Orion Application Server License Agreement

IronFlare AB ("IronFlare") grants the Licensee (the "Licensee") a non-exclusive
and non-transferable License (as hereinafter defined) for the software Orion
Application Server (the "Software"), including Documentation (as hereinafter
defined). The License permits the Licensee to Use (as hereinafter defined) the
Software on a single computer system, (the "System") for use only upon the
terms and subject to the conditions contained herein.

1 Definitions

1.1 "Confidential Information" means this Agreement, all Software listings,
Documentation, information, data drawings, benchmark tests, specifications,
trade secrets, object code and machine-readable copies of the Software, source
code relating to the software, and any other proprietary information supplied
to Licensee by IronFlare. 

1.2 "Documentation" means all online help files or written instructions
regarding the use of the Software. 


1.3 "Use" means utilisation of the Software by loading, transmitting or copying
the same into temporary (e.g. RAM) or permanent memory (e.g. hard disk, CD-ROM
or other storage device) of the System for the processing of the Software. 


2. License

2.1 IronFlare hereby grants the Licensee a non-exclusive, non-transferable and
non-assignable right to Use the Software on one (1) System and use the
Documentation in connection with Use of the Software (the "License"). 

2.2 The validity of the License is conditional on payment by the Licensee of a
license fee for the Software in accordance with this Agreement. The Software
is NOT free or shareware. 


2.3 Copies of the Software made in accordance with this Agreement, are covered
by the provisions of this Agreement. 


3. License Restrictions

 

3.1 Licensee agrees that it will itself, or through any parent, subsidiary,
affiliate, agent or other third party: 


3.1.1 not sell, lease, rent, loan, license, sublicense, redistribute, encumber
or otherwise deal with any portion of the Software or Documentation or
otherwise permit anyone other than the Licensee either directly or indirectly,
for payment or otherwise, to make use of or otherwise dispose of the Software
or the Documentation; the making of copies of the Software or the
Documentation for private use is therefore prohibited; 


3.1.2 not decompile, disassemble, or reverse engineer binary portions of the
Software or otherwise attempt to derive the source code from such portions,
unless and to the extent required under national law; 


3.1.3 not create any derivative software or any other software program from the
Software or based on the Confidential Information provided by IronFlare; 


3.1.4 not use the Software to provide processing services to third parties,
commercial timesharing, rental or sharing arrangements, or on a "service
bureau" basis; 


3.1.5 not provide, disclose, divulge or make available to, or permit use of the
Software, the Documentation or the Confidential Information by persons other
than Licensee's employees; 


3.1.6 maintain accurate and up-to-date records of the number and location of
all copies of the Software; 


3.1.7 supervise and control that use of the Software and the fulfillment of the
Licensee's other obligations is made in accordance with the terms of this
Agreement. 


4. License Fee

 

4.1 In consideration of the rights granted herein, the Licensee shall pay
IronFlare the license fee indicated on the Internet site as the Licensee
downloaded the Software or any other site that IronFlare informs the Licensee
of (the "the License Fee") before the first Use of the Software by the
Licensee. In the event of overdue payment, IronFlare reserves the right to
charge interest on the amount due at the rate of two per cent per month until
the date of payment. 


4.2 If the License is prolonged for another one-year-period according to clause
6.1 below, the Licensee shall pay to IronFlare the License Fee or, if
applicable, the adjusted License Fee that IronFlare has informed the Licensee
of. 


4.3 The Licensee shall reimburse IronFlare for all sales, use or other taxes,
fees or duties not based on income, arising out of this Agreement. 


4.4 Payments to IronFlare according to this Agreement shall be made in
accordance with IronFlare's instructions on the Internet site as the Licensee
downloaded the Software or any other site that IronFlare informs the Licensee
of. 


5. Upgrades

 

5.1 Upon payment to IronFlare of the License Fee, the Licensee shall be
entitled to receive new versions of the Software during the term of this
Agreement ("Upgrades"). Upgrades form a part of the Software and this
Agreement shall apply to such Upgrades. 


5.2 Upgrades will be made available at the same Internet site as the Licensee
downloaded the Software or any other site that IronFlare informs the Licensee
of. 


5.3 The Licensee may make queries or report errors to IronFlare by means of
Electronic Mail. IronFlare is under no obligation to support the Software or
to make error corrections. 


6. Term and Termination

 

6.1 This Agreement shall become effective on the first date on which the
Licensee Uses the Software (the "Effective Date") and will expire one (1) year
from the Effective Date ("the Expiry Date"), unless terminated earlier as
provided in this Agreement. This Agreement will be automatically prolonged for
an additional one-year-period from the Expiry Date if the Licensee not later
than on the Expiry Date pays to IronFlare the Licensee Fee as stated in clause
4.2 above for the following one-year-period. 


6.2 Notwithstanding any provisions contained herein, this Agreement may be
terminated with immediate effect by IronFlare upon written notification, if
Licensee substantially fails to fulfill the Licensee's obligations according
to this Agreement. 


6.3 The Licensee may terminate this License at any time by destroying the
Software, Documentation and all copies thereof. 


6.4 Upon termination, the Licensee shall (i) immediately return to IronFlare
all Confidential Information and (ii) pay to IronFlare any and all amounts
outstanding under this Agreement. 


6.5 The termination of this Agreement shall be without prejudice to the rights
of the parties accrued up to the date of such expiry or termination. The
Licensee shall not be entitled to any refund of fees and other sums paid to
IronFlare. 


6.6 Clauses 7, 13 and 14 shall survive termination of this Agreement. 


7. Intellectual Property Rights

 

7.1 The Licensee acknowledges that any and all trademarks, copyrights, patents
and other intellectual property rights, owned by IronFlare, used or embodied
in or connected with the Software and the Documentation, shall be and remain
the exclusive property of IronFlare. 


7.2 This License does not entail the transfer to the Licensee of IronFlare's
rights in the form of, among other things, copyright or, where appropriate,
patent rights or any other intellectual property rights to the Software or the
Documentation. The License does not include a special patent license, and the
Licensee may not, therefore, make use of any actual patent. 


8. Warranty and Limitation of Liability

 

8.1 THE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND, EITHER
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. 


8.2 IronFlare DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR- FREE(INCLUDING,
WITHOUT LIMITATION; FREE FROM VIRUS ETC.) OR THAT SUCH ERRORS WILL BE
CORRECTED, AND THE LICENSEE IS SOLELY RESPONSIBLE FOR ALL COSTS AND EXPENSES
ASSOCIATED WITH RECTIFICATION,LOSS OF DATA, REPAIR OR DAMAGE CAUSED BY SUCH
ERRORS. 


8.3 IronFlare SHALL NOT BE LIABLE TO THE LICENSEE OR TO ANY OTHER PARTY FOR ANY
LOSS OR DAMAGE WHATSOEVER OR HOWSOEVER CAUSED ARISING DIRECTLY OR INDIRECTLY
IN CONNECTION WITH THIS LICENSE, THE SOFTWARE, ITS USE OR OTHERWISE, EXCEPT TO
THE EXTENT THAT SUCH LIABILITY MAY NOT BE LAWFULLY EXCLUDED UNDER THE
APPLICABLE LAW. 


8.4 NOTWITHSTANDING THE GENERALITY OF CLAUSE 8.3 ABOVE, IronFlare EXPRESSLY
EXCLUDES LIABILITY FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR
DAMAGE WHICH MAY ARISE IN RESPECT OF THE SOFTWARE HOWSOEVER CAUSED EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 


8.5 IN THE EVENT IronFlare INCURS ANY LIABILITY WHATSOEVER, SUCH LIABILITY IS
LIMITED TO THE LICENSE FEE PAID BY THE LICENSEE FOR THE SOFTWARE (EXCEPT FOR
DEATH OR PERSONAL INJURY ARISING FROM IronFlare'S NEGLIGENCE). 


9. The Licensee's Liability

 

The Licensee agrees to indemnify IronFlare and hold IronFlare harmless against
and from any claim, proceeding, loss, liability, fine, cost and expense
(including court costs and reasonable fees for attorneys and other
professionals) incurred as a result of (i) the Licensee failing to fulfill the
Licensee's obligations or breaching the terms of this Agreement when using the
Software, (ii) any failure of the Licensee to pay for, or to have all
necessary rights, approvals and licenses required should the Software be
interfaced with third party software and/or hardware, and (iii) any use or
combination of the Software or any part thereof with any other programs or
materials if such use or combination infringes any intellectual property
rights of third parties. 


10. Severability

 

In the event that any terms, conditions or provisions contained in this
Agreement or any part thereof are found to be invalid, unlawful or
unenforceable to any extent, the parties shall endeavour to agree such
amendments, which shall in as far as possible effect the intentions expressed
therein. In default of such agreement, such invalid term, condition or
provision shall be severed from the remaining terms, conditions and
provisions, which shall continue to be valid and enforceable to the fullest
extent permitted by law. 


11. Assignment

 

Neither this Agreement nor any rights granted by virtue of it, or resulting
from it, may be assigned by the Licensee to others without IronFlare's prior
written consent. 


12. Benchmarks

 

The Licensee may publish results of any benchmark or comparison tests run on
the Software, only if IronFlare is sent a copy of such results, as well as the
actual classfiles or any other files used, or information needed, to perform
the benchmarks or tests. Such results shall include information about the
hardware used to run the benchmarks or tests. 


13. Confidential Information

 

13.1 The Licensee shall treat all proprietary and/or Confidential Information
as strictly confidential. The Licensee hereby agrees that all terms and
conditions of this Agreement shall be treated as confidential and shall not be
disclosed to others without IronFlare's prior written consent. This
confidentiality undertaking shall not apply to any part of the proprietary
and/or Confidential Information of which the Licensee can prove (i) was known
to it prior to being furnished to it hereunder (as evidenced by written record
predating such disclosure), (ii) was or became public knowledge through no
fault or breach of the terms of this Agreement by the Licensee, (iii) was
received by the Licensee from a third party in good faith and not in breach of
any agreement, or (iv) was independently acquired by the Licensee as a result
of work carried out by an employee of the Licensee to whom no disclosure of
this proprietary and/or Confidential Information was made. 


13.2 The Licensee approves IronFlare, when marketing the Software, giving
public the fact that the Licensee is a user. 


14. Force Majeure

 

Neither the Licensee nor IronFlare shall be liable for breach of any of the
provisions of this Agreement in case of force majeure. Force majeure shall
include, but shall not be limited to, inability to supply the Software,
material breakdown of its equipment, labour disputes of whatever nature or
cause, and any other circumstances reasonably beyond the control of the party
claiming that this provision shall apply. 


15. Applicable law and arbitration

 

15.1 This Agreement shall be construed under and governed by the laws of
Sweden. 


15.2 Any dispute concerning the interpretation and/or application of this
Agreement shall be settled by arbitration under the Rules of the Stockholm
Chamber of Commerce. Arbitration proceedings shall be held in Stockholm,
Sweden. The proceedings shall be conducted in the English language. 


15.3 Notwithstanding the provision in clause 15.2, IronFlare may, in its sole
choice and discretion, institute proceedings concerning the recovery of any
fees and rates unpaid under this Agreement in any court having jurisdiction
over the Licensee and also in the District Court of Stockholm, the
jurisdiction of which the Licensee hereby expressly and irrevocably submits
to. 