Tortuga Technologies Software License Agreement ----------------------------------------------- 1. Definitions 1a. "Tortuga Technologies" is Tortuga Technologies Pty Ltd, ACN 058 735 701 2a. "Software" means the Ozibug Evaluation or Enterprise Edition Product. 2. License grants and limitations 2a. Evaluation Edition The terms of this section (2a) are applicable to you if you have downloaded the Ozibug Evaluation Edition product. Subject to the terms of this Agreement, Tortuga Technologies grants to you a non-exclusive, non-transferable, license to use a single instance of the software for any number of users within a single Web Container (or Servlet Container) on a single server. Note that additional instances require additional licensing. All rights not specifically granted to you herein are retained by Tortuga Technologies. 2b. Enterprise Edition The terms of this section (2b) are applicable to you if you have downloaded the Ozibug Enterprise Edition product. Subject to the terms of this Agreement, Tortuga Technologies grants to you a non-exclusive, non-transferable, fee-bearing license to use a single instance of the software for any number of users within a single Web Container (or Servlet Container) on a single server. Note that additional instances require additional licensing. All rights not specifically granted to you herein are retained by Tortuga Technologies. 2c. Site License The terms of this section (2c) are applicable to you if you have downloaded the Ozibug Site Enterprise Edition product. Subject to the terms of this Agreement, Tortuga Technologies grants to you a non-exclusive, non-transferable, fee-bearing license to use multiple instances of the software for any number of users within multiple Web Containers (or Servlet Containers) and/or on multiple servers within the domain of your company. All rights not specifically granted to you herein are retained by Tortuga Technologies. 2d. Restrictions Regardless of edition type and license, you may not reverse engineer, decompile, disassemble or otherwise attempt to determine source code or protocols from the software or disclose the results of software performance benchmarks to any third party without Tortuga Technologies's prior written consent. 2e. Ownership Rights You may modify the Software in accordance with the Documentation solely to allow for interoperability with your existing corporate systems. Such modifications shall not be derivative works, nor shall you create or attempt to create any derivative works from the Software. Title, ownership rights and all intellectual property rights in and to the Software shall remain the sole and exclusive property of Tortuga Technologies. 2f. Copies You may make a reasonable number of copies of the Software and documentation (provided that all copyright and other proprietary notices of Tortuga Technologies are reproduced), solely for archival purposes. If you do copy for this purpose, you will preserve any proprietary rights notices on the Software and place such notices on any and all copies you made or make. 3. Payment and other obligations 3a. License and support fees Will be paid immediately by credit card through Tortuga Technologies ecommerce site. 3b. Support obligations Tortuga Technologies will provide support as described below in consideration of support payment. 3bi. Support by email - problems must be reproducable and be supported with necessary documentation such as log files, version numbers, etc. 3bii. Upgrades and new releases. 4. Proprietary rights Except as expressly provided for in section 2 of this agreement, Tortuga Technologies retains any and all rights, title and interest in and to the Software. This agreement grants no additional express or implied license, right or interest in any copyright, patent, trade secret, trademark, invention or other intellectual property right of Tortuga Technologies. You receive no rights to and will not sell, assign, lease, market, transfer, encumber or suffer to exist any lien on the Software, nor will you take any action that would cause any of the Software to be placed in the public domain. 5. Indemnification 5a. Obligations Tortuga Technologies will defend, indemnify and hold harmless against any claim that the use of the Software under the terms of this Agreement infringes any copyright, patent, trademark or other similar intellectual property right of any third party. In the event that the Software is held or is believed by Tortuga Technologies to infringe, Tortuga Technologies shall have the option, at its expense, to: 5ai. modify the Software to be non-infringing; 5aii. obtain a license to continue using the Software, 5aiii. or terminate this agreement as to the infringing Software and refund all fees paid. The foregoing states Tortuga Technologies entire liability and your exclusive remedies for infringement of intellectual property rights of any kind. 5b. Conditions of Indemnity The foregoing indemnity is conditioned on prompt written notice of any claim, action or demand for which indemnity is claimed; complete control of the defense and settlement thereof by Tortuga Technologies and cooperation of you in such defense. 6. Warranty 6a. Tortuga Technologies warrants for 90 days from date of shipment, that the Software will be free from defects in materials and workmanship and that the Software will operate in substantial accordance with its accompanying documentation on the platforms and Web Containers specified at the following URL. http://www.tortuga.com.au/products/ozibug/www/platforms.html 6b. If Tortuga Technologies breaches the foregoing warranty and you promptly notify Tortuga Technologies in writing of the nature of the breach, Tortuga Technologies shall make commercially reasonable efforts to promptly repair or replace the non-conforming Software, without charge. If, after a reasonable opportunity to cure, Tortuga Technologies does not repair or replace the non-conforming Software, you must return the Software and the Documentation or certify in writing that all copies have been destroyed, and Tortuga Technologies will refund the fees it received for the Software to you. This is your sole and exclusive remedy for breach of the exclusive warranty set forth in section 6a above. 6c. Except as forth in section 6a above, the Software and the accompanying written materials are provided "as is" without express or implied warranty of any kind. Tortuga Technologies further disclaims all implied warranties, including without limitation any implied warranties of merchantability or fitness for a particular purpose. Tortuga Technologies does not warrant that the Software will be error free or will operate without interruption. The entire risk arising out of the use or performance of the Software and accompanying written materials remains with you. 6d. The Software is not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, and life support or weapons systems. Without limiting the generality of the foregoing, Tortuga Technologies specifically disclaims any express or implied warranty of fitness for such purposes. 6e. Tortuga Technologies warrants to you that it has all necessary rights, power and authority to enter into this agreement and to grant the rights granted under this Agreement. 7. Limitation of liability Except in a case of a violation under article 5 indemnification, Tortuga Technologies shall not be liable for any direct, indirect, incidental, special, punitive or consequential damages under any theory of liability whether in tort, contract, strict liability or otherwise even if advised of the possibility of such damages. 8. Term The term of the agreement begins upon generating the license and ends on the expiry date specified in the license that is emailed to you. 9. General 9a. Governing law, complete agreement; modifications This agreement is governed by the laws of the State of Queensland, Australia, and all parties further consent to jurisdiction by courts sitting in the State of Queensland. This Agreement is the complete agreement between all parties regarding the Software and supersedes any prior agreements between parties relating to the subject matter hereof. This agreement will not be modified except by a properly executed written agreement. Any terms and conditions of any purchase order or other instrument issued by you in connection with this agreement which are in addition to, inconsistent with or different from the terms and conditions of this agreement will be of no force or effect. 9b. Excusable delays Neither party will be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency and shortage of materials.