OmniMark® CI Software License Agreement

OMNIMARK^® CI Software License Agreement

OMNIMARK TECHNOLOGIES CORPORATION ("OMNIMARK TECHNOLOGIES") IS ONLY WILLING TO LICENSE THE SOFTWARE REFERRED TO HEREIN ON THE TERMS CONTAINED IN THIS SOFTWARE LICENSE AGREEMENT, WHICH FORMS A LEGAL AGREEMENT BETWEEN YOU ("LICENSEE") AND OMNIMARK TECHNOLOGIES.

PLEASE READ THE FOLLOWING LICENSE AGREEMENT BEFORE STARTING TO DOWNLOAD OR INSTALL THE SOFTWARE. BY CLICKING ON THE "ACCEPT" BUTTON AFTER READING THE AGREEMENT, YOU ARE CONSENTING TO BE BOUND BY ALL OF THE TERMS OF THE AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT, CLICK ON THE "CANCEL" BUTTON BELOW AND THE DOWNLOADING OR INSTALLATION PROCESS WILL NOT CONTINUE.

1. INTRODUCTION

(a) This Agreement specifies Licensee's rights and obligations in respect of Licensee's copy of OmniMark Technologies' OmniMark CI software, fully enabled by the Authorization Key, and related documentation (collectively, the "Software").

(b) OmniMark CI is a software product which:

(i) takes as input an OmniMark® source program or OmniMark intermediate binary ("Saved Application") along with XML/SGML documents and/or other data files and/or database information and/or other incoming streams of information and performs transformations on the data in accordance with the instructions in the source program or Saved Application; or

(ii) takes as input an OmniMark source program and creates a Saved Application for later use or distribution; and

(iii) provides connectivity components allowing integration with related applications such as, for example, databases.

(c) An Authorization Key is a unique sequence of numbers and letters which, when supplied by OmniMark Technologies, enables Licensee's copy of OmniMark CI.

2. LICENSE

(a) Subject to the terms and conditions of this Agreement, OmniMark Technologies grants to you, the Licensee, a limited, non-exclusive, non-assignable right to use the executable version of the Software as specified in Section 2(b) of this Agreement. This Agreement gives you limited rights to use the Software in conjunction with the user documentation; however, this Agreement is not a sale, rental or lease of the Software or any copy thereof, and OmniMark Technologies retains all rights not expressly granted to you. The Licensee will, under no circumstances, acquire any title or ownership of the Software or of any patent, trademark, trade secret, copyright or other intellectual property rights therein or related thereto.

(b) The Software consists of a number of components which may be used as follows:

(i) "OmniMark^® LE": This component of the Software may be installed and run on any compatible computer platform on the Licensee's premises;

(ii) "OmniMark CI": The use of this component of the Software is governed by a license management tool. The license management tool permits each OmniMark CI process to execute simultaneously on a number of the Licensee's computers. This number is defined by the number of "float tokens" and "fixed tokens" licensed by the Licensee. A float token may be used by any computer on a network; a fixed token may be used only on a designated host computer;

(iii) "Connectivity" This component of the Software may be installed and run on any compatible computer platform on the Licensee's premises.

(c) The Software shall be used only in conjunction with the server authorized by the Authorization key. Upon notice to OmniMark Technologies, the Software may be used temporarily on a backup system when the authorized server is inoperable.

(d) The Software is and will remain copyright protected work of OmniMark Technologies. All right, title and interest in and to the Software, including all intellectual rights therein, is owned by OmniMark Technologies. The Software is confidential information of, and trade secret to, OmniMark Technologies. You may not sub-license, rent, lease, sell, network, transfer, or otherwise distribute or dispose of the Software or your rights under this Agreement on a permanent or temporary basis to any third party without the prior written permission of OmniMark Technologies. Furthermore, you may under no circumstances license, sub-license, rent, lease, sell, or otherwise distribute for monetary compensation any program created with the Software to any third party be it as a stand alone application or as an incorporated part of a software product. You may not copy, alter, adapt, or translate the Software or make any derivative copies thereof. Except to the minimum extent permitted by law, you may not modify, decompile, disassemble or reverse engineer the Software, or attempt to do so.

(e) The Licensee is authorized and encouraged to use, copy, backup, transfer, execute, and distribute Saved Applications without payment of further fees to OmniMark Technologies, subject to the terms of this Agreement; however for certainty, the Licensee may not provide the Software or copies thereof to any third party except as provided for herein.

3. PAYMENT OF LICENSE FEES

(a) The Licensee shall pay the license fee to OmniMark Technologies, or its authorized distributor, within thirty (30) days of the date of the invoice unless otherwise stated in writing, and the Licensee agrees to pay all taxes, including withholding taxes, assessments and duties resulting from this Agreement or its use of the Software, excepting taxes based on the income of OmniMark Technologies.

(b) Notwithstanding any other provision of this Agreement, default under Section 3(a) shall be the basis for immediate termination of this Agreement by OmniMark Technologies.

4. MAINTENANCE AND SUPPORT

(a) Licensee may purchase maintenance and support at the time the Software is ordered or in accordance with Section 4(b). Maintenance and support will be offered on an annual basis, and upon acceptance by Licensee, prior to the expiry of the then current annual term, shall be renewed for another annual term at the then current fees. If maintenance and support is purchased, the Licensee shall pay OmniMark Technologies, or its authorized distributor, the standard fees in effect at the time of the purchase or renewal of maintenance and support offered by OmniMark Technologies. The parties hereby agree that the terms of such maintenance and support for any annual term shall be as described in Section 4(c), or as issued from time to time in writing by OmniMark Technologies, and in effect at the date of purchase or renewal.

(b) If the Licensee does not elect to obtain maintenance and support or allows existing coverage to lapse, the Licensee may obtain such coverage at a later date provided that in addition to paying for the succeeding annual period of maintenance and support fees, the Licensee shall be required to pay fees applicable to maintenance, which shall be calculated as two thirds of the current rates that would have been payable from the later of the date of delivery of the Software to the Licensee or the expiry of the maintenance and support coverage for the Software.

(c) Support consists of telephone support concerning the installation and use of the then current release of Software and the previous sequential release. Unless otherwise provided for in writing, support is provided to Licensee by OmniMark Technologies' authorized distributor. Maintenance consists of error correction and product updates. Product updates consist of one copy of the published revisions to the printed documentation and one copy of revisions to the Software which is not designated by OmniMark Technologies as products for which it charges a separate fee.

(d) Notwithstanding any other provision of this Agreement, the Licensee acknowledges and agrees that OmniMark Technologies will neither maintain nor support the OmniMark LE component of the Software under this Agreement.

5. WARRANTIES

(a) OmniMark Technologies warrants that it has the right to license the Software subject to the terms and conditions of this Agreement.

(b) OmniMark Technologies warrants that for a period of thirty (30) days after delivery of the Software to the Licensee (the "Warranty Period"), the Software, when properly installed, will substantially conform to the functional specifications for the specified computer platform contained in OmniMark Technologies' standard product User's Guides delivered to the Licensee with the Software. In the event that the Software fails to substantially conform with such functional specifications, then OmniMark Technologies may elect to take such corrective action as it deems requisite or terminate this Agreement. Upon such termination, the Licensee shall immediately return the Software, and OmniMark Technologies shall refund the license fee paid by the Licensee for the specified computer platform and shall have no further liability to the Licensee.

(c) Notwithstanding any other provision of this Agreement, the Licensee acknowledges and agrees that the OmniMark LE component of the Software is provided "as is" without warranty of any kind, express or implied.

(d) unless prohibited by law, the foregoing warranties ARE THE ONLY WARRANTIES given by omnimark technologies in respect of the software AND are in lieu of all other warranties or conditions express or implied, including, but not limited to, implied warranties or conditions of merchantable quality and fitness for a particular USE OR purpose and those arising by statute or otherwise in law or from a course of dealing or usage of trade.

6. LIMITATIONS OF LIABILITY

(a) Under no circumstances shall OmniMark Technologies have any liability to the licensee for consequential, indirect, incidental or special damages, whether or not such damages are foreseeable and whether or not OmniMark Technologies has been advised of the possibility thereof, including, but not limited to, lost profits, lost business revenue, failure to realize expected savings or any other commercial or economic loss of any kind or for costs or damages arising from any claim against the Licensee by any other party.

(b) Notwithstanding anything to the contrary in this Agreement, the entire liability of OmniMark Technologies hereunder for damages from any cause whatsoever, and regardless of the form of action or the cause of action, whether in contract or tort, INCLUDING NEGLIGENCE, shall be limited to the license fee paid by the Licensee hereunder to OmniMark Technologies for the right to use the specific copy of the Software that caused the damage.

7. PATENT AND COPYRIGHT INDEMNITY

(a) OmniMark Technologies shall assume liability for and shall indemnify and hold the Licensee harmless from and against all claims, demands, actions and liability arising out of or in connection with any claim made against the Licensee alleging infringement by the Software of a patent right or copyright. The Licensee must notify OmniMark Technologies promptly, in writing, of any claim made or suit or proceeding brought or threatened against the Licensee based upon the foregoing. OmniMark Technologies shall be entitled, at its own expense, to defend any such suit or proceeding in the Licensee's name or the name of OmniMark Technologies as may be appropriate in the circumstances. The Licensee shall cooperate, at its own expense, in the defence of any such claims and shall make available to OmniMark Technologies all the materials reasonably required for use in defending such claim. The Licensee shall not settle or compromise any such claim or demand without OmniMark Technologies' consent. If all or any portion of the Software is held to infringe and its use is enjoined or, if in OmniMark Technologies' opinion, the Software is likely to become subject to a claim of infringement, OmniMark Technologies shall, at its expense and sole option, either procure for the Licensee the right to continue using the Software, modify the Software so that the infringement is avoided, or remove the Software and refund a pro-rated portion of the license fee paid by the Licensee under this Agreement in respect of the Software (based on a five (5) year life).

(b) OmniMark Technologies shall have no obligation to defend the Licensee or to pay any costs or damages for any claim based upon:

(i) the use of other than a current unaltered release of the Software, if such infringement would have been avoided by the use of a current unaltered release of the Software;

(ii) the combination, operation or use of the Software with any other programs, data or hardware, if such infringement would not have occurred without the combination, operation or use of the Software with the other programs, data or hardware; or

(iii) the use of the Software in any unauthorized manner or on any unauthorized Computer Hardware.

(c) The foregoing states the entire liability of OmniMark Technologies and the exclusive remedies of the Licensee for patent or copyright infringement.

8. Term

Subject to Section 9 this Agreement shall be in effect until the expiry of the Authorization Key, which date is specified on the Authorization Key Information Sheet, or in the event that no date is specified, in perpetuity.

9. TERMINATION

(a) Either party may, at its option, terminate this Agreement and the license granted herein, in the event that the other party is in material breach of this Agreement and such breach is not remedied within thirty (30) days of receipt of written notice of such breach.

(b) OmniMark Technologies may terminate this Agreement and the license granted herein if the Licensee ceases conducting business in the normal course; becomes insolvent or makes a general assignment for the benefit of its creditors; suffers or permits the appointment of a receiver for its business or assets; or avails itself of or becomes subject to any proceedings under applicable bankruptcy legislation or any other statute of any governmental authority relating to insolvency or the protection of the rights of creditors.

(c) Upon termination of this Agreement, the Licensee shall immediately discontinue using the Software and shall return to OmniMark Technologies as soon as possible, all copies of the Software including the Authorization Key and all materials in its possession related to the Software.

(d) Termination of this Agreement at any time shall not relieve the Licensee of its obligation to pay OmniMark Technologies any amount due or accrued before such termination and the Licensee shall not, subject to the terms and conditions of this Agreement, be entitled to a refund of the license fee, maintenance, or support fees.

10. NON-WAIVER

No delay or failure of either party in exercising any right hereunder and no partial exercise thereof shall be deemed to constitute a waiver of such right or any other rights hereunder. Any consent by either party or any waiver of or breach of any express or implied term of the within Agreement shall not constitute a consent to or waiver of or excuse of any subsequent or other breach.

11. SEVERABILITY

In the event that any provision of the within Agreement shall not be enforceable the remainder of the within Agreement shall remain in full force and effect.

12. SURVIVABILITY

Notwithstanding any termination of this Agreement, howsoever occurring, the terms and conditions herein relating to limitation of liability, proprietary rights, confidentiality, transfer restrictions, disposition of the Software upon termination, U.S. Government restricted rights and export control, and all terms and conditions contained in Sections 10 to 16, inclusive, shall continue in full force and effect and shall survive such termination.

13. SUCCESSORS AND ASSIGNMENT

This Agreement shall be binding upon and enure to the benefit of the parties hereto and their respective legal successors and permitted assignees. The Licensee shall not sell, transfer or assign this Agreement, nor any of its rights, duties or obligations hereunder, without the prior written notification to OmniMark Technologies.

14. RELATIONSHIP OF THE PARTIES

Neither the making of this Agreement nor the performance of its provisions shall be construed to constitute either of the parties hereto an agent, employee, partner, joint venturer or legal representative of the other. The parties are independent contractors of each other.

15. PERFORMANCE GENERALLY

OmniMark Technologies is not responsible for failure to fulfill its obligations under this Agreement due to causes beyond its control.

16. EXPORT CONTROLS

None of the Software or the underlying information or technology may be exported to a country outside Canada, except in compliance with the export laws and regulations of Canada. In particular, none of the Software or the underlying information or technology may be exported or re-exported to any country to which the Government of Canada has prohibited the shipment of such Software, information or technology. By downloading/transferring or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country.

17. UNITED STATES GOVERNMENT LICENSES

(a) The remaining clauses in this Section 17 are only applicable where the License is acquired by or on behalf of a unit or agency of the United States Government:

(b) This Software (i) was developed at private expense, and no part of it was developed with government funds; (ii) is a trade secret of OmniMark Technologies for all purposes of the Freedom of Information Act; (iii) is "commercial computer software" submitted with restricted rights in accordance with Federal Acquisition Regulations ("FARS") 52.227-19 of the Commercial Computer Software-Restricted Rights Clause and its successors and as expressly stated in OmniMark Technologies' standard commercial agreement incorporated into the contract between OmniMark Technologies and the government entity; (iv) in all respects is proprietary data belonging solely to OmniMark Technologies; and (v) is unpublished and all rights are reserved under the copyright laws of the United States.

(c) For units of the Department of Defense ("DOD"), this Software is licensed only with "Restricted Rights" as that term is defined in the DOD Supplement to the Federal Acquisition Regulations ("DFARS") 52.227-7013(c)(1)(ii) and its successors, and use, duplication, or disclosure is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 52.227-7013. Manufacturer: OmniMark Technologies Corporation, Ottawa, Ontario, Canada.

(d) If this Software was acquired under a GSA Schedule, the Government has agreed (i) to refrain from changing or removing any insignia or lettering from the Software that is provided or from producing copies of user guides or disks (except one copy for backup purposes); (ii) that title to and ownership of this Software and any reproductions thereof shall remain with OmniMark Technologies; (iii) that use of this Software shall be limited to the facility for which it is acquired; and (iv) that if use of the Software is discontinued at the installation specified in the purchase/delivery order and the Government desires to use it at another location, it may do so by giving prior written notice to OmniMark Technologies, specifying the type of computer and the new location site.

(e) Government users other than under a DOD contract or GSA Schedule are hereby notified that use of this Software is subject to restrictions that are the same as or similar to those set forth above.

18. GOVERNING LAW

Where a dispute arises related to the Software, the parties agree that this Agreement shall, in all respects, be governed by and construed in accordance with the laws of the Province of Ontario, Canada, and the law of Canada applicable therein. The parties hereby agree to submit to the non-exclusive jurisdiction of the courts of Ontario provided that nothing herein shall prevent OmniMark Technologies from proceeding at its election against the Licensee in the courts of, and under the laws of, any other jurisdiction. The parties agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall not apply to this Agreement nor to any dispute or transaction arising out of this Agreement. Because some jurisdictions do not allow the exclusion or limitation of implied warranties or liability for consequential or incidental damages, some of the exclusions or limitations set out in this Agreement may not apply to you.

19. ENTIRE AGREEMENT

The Agreement constitutes the full and entire Agreement between the Licensee and OmniMark Technologies and supersedes all previous oral or written agreements or representations relating to the subject matter hereof, made by OmniMark Technologies or any distributor. No modifications or waivers of, or amendments to this Agreement, shall be effective unless in writing and signed by the duly authorized representatives of the Licensee and OmniMark Technologies. The Licensee expressly agrees that no terms or conditions contained in any purchase order shall form part of, amend, or replace the terms of this Agreement.

You acknowledge that you have read AND THAT YOU understand THE TERMS AND CONDITIONS OF this AGREEMENT.

OmniMark CI License Agreement (Rev. 2.2) [ELD45-0698]