licenseagreement.txt

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SOFTWARE LICENSE AGREEMENT

READ THIS AGREEMENT BEFORE INSTALLING THE SOFTWARE.

THANK YOU FOR CHOOSING THIS ILOG SOFTWARE PRODUCT. BY CLICKING ON THE"I AGREE" BUTTON OR BY DOWNLOADING OR OTHERWISE INSTALLING THESOFTWARE, YOU ("LICENSEE" or "YOU") ARE AGREEING TO THIS AGREEMENT.IF YOU DO NOT AGREE WITH ALL OF THIS AGREEMENT, PLEASE CONTACT YOURSALES REPRESENTATIVE. IN THIS AGREEMENT, "ILOG" MEANS ILOG S.A. ANDITS SUBSIDIARIES.

This Agreement specifies how Licensee may use the computer softwareand related documentation, which Licensee receives from ILOG. Nopurchase order, other document, exhibit or addendum, shrinkwrapagreement, clickwrap agreement or any handwritten or typewritten textpurporting to modify or supplement the text of this Agreement will addto or vary the terms of this Agreement unless signed by an authorizedrepresentative of both parties.

1. Definitions.

A. "Agreement" means these general terms and conditions and any

Purchase Order (exclusive of any preprinted terms and conditions) thatreferences this Agreement and any written amendments to any of theforegoing executed by the parties.B. "Application" means any software program that is created by orfor Licensee using the Development Software and which embeds andexecutes the Deployment Software.C. "Application Use" means a single execution of the DeploymentSoftware in an Application.D. "Application User" refers to an individual who may use asingle copy of an Application.E. "CPU" means a single central processing unit (i.e. aprocessor) in a computer or server.F. "Development Software" means an ILOG class library, component

or development tool.G. "Deployment Software" means the portions of the DevelopmentSoftware that are integrated with other software programs, tools andcode and embedded into an Application.H. "Documentation" means the reference manual and any other user manual that accompanies the Development Software.I. "Licensed Software" means the Development Software and theDeployment Software.J. "Maintenance" means the technical and customer support offeredby ILOG for the Licensed Software.K. "Platform" means a specific combination of hardware, operatingsystem software, and other software (e.g., compiler, window manager,Java Virtual Machine, etc.) on which ILOG supports and Licensee may

use the Licensed Software.L. "Purchase Order" means an order for Licensed Software and/orMaintenance that has been issued to ILOG by Licensee and that isaccepted by ILOG and is consistent with an ILOG quote.M. "Version" means a release of the Development Software, that isidentified in the form of X.Y, where X represents a major release orbase level version, and Y represents a minor release level version.

2. License Grants. Subject to the terms and conditions of this Agreement including the


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payment of any applicable license fees, ILOG grants to Licensee aperpetual (unless otherwise specified in an applicable PurchaseOrder), non-exclusive, worldwide, non-transferable (except pursuant toa permitted assignment as described in Section 6), license to:

(a) Use the Development Software, for the design, development andsupport of an Application on the Platform(s), as specified in anapplicable Purchase Order. The foregoing usage right is referred toas a "Development License." The number of Development Licenses thatLicensee has purchased from ILOG is indicated on an applicablePurchase Order. If Licensee has contracted with third parties toperform some or all of the development work for the creation orupgrading of the Application(s), such third party may have access tothe Development Software so long as the third party's use of theDevelopment Software is consistent with this Agreement. Licensee maymake two (2) copies of the Development Software for each Platform forwhich Licensee has purchased a Development License, for normal backupand archival purposes.(b) Use the Deployment Software on the Platform, as an embeddedcomponent of Licensee's Application. Licensee's Application may beused in a production environment, or in a non-production environment(as more specifically described below), so long as Licensee's use ofthe Application is specifically and directly in furtherance ofLicensee's internal business operations only. The foregoing usage

right is referred to as a "Deployment License." The number and type(i.e., "Use-based" or "CPU-bound") of Deployment Licenses thatLicensee has purchased appears on an applicable Purchase Order. Anon-production environment means the Application is used forApplication integration, back-up, testing and quality assurance,and/or training of Licensee's employees. If Licensee has contractedto have its Application-related internal business operations performedby third parties, such third party(s) may have access to theApplication so long as the third party's access and use of Licensee'sApplication is consistent with the terms of this Agreement.(c) Use the Documentation in a manner consistent with the aboveuses of the Licensed Software and reproduce portions of theDocumentation as necessary to design, develop and update the

documentation, instructions and user's guides relating to Licensee'sApplication, whether in printed or electronic format. Licensee mayincorporate portions of the Documentation into its own documentation.This license does not give Licensee the right to reproduce anddistribute identical copies of the Documentation. All proprietarynotices contained in the original copies of the Documentation must bereproduced and included in the portions of the Documentation, if any,that are incorporated into Licensee's documentation for itsApplication.

3. License Restrictions.

(a) Licensee agrees that no Application may give direct or exposed

access to the component library application programming interface ofthe Development Software and in the case of Deployment Softwarewritten in the Java programming language, Licensee shall ensure, bytechnical solution and/or by contract, that the Application User maynot decompile, nor develop with such Deployment Software, nor invokeany of the Development Software's application programming interfaces.(b) Licensee agrees that it will not, and will use best efforts toprevent Licensee's employees, agents or representatives from doing orattempting any of the following: (i) translating, disassembling,decompiling, reverse compiling or reverse engineering the Development


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Software (except as permitted by law); (ii) modifying, copying (exceptas permitted herein) or creating derivative works from the DevelopmentSoftware (except for the Application development specificallyauthorized herein); (iii) giving, renting, leasing, loaning, ordistributing the Licensed Software and/or Documentation ortransmitting the Application over an external network; (iv) providinginformation processing services to any third party with theApplication; or (vi) exceeding the number of licenses purchased(alternatively, Licensee agrees to purchase the number of licensescorresponding to the excessive use).(c) Licensee may not use the Licensed Software on any Platformthat is not supported by ILOG, as indicated in the Documentation.

4. License Purchase/Terms of Payment. For each use or user of the Development Software, Licensee shall berequired to purchase a Development License; (ii) for each use of anApplication in a production environment, Licensee shall be required topurchase a Deployment License; and (iii) for each use of anApplication in parallel to the production environment (including forback-up, integration and/or testing purposes), Licensee shall berequired to purchase a Deployment License. The terms of payment arenet 30 days from receipt of an ILOG invoice, unless otherwise agreedin writing by ILOG.

5. Title. ILOG retains all rights in the Licensed Software and Documentation notgranted herein and no license rights are impliedly granted toLicensee.

6. Transfer and Assignment by Licensee. Except with respect to third party contractors that are performingdevelopment or Application-related internal operational services forand on behalf of Licensee, to which Licensee may temporarily transferLicensee's rights hereunder, Licensee may not assign or transfer anyof the Licensed Software and/or Documentation or assign this Agreementin any manner without ILOG's prior written consent, which consentshall not be unreasonably withheld. In the event that Licensee

permits a third party to use the Development Software or theApplication, as permitted herein, Licensee assumes full responsibilityfor such third party's compliance with this Agreement. ShouldLicensee's day to day operations experience a change in ownership orcontrol ("Change of Control"), Licensee shall be required to provideILOG with notice in advance of the Change of Control. In the event ofa Change of Control, Licensee shall be entitled to assign thisAgreement without ILOG's advance written consent (provided the noticedescribed above has been given) except where (i) the purportedassignee is a direct competitor of ILOG's, in ILOG's reasonablejudgment, or (ii) the purported assignee already has a contract withILOG. In each of the foregoing specified instances, Licensee shall berequired to seek ILOG's written consent to an assignment, which may be

withheld in ILOG's discretion. It is further understood and agreedthat consent by ILOG to an assignment in one instance shall notconstitute consent to any other assignment. All assignees are boundby the terms and conditions of this Agreement. Any attemptedassignment in conflict with the foregoing provisions is void.

7. No Sublicense or Application Licensing Rights. Licensee may not sublicense any of the Licensed Software and/or theDocumentation or license to third parties any Application created byor on behalf of Licensee.


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8. Reasonable Controls. Licensee will implement reasonable controls to insure that Licenseedoes not exceed the number of licenses of Licensed Software designatedin an applicable Purchase Order.

9. Use of ILOG's Proprietary Marks and Logos. Licensee agrees at all times to comply with ILOG's Trademark and LogoUsage Guidelines, which can be found atwww.ilog.com/corporate/legal/logo.cfm.

10. Delivery and Acceptance. All deliveries hereunder shall be F.O.B. from the ILOG facilities fromwhich the Development Software is shipped and shall be deemed acceptedupon delivery to the carrier. If Licensee downloads the DevelopmentSoftware electronically, acceptance of the Licensed Software shall bedeemed to have occurred as of the date of the first completeddownload. Licensee shall be deemed to have completed any downloadthat is commenced unless Licensee notifies ILOG immediately that itwas unable to complete the download.

11. Limited Warranty. ILOG warrants to Licensee that for a period of one-hundred eighty(180) calendar days from delivery or download of the Development

Software (the "Warranty Period"), such Licensed Software, if operatedas directed on the Platform, will substantially achieve thefunctionality described in the Documentation in all material respects.Licensee must report warranty claims to ILOG within five (5) daysafter expiration of the Warranty Period. ILOG does not warrant thatLicensee's use of Licensed Software will be uninterrupted or that theoperation of such Licensed Software will be error-free. Licensee'ssole and exclusive remedy for any breach of the above warranty shallbe that ILOG, at its option, and at its own cost and expense, either(i) repairs or replaces the defective Licensed Software, or (ii)provides Licensee with a reasonable workaround so that the LicensedSoftware substantially achieves the functionality described in theDocumentation. If neither of the foregoing alternatives is reasonably

feasible in ILOG's sole discretion, Licensee shall have the right toreturn the Licensed Software in question and ILOG shall refund toLicensee all fees paid for the defective Licensed Software. In theevent the Warranty claim concerns a new Version provided pursuant toILOG's Maintenance terms, the foregoing right to refunded license feesshall not apply; instead, Licensee shall only receive a refund of theMaintenance fees paid for the defective Licensed Software for the yearin which the new Version was distributed. Repaired, corrected, orreplaced Licensed Software shall be covered by this limited warrantyfor the full one-hundred eighty (180) calendar days of the originalWarranty Period.

The above warranty shall not apply if: (i) the Licensed Software has

been modified in any respect by Licensee; (ii) if the LicensedSoftware is used on or in conjunction with hardware or software otherthan the unmodified version of the Platform with which the LicensedSoftware was designed to be used as described in the Documentation; or(iii) Licensee is not using the most current Version, and the warrantyclaim would have been avoided by the use of the most current Version,provided such Version was made available to Licensee.

EXCEPT FOR THE ABOVE, ILOG MAKES NO OTHER EXPRESS, IMPLIED ORSTATUTORY WARRANTIES AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF


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MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND, WITHOUTPREJUDICE TO THE INDEMNIFICATION PROVIDED FOR IN SECTION 14,NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

12. Confidentiality of Licensed Software. During the term of this Agreement and surviving its expiration ortermination, Licensee hereby acknowledges ILOG's contention that thestructure, organization and underlying source code of the LicensedSoftware are the valuable trade secrets of ILOG and/or its Licensors,and that the Documentation is copyright protected. If Licensee becomesaware of the unauthorized possession or use of any Licensed Softwareor of the Documentation supplied under this Agreement, Licensee shallpromptly notify and provide details to ILOG.

13. Limitation of Liability. EXCEPT FOR SECTIONS 3(a) and (b) ("LICENSE RESTRICTIONS") AND 14("INDEMNIFICATION"), NEITHER PARTY'S AGGREGATE LIABILITY FOR ANY CLAIMARISING OUT OF THIS AGREEMENT WILL BE MORE THAN THE AMOUNT OF CHARGESFOR THE LICENSED SOFTWARE PAID BY LICENSEE UNDER THIS AGREEMENT DURINGTHE (12) MONTHS IMMEDIATELY BEFORE THE DATE OF THE INITIAL EVENTRESULTING IN SUCH CLAIM. THIS LIMIT SHALL APPLY TO ANY AND ALL CLAIMSREGARDLESS OF THE LEGAL THEORY ON WHICH THEY ARE BASED, AND SHALLINCLUDE ALL COSTS AND FEES. NEITHER PARTY WILL BE LIABLE UNDER THISAGREEMENT FOR LOST PROFITS OR FOR CONSEQUENTIAL, SPECIAL, INDIRECT,

INCIDENTAL OR EXEMPLARY DAMAGES IN CONNECTION WITH OR ARISING OUT OFTHE FURNISHING, FUNCTIONING OR USE OF THE LICENSED SOFTWARE OR ANYSERVICE PROVIDED UNDER THIS AGREEMENT OR OF THE LICENSES GRANTEDHEREIN, REGARDLESS OF THE LEGAL THEORY ON WHICH THEY ARE BASED, EVENIF THAT PARTY HAS BEEN ADVISED OF OR SHOULD HAVE REALIZED THEPOSSIBILITY OF SUCH DAMAGES.

14. Indemnification. ILOG will defend (at its expense), indemnify and hold Licensee, itsofficers, directors, employees, and any third party agents performingdevelopment work for or on behalf of Licensee as permitted under thisAgreement, harmless against any claim, suit or proceeding broughtagainst Licensee based on a claim that the Licensed Software (so long

as it has not been modified in any respect) infringes a patent(limited to those granted by the U.S., and member countries of theEuropean Union), a copyright enforceable in any country which is asignatory to the Berne Convention, a trademark, or a trade secret.Such indemnification obligation will require that Licensee: (i) giveILOG prompt written notice of any such claim; (ii) allow ILOG tocontrol the defense and settlement of such claim; and (iii) provideILOG with all information and assistance (at ILOG's expense) fordefense and settlement of such claim. ILOG will not be responsiblefor any settlement or compromise made without its consent.

If such infringement claim or action has occurred or in ILOG'sjudgment is likely to occur, Licensee shall allow ILOG, at ILOG's

option and expense, to either: (a) procure for Licensee the right tocontinue using the Licensed Software at no additional charge toLicensee; (b) modify such Licensed Software to become non-infringingat no additional charge to Licensee; (c) replace said LicensedSoftware with materially equivalent non-infringing software at noadditional charge to Licensee; or (d) if none of the foregoingalternatives is reasonably feasible in ILOG's sole discretion,Licensee shall return the Licensed Software in question and ILOG shallrefund the corresponding license fees paid, depreciated over astraight line five year period. The foregoing represents Licensee's


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sole and exclusive remedies for any infringement claim or actionarising out of Licensee's use of the Licensed Software. ILOG SHALLHAVE NO OBLIGATION TO DEFEND OR HOLD LICENSEE HARMLESS IF ANY ALLEGEDINFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS IS BASED UPON (i) USEOF THE LICENSED SOFTWARE IN COMBINATION WITH ANY EQUIPMENT, DEVICES,OR SOFTWARE NOT DELIVERED BY ILOG IF SUCH INFRINGEMENT CLAIM COULD NOTBE MADE AGAINST THE LICENSED SOFTWARE ALONE; (ii) USE OF THE LICENSEDSOFTWARE IN A MANNER FOR WHICH IT WAS NOT INTENDED AS STATED IN THEDOCUMENTATION; OR (iii) USE OF OTHER THAN THE MOST CURRENT VERSION IFSUCH CLAIM WOULD HAVE BEEN PREVENTED BY THE USE OF SUCH VERSION ANDSUCH VERSION HAS BEEN MADE AVAILABLE TO LICENSEE.

15. Term and Termination.

(a) Term. This Agreement shall take effect upon acceptance of theLicensed Software and shall remain in effect thereafter unlessterminated in accordance with the following provisions.(b) Termination by ILOG. If Licensee has failed to pay anylicense fees due and payable, ILOG shall have the right (in additionto all other available remedies) to terminate the license(s)corresponding to the non-payment upon ten (10) business days priorwritten notice, without further obligation or liability to Licensee.ILOG may terminate this Agreement, and all of the licenses subjectthereto (in addition to any other available remedies), for a material

breach by Licensee of any of the provisions contained in Sections 2(License Grants), 3 (License Restrictions), 6 (Transfer and Assignmentby Licensee), 7 (No Sublicense or Application Licensing Rights), 12(Confidentiality of Licensed Software), or 17 (Compliance with Laws).ILOG shall provide notice that a material breach has been committedand, unless the parties agree to a longer period, Licensee shall havethirty (30) business days to cure any such breach. Upon terminationunder this Section (b), Licensee shall return all copies of theDevelopment Software and Documentation to ILOG or certify as to theirdestruction, and destroy all copies of the Deployment Software,whether or not embedded in Applications.(c) Termination by Licensee. Licensee shall have the right toterminate this Agreement if ILOG commits any material breach and

fails to remedy such breach within thirty (30) days, unless theparties agree to a longer period, after written notice by Licensee toILOG of such breach. Upon termination under this Section (c),Licensee shall continue to have the right to use the Development andDeployment Licenses purchased hereunder, so long as Licensee continuesto abide by Licensee's obligations relating thereto. To the extentthat the breach concerns Section 11 (Warranty) or 14 (Indemnification)and the foregoing termination rights are in conflict with the remedyprovisions of these sections, the terms of Section 11 or 14, asapplicable, will prevail.(d) Bankruptcy. Either party shall have the right to terminatethis Agreement and the licenses granted herein, effective immediatelyand without prior notice, if the other party goes into liquidation or

files for bankruptcy.

16. Taxes.Licensee shall be responsible for any taxes owed in connection withLicensee's purchase of the Licensed Software.

17. Compliance with Laws.Each party agrees that it will strictly comply with all national,federal, state, territorial and local laws and regulations, includingbut not limited to import or export laws and regulations, pertaining


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to the use of the Licensed Software and/or Documentation.

18. Miscellaneous.

(a) Complete Agreement. This Agreement represents the completeagreement between the parties with respect to its subject matter andsupersedes all prior and contemporaneous agreements, understandings,and any other negotiations and discussions between them with respectto the same subject matter, unless any duly executed written agreemententered into between ILOG and Licensee explicitly supersedes, amendsor takes precedence over this Agreement.(b) Notice. All notices required hereunder shall be in writingand shall be deemed to have been duly given if delivered in person, bycommercial overnight courier or by facsimile, if receipt of suchfacsimile can be established by competent evidence.(c) Severability. If any portion of this Agreement becomesunenforceable or illegal, such portion shall be deemed eliminated andthe remainder of this Agreement shall remain in effect to the extentpractical.(d) Governing Law. The laws of the jurisdiction where the ILOGentity providing the Development Software has its principle place ofbusiness shall govern this Agreement, without regard to suchjurisdiction's conflicts of laws principles.(e) Waiver. No waiver of any breach of this Agreement shall be

effective unless in writing, nor shall any waiver be treated as awaiver of any subsequent breach of any provision of this Agreement.(f) No Agency. Nothing in this Agreement shall be construed tocreate any agency, partnership or other form of joint enterprisebetween the parties.(g) Maintenance Services. If offered by ILOG, Licensee may electto receive ILOG's maintenance services under the terms of ILOG'sstandard maintenance contract, subject to Licensee's payment of therequired fees thereunder.(h) Assignment by ILOG. ILOG may assign this Agreement as amatter of right, in whole or part, without the prior written consentof Licensee in the event of a merger, acquisition, reorganization,consolidation or change in control or ownership. Licensee's

assignment rights are as detailed in Section 6 above. All of theterms, conditions, covenants, and agreements contained herein shallinure to the benefit of, and be binding upon, any such parent companyor successor corporation and any permitted assignees of the respectiveparties hereto.(i) Inconsistencies Between Agreement and Purchase Orders andOther Documents. This Agreement shall govern and control in the caseof any inconsistency between it and any Purchase Order, any otherlicense terms or agreements not duly executed in writing by bothparties or other document issued by either party.

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