Development License Agreement

 ---------------------------------------------------------------------- ---------------- ---------------- Tanuki Software, Ltd. Development Software License Agreement Version 1.3 IMPORTANT-READ CAREFULLY: This License Agreement is a legal agreement between you ("Licensee") and Tanuki Software, Ltd. ("TSI"), under which TSI grants licenses with respect to computer software, associated media, printed materials, and may include online or electronic documentation. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE YOU INSTALL, COPY, DOWNLOAD OR USE THE SOFTWARE ACCOMPANYING THIS PACKAGE. BY INSTALLING, COPYING, DOWNLOADING OR USING THE SOFTWARE, YOU, ON BEHALF OF YOURSELF AND/OR THE BUSINESS YOU REPRESENT, AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT INCLUDING ALL TERMS AND CONDITIONS INCORPORATED HEREIN BY REFERENCE. The Licensee may optionally request that this agreement be signed by both parties: License Agreement Number: TSILA-____________ Pursuant to this DEVELOPMENT SOFTWARE LICENSE AGREEMENT (the "Agreement") dated this __th day of ______, 20__ (the "Effective Date"), _____________________ ("Licensee") and Tanuki Software, Ltd. ("TSI") agree to the following terms and conditions: Section 1 - Grant of License Effective upon the payment of the license fees presented in Exhibit 1, TSI grants to Licensee a non-exclusive, non-transferable, non-sublicensable right and license to use, reproduce, display, sell, lease, distribute and transfer copies, directly or indirectly, of the Software Program and documentation, in executable code form only, as parts of Licensee Products within the Product Group(s) defined in Exhibit 1, for the purposes of marketing such Products to Licensee customers and for internal development of Products, during the period Licensee's subscription of the TSIMS (as defined in Section 5) effectively continues. Licensee may continue to market and distribute Product Versions containing the Software Program so long as such Product Versions have been completely developed by the end of the period Licensee's subscription of the TSIMS is active; provided however that under no circumstances may Licensee develop or continue to develop any new Product, or new Product Version, using or containing the Software Program after Licensee discontinues subscription of TSIMS. Licensee may not, under any circumstances, distribute or resell the Software Program as a stand-alone product, nor use the Software Program to create any Product to directly compete with the Software Program. Where the Licensee qualifies as a Small Business, as defined in Section 2.5, the Product Group restriction is removed and all Licensee Products will be covered by this agreement. Section 2 - Definitions 2.1. "Community Edition" shall mean versions of the Software Program distributed in source form under the Tanuki Software, Ltd. Community Software License Agreement (CSLA), and all new releases, corrections, enhancements and updates to the Software Program, which TSI makes generally available under the CSLA. 2.2. "Documentation" shall mean the contents of the website describing the functionality and use of the Software Program, located at http://wrapper.tanukisoftware.org 2.3. "Product" shall mean the computer programs, that are provided by Licensee to Licensee customers or potential customers, and that contain both the Software Program as a component of the Product, and a component or components (other than the Software Program) that provide the material functionality of the Product. If the Product is released in source form, the Software Program or any of its components may only be included in executable form. 2.4 "Product Version" shall mean a specific distribution or release of a Product. Any modifications to the distribution or release which include changes to program functionality or updated included modules or libraries constitute a new Product Version. 2.4 "Product Group" shall mean one or more Products or Product components which are designed as components of a common project, product, or product suite. 2.5 "Small Business" shall mean a company or organization with less than 100 employees and annual sales of less than 5 million USD, 4 million EUR, or 400 million JPY, depending on the currency used to purchase the Software Program, unless otherwise qualified in Exhibit 1. 2.6. "Software Program" shall mean the computer software and license file provided by TSI under this Agreement, including all new releases, corrections, enhancements and updates to such computer software, which TSI makes generally available and which Licensee receive pursuant to Licensee subscription to TSIMS. Some specific features or platforms may not be enabled if they do not fall under the feature set(s) covered by the specific license fees paid. Section 3 - Licensee Obligations Licensee shall be solely responsible for all marketing, manufacturing, packaging, documentation production, distribution and customer pricing of the Products, and ensure that the Products and Licensee's such activities shall be in compliance with the applicable laws and regulations. Except as otherwise provided in this Agreement, Licensee shall also assume all responsibility and liability to customers for related support and assistance. Under no circumstances may Licensee modify, decompile, reverse engineer or disassemble any executable code contained within the Software Program nor create or prepare derivative works of, or attempt to discover or modify in any way the underlying source code of the Software Program or any part thereof. Licensee agrees that Licensee will not, nor will Licensee authorize or license another to, sell, market or license the Software Program, or any portion thereof, as a standalone computer software program, component or software development tool, or as a component or components of a computer software program, the chief marketability and functionality of which is the Software Program. Licensee further agrees that Licensee will not publish, present or document the application programming interface (API) of the Software Program except as required for specific use within the Product. Licensee shall ensure that each end user receiving a copy of any Product shall receive a license agreement containing terms no less protective of the Software Program than those contained in Exhibit 2, which shall include the Copyright Notices described therein in a location that is obvious to Licensee's customers. Neither the Software Program nor Product may be modified, nor in any way obfuscate or obstruct the copyright notice and license information displayed in the console and log files by the Software Program on startup. Licensee may extend and/or modify the Community Edition of the Software Program and distribute under the terms of this agreement provided that a) the Software Program is only distributed in executable form, and b) a valid license key is distributed with Software Program such that the Software Program is able to access the license key, and c) the Copyright and "Licensed to {Licensee} for {Product}" notices are clearly visible in the console and log files of the Software Program on startup, and d) the "Licensed to {Licensee} for {Product}" notice displays the Licensee and Product values from the license key file. Section 4 - Copyright and Trademark Licensee acknowledges that all copyrights in the Software Program and the goodwill associated therewith are vested in and belong to TSI. Section 5 - Maintenance Services 5.1 Scope and Duration TSI Maintenance Services ("TSIMS") are provided on an annual basis for the Software Program. The first year of TSIMS shall be included in the initial fees paid for the license. Successive one (1) year periods of TSIMS, can optionally be ordered for 25% of the then current rate established by TSI for an equivalent Agreement. TSI shall provide Licensee with notice of such renewal, at least thirty (30) days prior to the end of the current TSIMS period. In the event that Licensee allows TSIMS to expire, TSI will allow Licensee to obtain TSIMS for such Licensed Software including any new versions of the Licensed Software upon payment of 125% of all lapsed TSIMS fees. For Licensees who have qualified as a Small Business, this status may be reviewed each time TSIMS is renewed. For Licensees who no longer qualify as a Small Business, this agreement will continue to cover existing Products and Product Groups, but additional Product Group(s) will require their own separate Agreement(s). 5.2 Maintenance Obligations of the Parties Licensee agrees to provide first line support for the Product and Software Program to Licensee customers, which support will include (i) appropriate number of trained personnel available to provide, in a competent manner, first line support of the Software Program to Licensee customers, (ii) log of all communication between Licensee and Licensee customer, as well as a reproducible test case (wherever possible) and any relevant information for any second line support cases that have been opened by Licensee with TSI. Section 6 - Warranty and Limited Liability Software Warranty: TSI warrants that, for a period of ninety (90) days from the initial delivery of the Software Program to Licensee, the Software Program, if used by Licensee in accordance with the Documentation, shall operate in material conformity with the Documentation for such Software Program. TSI does not warrant that the Software Program will meet all of Licensee requirements or that the use of the Software Program will be uninterrupted or error free. TSI's entire liability, and Licensee exclusive remedy, under this limited Software Warranty shall be for TSI (i) to attempt, through reasonable efforts, to correct any reproducible material nonconformity discovered within the ninety (90) day warranty period; or (ii) to replace the nonconforming Software Program with Software Program which conforms to the foregoing warranty. In the event TSI is unable to cure the breach of warranty described in this Section 6, after attempting the remedies described in (i) and (ii) above, Licensee may return the Software Program and TSI shall refund any license and maintenance fees paid by Licensee to TSI for the Software Program provided the refund of maintenance fees shall be limited to the amount representing the period during which the Software Program showed nonconformity. The above remedies are available only if TSI is promptly notified in writing, within the warranty period, upon discovery of the nonconformity by Licensee and TSI's examination of the Software Program discloses that such nonconformity exists, and that the Software Program has not been (i) altered or modified, other than by TSI, (ii) subjected to negligence, or computer or electrical malfunctions, or (iii) used, adjusted, or installed other than in accordance with the Documentation. TSIMS and Other Services Warranty: TSI warrants that any TSIMS or other services performed pursuant to the terms of this Agreement shall be performed in a professional and workmanlike manner consistent with generally accepted industry standards. Disclaimer: THE EXPRESS LIMITED WARRANTIES SET FORTH ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SOFTWARE PROGRAM, AND TSI EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Limitation of Liability: IN NO EVENT SHALL EITHER PARTY'S LIABILITY ARISING OUT OF THIS AGREEMENT OR THE TERMINATION OF THIS AGREEMENT EXCEED THE AMOUNTS PAID OR DUE TO TSI HEREUNDER DURING A FULL YEAR IMMEDIATELY PRECEDING SUCH EVENT. IF SUCH LIABILITY RELATES TO PARTICULAR ITEMS OF SOFTWARE PROGRAM OR SERVICES PROVIDED BY TSI, SUCH LIABILITY SHALL BE LIMITED TO THE FEES PAID FOR THE RELEVANT SOFTWARE PROGRAM OR SERVICES. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING IN ANY WAY OUT OF THIS AGREEMENT UNDER ANY CAUSE OF ACTION, WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO ACTION MAY BE BROUGHT AGAINST TSI LATER THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION OCCURRED. EXCEPT FOR CLAIMS MADE UNDER SECTION 7 (INDEMNIFICATION), IN NO EVENT SHALL TSI BE LIABLE FOR ANY CLAIMS, DEMANDS OR ACTIONS OF ANY NATURE BROUGHT BY ANY THIRD PARTY AGAINST LICENSEE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Warranty Claims: Any claims made by Licensee for the breach of a warranty set forth in this Section 6, shall be made in writing and delivered to TSI by the end of the applicable warranty period, and Licensee shall provide TSI a reproducible test case, if applicable, demonstrating the breach of warranty. Section 7 - Indemnification TSI warrants that the use or distribution of unaltered Software Program(s), or the exercise of the licenses granted hereunder, will not infringe any copyright or patent, or other intellectual property rights of any third party, and TSI has all rights necessary for the grant of the rights and licenses granted by this Agreement. TSI agrees to indemnify, defend and hold Licensee harmless from any and all actions, causes of action, claims, demands, reasonable costs, liabilities, reasonable expenses (including reasonable attorney's fees) and damages (collectively, a "Loss" or "Losses") arising from any claim that the Software Program infringes any copyright or patent, or other intellectual property right of a third party, provided, however: (1) Licensee shall promptly deliver to TSI notice in writing of any infringement claim made by a third party, and, if known, specify in reasonable detail the nature of the claim and the amount, or an estimate of the amount, of the liability arising there from. Licensee shall, at TSI's expense, provide to TSI as promptly as practicable thereafter information and documentation reasonably requested by TSI to support and verify the claim asserted, provided that, in so doing, TSI may restrict or condition any disclosure in the interest of preserving privileges of importance in any foreseeable litigation. (2) TSI may assume and retain sole control of the investigation, the defense or the settlement of any third party infringement claim made against Licensee or TSI with respect to the Software Program, including the employment of counsel or accountants, at its cost and expense. Licensee shall have the right to employ counsel separate from counsel employed by TSI in any such action and to participate therein, but the fees and expenses of such counsel employed by Licensee shall be at Licensee expense. TSI shall have the right to determine and adopt (or, in the case of a proposal by Licensee, to approve) a settlement of such matter in its reasonable discretion. TSI shall not be liable for any settlement of any claim effected without TSI's prior written consent, which shall not be unreasonably withheld. Whether or not TSI chooses to so investigate or defend such claim, Licensee shall reasonably cooperate with TSI in the defense thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested by TSI in connection therewith. (3) If such a claim arises, or in either party's judgment is likely to arise, Licensee agrees to allow TSI, at TSI's option, to either (i) procure the right to permit the continued exercise of the rights and licenses in the Software Program granted under this Agreement; (ii) replace or modify the Software Program so it be-comes non-infringing, while affording equivalent performance; or (iii) terminate the license for the infringing Software Program and upon return thereof by Licensee, refund the unearned portion of any license fees paid by Licensee for the remainder of the current term hereof. (4) TSI shall have no indemnity obligation for claims of infringement resulting from any combination, operation or use of the Software Program, or any components thereof, with any software programs or data not supplied by TSI if such infringement would have been avoided by use of the Software Program alone. Licensee acknowledges and agrees that these four items are the exclusive remedy of Licensee for damages for breach of warranty or representations contained in this Section 7. Section 8 - Termination Should either party commit a material breach of its obligations hereunder, the other party may, at its option, terminate this Agreement by written notice to the party in default. Such notice shall identify and describe the default upon which termination is based. The defaulting party shall have thirty (30) days from the effective delivery of the notice to cure such default, which, if affected, shall prevent termination by virtue of such default. Should an insolvency proceeding be filed by or against either party, the other party may terminate this Agreement forthwith by giving a written notice to the first party. Upon termination of this Agreement, Licensee will either return to TSI or destroy all copies of the Software Program and documentation then in Licensee's possession. Licenses to the Software Program granted in the normal course of business by Licensee to its customers shall survive termination of this Agreement. Licensee shall, within thirty (30) days after the date of such termination, furnish TSI with a certificate of compliance in accordance with this Section. The parties agree that TSI shall have the right to enforce the obligations arising under this Section and to enjoin or compel Licensee through injunctive relief. Licensee may retain a commercially reasonable number of copies of the Software Program and documentation solely for the purpose of supporting Licensee customers who purchased a Product prior to the termination of this Agreement. Section 9 - Export Controls Licensee shall comply with, and ensure that Licensee distributors and resellers comply with, all applicable laws, regulations, rulings and executive orders of Japan or any other relevant jurisdiction relating to the export and re-export of the Software Program or any products containing the Software Program. Licensee shall not directly or indirectly export or re-export any Software Program or any Products containing the Software Program unless Licensee have obtained a license to do so if such a license is required. Licensee further agree that Licensee take appropriate measure to ensure that the Software Program or any Products containing the Software Program will not be exported or re-exported in violation of any applicable laws or regulations of any relevant jurisdiction. Section 10 - Entire Agreement This Agreement, including any attachments, constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements, both oral and written, representations, statements, negotiations and undertakings, with respect to the subject matter hereof, which such agreements, representations, statements, negotiations and undertakings are merged herein. No amendment or modification of this Agreement or any provision or attachment of this Agreement shall be effective unless it is in writing and signed by both parties. Section 11 - Governing Law The validity, construction and performance of this Agreement shall be governed by the substantive laws of Japan (excluding conflicts of law principles). Licensee and TSI agree that any dispute arising out of this Agreement shall be subject to the exclusive jurisdiction of the Tokyo District Court of Japan. If any legal action is undertaken to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and costs in addition to any other relief to which that party may be entitled. Licensee agrees that the United Nations Convention on Contracts for the International Sales of Goods will not apply to this Agreement. Section 12 - Assignment and Benefit Without the consent of the other party in writing, neither party may assign this Agreement; provided, however, TSI or Licensee may assign this Agreement to a wholly-owned subsidiary of the respective corporation or a corporation in which the shareholders of the respective corporation own a majority interest of the voting control provided that the assigning party remains obligated hereunder; further provided, however, TSI or Licensee may assign this Agreement to another corporation which acquires or has acquired substantially all of the stock or assets of the assignor. Where the Licensee had qualified as a Small Business, and the assignee does not, this agreement will continue to cover existing Products and Product Group(s), but additional Product Group(s) will require their own separate Agreement(s). This Agreement shall be binding upon and shall inure to the benefit of Licensee and TSI and each party's successors, subject to the other provisions of this Section. Section 13 - 3rd Party Components (1) The Software Program includes software and documentation components developed in part by Silver Egg Technology, Inc.("SET") prior to 2001 and released under the following license. Copyright (c) 2001 Silver Egg Technology Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sub-license, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software. THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE. Licensor represents and warrants that the Program does not contain any code subject to the GNU General Public License ("GPL"), GNU Lesser GPL, "copyleft" license, or any other license that requires as a condition of use, modification and/or distribution of such code that other software incorporated into, derived from, or distributed with such code be (i) disclosed or distributed in Source Code Program form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge. Section 14 - Confidentiality Confidential Information means all technical, business, financial and other information that is disclosed by either party to the other, whether orally or in writing, and all the terms and conditions of this Agreement, and all non-publicly available information. "Confidential Information" will not include any information (a) that is publicly available through no breach of this Agreement by either party, (b) that is independently developed or was previously known by either party, or (c) that is rightfully acquired by either party from a third party not under an obligation of confidentiality. Except as expressly permitted by this Agreement, both parties shall not, nor shall they permit their respective employees, agents, attorneys or independent contractors to, disclose, use, copy, distribute, sell, license, publish, reproduce or otherwise make available Confidential Information of the other party. Each party will (a) secure and protect the other party's Confidential Information by using the same or greater level of care that it uses to protect its own confidential and proprietary information of like kind, but in no event less than a reasonable degree of care, and (b) advise each of their respective employees, agents, attorneys and independent contractors who have access to such Confidential Information of the terms of this paragraph. Notwithstanding the foregoing, either party may disclose the other party's Confidential Information to the extent required by applicable law or regulation, or by order of a court or other governmental entity, in which case such party shall so notify the other party as soon as practicable. The confidentiality obligation hereunder shall survive termination or expiration of this Agreement. Section 15 - Payments All amounts payable are due net 30 days from the invoice date unless otherwise specified in the invoice. All amounts payable are gross amounts but exclusive only of any value added tax, sales tax or their equivalent. If any such tax is or will be chargeable, the Licensee shall pay the tax to the Licensor and the Licensor shall provide the Licensee with a tax invoice that meets all conditions necessary to allow the Licensee to reclaim such tax. If according to applicable law or regulations the Licensee is liable for any such tax, the Licensee will account for or pay the tax to the tax authorities. Each Party is responsible for all taxes (including, but not limited to, taxes based upon its income) or levies imposed on it under applicable laws, regulations and tax treaties as a result of this agreement. In the event that a withholding tax is payable, and the Licensee is required to deduct the withholding tax from the payment to the Licensor as required under applicable laws, regulations and tax treaties, the Licensee agrees to furnish evidence of such paid taxes to the Licensor as is sufficient to enable the Licensor to obtain any tax credits available to it. Such evidence must be translated into English or Japanese and be provided with the original, unless approved by the Licensor in writing. ---------------------------------------------------------------------- IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective duly authorized representatives. LICENSEE	TSI __________________________ By: ______________________________ Department name Title: ___________________________ __________________________ Date: ____________________________ Licensee's Authorized Signature ___________________________ Typed or Printed Name ___________________________ Title: ___________________________ Date: ___________________________ Street Address ___________________________ City or Town ___________________________ State or Province ___________________________ Zip Code ___________________________ Country ___________________________ ---------------------------------------------------------------------- EXHIBIT 1 Licensed Software: Java Service Wrapper version ____, __________ Edition __ Bit Licensed Operating System and Hardware Platform: All platforms Licensed Software Commercial Restrictions: None Licensed Software Use: Bundle Development / Deployment. Licensed Software Use Location: Bundle Development/Deployment Worldwide Authorized Number of Users: Unlimited Licensee Small Business Status: [ ] Small Business [ X ] N/A Licensee Product Group(s) Covered by this Agreement: FEES: Software License + first year of TSIMS $ TSIMS for year 2 and onward will be priced at 25% of the then current price of a new Software License. [ ] TSIMS for year 2 and later will be automatically invoiced one month prior to TSIMS expiring unless previously notified in writing of a request not to renew. [ X ] TSIMS for year 2 and later will be invoiced on request. Requests made after TSIMS has expired will be at 125% of the regular price. (Services) None ---------------------------------------------------------------------- EXHIBIT 2 End User License Terms / Copyright Notice All End User Licenses shall include provisions that: (1) the End User is granted only a personal, nontransferable, and nonexclusive right to use the software only for personal use of the End User; (2) Licensee and/or its licensors retain all of their intellectual property rights in the software, and no title to such intellectual property is transferred to the End User; (3) the End User agrees not to reverse assemble, decompile, or otherwise attempt to derive source code from the TSI software; (4) Licensee's licensors shall not be liable to the End User for any indirect, consequential, incidental or special damages arising out of the use or license of the software, regardless of the theory of liability (including negligence and strict liability); and (5) Licensee and/or its licensors will have the right to terminate the license at any time in the event the End Users misuses the software; and A section concerning 3rd party components shall be provided, in all End User licenses, which contains at least the following: The Software Program includes software and documentation components developed in part by Silver Egg Technology, Inc.("SET") prior to 2001 and released under the following license. Copyright (c) 2001 Silver Egg Technology Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sub-license, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.  

 ---------------------------------------------------------------------- ----------------- ---------------- Tanuki Software, Ltd. Maintenance Support Services Addendum Version 1.3 Maintenance Support Agreement Number: TSIMS-_____________ This Maintenance Support Services Addendum to the Development Software License Agreement, number TSILA-_______________ ("Agreement") is effective on ______ __, ____. All terms and definitions contained in the Agreement to which this Addendum refers shall apply to the Software Program and services provided hereunder unless superseded by the terms below. 1. DEFINITIONS: The following definitions apply to this Addendum. 1.1 "TSIMS" means the annual, prepaid Maintenance Support services plan provided to Licensee by Tanuki Software, Ltd. ("TSI") which includes email based technical support during business hours (wrapper-support@tanukisoftware.com) for the Software Program version licensed hereunder including any applicable Updates and New Versions. 1.2 "New Version" means a major Software Program release that includes new product functionality and is denoted by a whole new product extension number (i.e., 3.3 to 4.0). New Versions shall include the following deliverables online: - documentation, - installation guide, - authorization codes, - release notes. 1.3 "Site" means a single physical location, a single purchasing contact, and a single Licensee support contact where Software Program is in use. TSIMS must be purchased for all Software Programs at a Site when TSIMS is renewed at that Site. 1.4 "Updates" means all bug fixes, patches, workarounds, and enhancements contained in any of the releases of the Software Program (i.e., 3.3 to 3.4). 2. SERVICES: 2.1 Licensee shall be entitled to the level of service as described in Section 7 herein. 2.2 TSIMS is provided subject to the terms and conditions set forth in this Addendum. TSI has no obligation to provide TSIMS unless; (a) Licensee is in compliance with all terms and conditions of the Agreement, (b) the Software Program is unmodified by Licensee or any third party, and is properly maintained by Licensee at the current or immediately preceding version level, (c) and Licensee provides to TSI technical support personnel the name of its sole point of contact for technical support. Additional support services may be available to Licensee at TSI's current hourly consulting rates. 3.3 Prior to or upon expiration of this Agreement, upon Licensee's request, the parties hereto will negotiate in good faith an ongoing Software Program support plan. 3. TERM AND RENEWALS: 3.1 TSIMS shall commence on (a) the day of the Software Program shipment or (b) the date specified in this Agreement; or (c) as otherwise specified and agreed to in writing by TSI but in no case not later than six (6) months from date of Software Program shipment and will continue for a period of one year from the date established in (a), (b) or (c) above. If no specific TSIMS start is established, then TSIMS will commence on the Software Program shipment date. TSIMS may be renewed for subsequent one (1) year periods subject to then current TSIMS fees and the execution of a new Maintenance Support Services Addendum. 4. CONDITIONS AND DISCLAIMER: 4.1 TSI's obligation to provide TSIMS hereunder shall be limited to the express undertakings described herein and shall not extend to any software or hardware products, (a) owned by any third party (b) furnished, modified, revised or repaired by persons other than employees or agents of TSI, (c) operated under improper or unsafe conditions, (d) transferred without notice to TSI, or (e) any Licensee hardware or expendable supplies. TSIMS shall not include, without limitation, relocation or transfer of the Software Program, or modifications required to adapt products to other hardware or to other software not bearing the TSI trademark and not supplied by TSI, or modifications required to bring any outdated TSI Products to a revision level acceptable to TSI. 4.2 Licensee shall notify TSI promptly of problems requiring support or corrective action by TSI. Licensee shall maintain at its own cost (i) any necessary backup and security of software and any data; and (ii) the overall performance of the Licensee system. 5. ASSIGNMENT: The rights to prepaid TSIMS are assignable by Licensee, upon written notice to TSI, to any successor of Licensee who agrees in writing to be bound by the terms hereof and pays for the services provided. 6. Standard level Maintenance and Support 6.1 Scope of Services TSI will provide the following services to all Licensees: - Answers to Installation and Authorization Questions - Product Use Guidance - Problem Diagnosis - Software Program Configuration Help - Software Program Updates - New Media and documentation - New Versions of the Software Program These services exclude explicitly: - Third-Party Products - Hardware Platform Related Support - Operating System Related Support - Integration Advice or Any Other Consulting - Training. TSI maintains training and consulting departments that can assist, on a fee-for-service basis, with some or all of the services explicitly excluded as above. 6.2 Limitation TSI supports the Software Program as described in the then-current price book for which an annual TSIMS fee is paid. However, TSI will fix errors in the current version and the immediately preceding version of the Software Program. The Licensee will provide TSI with all the necessary information on the application, the platform, and the infrastructure at the supported Site. If any of such information is confidential, the Licensee should notify TSI in accordance with the confidentiality provision of the License Agreement. 6.3 Levels of Support 1st Level (or First Line Support) Support includes filing the problem as an issue in TSI's database, querying the TSI database for similar problems, bugs, and resolutions on the topic and communicating a resolution or plan for a resolution back to the Licensee. 2nd Level Support includes further research on the issue and includes, but is not limited to: recreating the problem in house, receiving and working with pieces of Licensee's code that illustrate the behavior; debugging Licensee's code and working to resolve the issue. 2nd Level Support issues are typically assigned to a TSI Product Specialist. 3rd Level Support includes but is not limited to the assistance of Product Support Specialists and Engineering Level Developers to assist in debugging code, providing hints to solve the problem, working with TSI product code to determine root causes. When the Licensee acquires TSI products through a TSI Partner, it is expected that the main support channel will be established through that Partner. In that case, 1st level support will be handled by that Partner, and TSI will communicate solely with the Partner on Licensee's issues. 6.4 Priority of an Issue The Licensee and TSI customer support staff shall jointly set issue priority levels. SEVERITY LEVEL 0 - CRISIS - An emergency deployment or production environment situation where the Software Program is inoperable or fails catastrophically and there is no workaround. SEVERITY LEVEL 1 - HIGH - A detrimental situation where one of the following conditions occurs: 1.) performance of the Software Program degrades substantially under reasonable loads causing a severe impact on use; or 2.) one or more primary functions or commands of the Software Program is inoperable. SEVERITY LEVEL 2 - MEDIUM - Occurs when use of the Software Program is noticeably affected but reasonably correctable by a workaround, documentation change, or patch which may be completely resolved and integrated into a future release. SEVERITY LEVEL 3 - LOW - An inconvenient situation where the Software Program is usable but does not provide a function in the most convenient manner and the Licensee suffers little or no significant impact. 6.5 Licensee Assistance and Responsibility in Problem Resolution When filing an issue, Licensee shall make the following information available to TSI: - Maintenance Support Agreement Number - Version (including revision level) of the TSI Software Program involved and any supporting product of software involved - Platform (Including Operating System Revision Level) of the Operating Environment - Error or other warning or advisory messages which you have been receiving - A reproducible test case where applicable - Any trace, log, and/or console files - Configuration files - Severity Level of problem - Priority Business or other justification for Severity Level 0 priority issues - Licensee responsibility with regard to assisting in resolving the Licensee issue includes providing a Licensee on-site technical contact, whose availability and response should mirror the response level requested of TSI, to provide resource and operational assistance. 6.6 Response/Resolution Time Within the business hours of the Customer Support Engineer responsible for the issue: Response Time: For the most prompt service, relevant technical detail and quickest response time, (generally less than 1 day) issues should be reported via email at wrapper-support@tanukisoftware.com. Response to issues reported to Customer Support through fax, or telephone may have longer response times. Initial Analysis/Resolution Time: Crisis Handled on a Case by Case Basis, but initial response will be within 1 Business Day High Within 5 Business Days Medium Within 10 Business Days Low Subject to Development and Customer Support Priority Resolution means that Customer Support will use its reasonable efforts to resolve Licensee issues as prioritized above. Resolution may include: specification of a workaround; identification of a bug; or the recognition that additional analysis work needs to be done, on the part of Customer Support and the Licensee, which will extend beyond the initial resolution time. In all cases, resolution of issues by Customer Support will require the Licensee to assist in the following: documentation and reproduction of the issue; provision of a Licensee contact person with whom TSI Customer Support can maintain contact to arrange for analysis, testing, systems, and other resources and other tasks in support of resolution of the Licensee's problem and to whom status reports and requests for resources can be addressed. Ongoing communication shall be maintained regarding Licensee issue status and progress towards resolution between TSI Customer Support and the Licensee's issue contact. 6.7 Notification The Licensee will, by default, be notified by e-mail of all relevant updates on the issue since appropriate levels of technical detail are often best captured and presented via written e-mail. TSI's Support staff can also maintain telephone contact with the Licensee, if requested. 6.8 Distribution of Updates Shipment of Updates and New Versions will be made on a request-only basis. Requests can be made through an e-mail message. 6.9 Licensee Issues Are Typically Handled by Customer Support Engineers This is the primary and usual scenario. Contact is maintained between the Licensee and the TSI Customer Support Engineer ("CSE") responsible for the issue. The e-mail address to be used is: wrapper-support@tanukisoftware.com