein and download/delivery of the product and will remain in effect until terminated in accordance with the Section 4 of this Agreement. ca2695 032800