Software License and Support Terms

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1 Software License and Support Terms IMPORTANT! UPON DOWNLOADING OF THE SOFTWARE, USE OF THE SOFTWARE IS SUBJECT TO THE ComTrade SOFTWARE LICENSE AND SUPPORT TERMS AND CONDITIONS ( TERMS ) SET FORTH BELOW. USING THE SOFTWARE INDICATES THAT YOU ARE AUTHORIZED TO ACCEPT THESE TERMS ("LICENSEE") AND THAT YOU AGREE WITH THESE TERMS. 1. DEFINITIONS 1.1. "Software" means the latest version of HP BSM Integration for BMC Impact Manager by ComTrade in binary format, including any Updates that ComTrade may provide during the License period. 1.2.»License Agreement«or Agreement shall mean the agreement with accompanying documentation, concluded between ComTrade and Licensee specifying the Software and Services provided to the Licensee under these terms for the License Period Device means a dedicated server or other controller, processor or hardware product on which Software is running "Documentation" means such manuals and other standard end user and technical documentation that ComTrade ordinarily makes available with Software, including amendments and revisions thereto "Software License" means the right to use the Software granted to Licensee according to the Section 2 of these Terms "License Period" means the period for which the right for Use has been granted and which is stated in the License Agreement "Use" means the use of Software for presentation and demonstration purposes only. All other rights are reserved unless otherwise specified in these Terms or License Agreement. This means that copying, modifications, distribution, renting, leasing, publicly displaying or any other way of use is not allowed "Updates" means changes, errors and defect corrections, patches and minor enhancements of Software with respect to the functionality or performance of the Software, which ComTrade makes generally available from time to time as part of Support Services. Updates shall not include Upgrades "Upgrades" means the changes to Software, which ComTrade makes generally available from time to time and which contain substantial and significant Updates, or other substantial changes in functionality or performance as compared to the previous version (if any), and which is designated by ComTrade by a number on the left of the decimal point (e.g. Version 1

2 X.0). Upgrades are treated as a new version of the Software and shall be separately priced 2. LICENSE 2.1. GRANT OF LICENSE ComTrade grants Licensee a non-exclusive and non-transferable license to Use the version of the Software listed in the License Agreement in accordance with these Terms. ComTrade grants Licensee a license to use one copy of the Software on one Device during the License Period GENERAL LICENSE TERMS Licensee may not reproduce, modify, distribute or use the Software in any other way not granted under this Software License or License terms defined under the License Agreement Licensee must reproduce all copyright notices in or on the original Software on all permitted copies. Licensee may not copy the Software onto any public or distributed network Updates or other minor enhancements are available during the License Period as a part of Support The Software is owned and copyrighted by ComTrade. Licensee has no rights in the Software except as explicitly stated in these Terms. These Terms confer no title or ownership and are not a sale of any rights in the Software or the media on which they are recorded or printed. Third party suppliers may protect their rights in the Software in the event of any infringement Licensee shall not disclose to third parties, transfer, disassemble, decompile or reverse engineer the Software without ComTrade's prior written consent and/or if allowed by the applicable law. Where Licensee has other rights under statute, Licensee will provide ComTrade with reasonably detailed information regarding any intended disassembly or decompilation ComTrade may terminate this Software License without notice at any time with immediate effect Licensee assumes all responsibility for complying with applicable export and import laws and regulations and for obtaining required authorizations. ComTrade may suspend performance if Licensee is in violation of any applicable laws and/or regulations. 2

3 3. SUPPORT 3.1. Software Technical Support ComTrade shall provide assistance in the English language, by , in the mode 5x8, 9AM-5PM CET, Slovene business days, during the License period All additional assistance provided by ComTrade to Licensee, including, but not limited to, training, custom programming, data conversion and consulting shall be charged at ComTrade's then-current standard consulting rates ComTrade shall use its efforts to remedy any reproducible Error (as defined below) in the Software reported in writing by Licensee "Error" shall mean a material failure of the Software to conform to its functional specifications as described in the applicable Documentation, which failure is demonstrable in the environment for which the Software was designed and causes it to be inoperable, to operate improperly in the environment for which it was designed, or produces results different from those described in the applicable Documentation. Failure resulting from Licensee's negligence or improper use of the Software, modifications or damages to the Software by Licensee, and Licensee's use of the Software on a platform or with an operating system other than the designated platform in the Documentation or in combination with any third party software not envisaged by ComTrade, are not considered Errors except as reasonably contemplated by the parties Licensee Obligations. In addition to providing ComTrade with full, good faith cooperation and such information as may be required by ComTrade in order to perform the Support Services, Licensee shall provide ComTrade with (i) specific detailed information concerning Licensee's use of the Software as may be required for the performance of the Support Services and (ii) all necessary computer services information and access to key personnel needed to provide the Support Services. If Licensee fails or delays in its performance of any of the foregoing responsibilities, ComTrade shall be relieved of its obligations hereunder to the extent such obligations are dependent upon such performance License Grant. In the event any work product or code is created as part of Support Services, such work product or code shall be included within Software and licensed to Licensee under these Terms, and ComTrade shall retain exclusively all right, title and interest in and to such work product or code and any derivatives, enhancements or modifications to the Software created by ComTrade or Licensee Exclusions. ComTrade is not required to provide any Support Services relating to problems arising out of (i) equipment, on which the Software is installed, that is not configured as specified in the Documentation or as otherwise specified by ComTrade; (ii) changes to the operating system or environment which adversely affect the Software; (iii) use of the Software in a manner not specified in the Documentation unless reasonably contemplated by the parties; (iv) the version of the Software that is not Supported; (v) accident, negligence, or misuse of the Software; or (vi) modifications to the Software done by Licensee and/or any third party other 3

4 than ComTrade unless such modifications were reasonably contemplated by the parties Termination. ComTrade may, without previous notice, terminate support at any time. 4. WARRANTY. COMTRADE WILL UNDERTAKE ALL COMMERCIALLY REASONABLE EFFORTS TO PROVIDE SOFTWARE AND SUPPORT SERVICES UNDER THESE TERMS AND TO RECTIFY OR PROVIDE SOLUTIONS TO PROBLEMS WHERE THE SOFTWARE DOES NOT FUNCTION AS DESCRIBED IN THE DOCUMENTATION, BUT COMTRADE DOES NOT GUARANTEE THAT THE PROBLEMS WILL BE SOLVED OR THAT ANY ITEM WILL BE ERROR FREE. THESE TERMS IS ONLY APPLICABLE TO SOFTWARE RUNNING UNDER THE CERTIFIED ENVIRONMENTS SPECIFIED IN THE RELEASE NOTES AND OTHER DOCUMENTATION FOR THAT SOFTWARE. COMTRADE WILL PROVIDE THE LICENSEE WITH SUBSTANTIALLY THE SAME LEVEL OF SERVICES THROUGHOUT THE TERM. COMTRADE MAY FROM TIME TO TIME, HOWEVER, DISCONTINUE SOFTWARE OR VERSIONS OF SOFTWARE AND STOP SUPPORTING SOFTWARE OR VERSIONS OF SOFTWARE ONE YEAR AFTER DISCONTINUANCE, OR OTHERWISE DISCONTINUE ANY SUPPORT SERVICES. THE FOLLOWING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS OR PROMISES TO LICENSEE OR ANY THIRD PARTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING BY STATUE, LAW, COURSE OF DEALING, CUSTOM AND PRACTICE OR TRADE USAGE. EXCEPT AS PROVIDED ABOVE, THE SOFTWARE AND SUPPORT SERVICES ARE PROVIDED "AS IS". 5. TERM AND TERMINATION. These Terms shall start to apply on the day of downloading the Software (hereafter referred to as the Effective Date). The Software License is temporary, and shall be valid until the end of License Period unless terminated with immediate effect as stated in Article 2.3. of these Terms. These Terms related to Support Services shall run for a period as defined in License Agreement. Parties may replace these Terms prior to the end of the License period with new License Terms pursuant to the new License Agreement. 6. PAYMENTS All payments, if applicable, shall be levied in advance unless differently specified in the License Agreement. 7. GENERAL PROVISIONS 7.1. Licensee may not assign or sub-license any rights or obligations hereunder to any person or entity, in whole or in part, without prior written consent of ComTrade COMTRADE SHALL NOT BE LIABLE FOR ANY INJURY, LOSS OR DAMAGE WHETHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL ARISING OUT OF ANY CAUSE WHATSOEVER (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF DATA OR COMPUTER PROGRAMS, INCLUDING THE COST OF RECOVERING SUCH DATA OR COMPUTER PROGRAMS OR ANY OTHER BUSINESS OR PROPERTY DAMAGE), EVEN IF FORESEEABLE OR IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE ANY LIABILITY OF COMTRADE SHALL BE LIMITED IN THE AGGREGATE TO THE AMOUNTS PAID 4

5 BY LICENSEE FOR THE SOFTWARE. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND/ OR ANY OTHER TORTS Times by which ComTrade will perform under these Terms shall be postponed automatically to the extent that ComTrade is prevented from meeting them by causes beyond reasonable control Licensee acknowledges that it has read these Terms, that it understands the Terms and agrees to be bound by them. Furthermore, the parties agree that this is the complete and exclusive statement of the Terms between the parties, which supersedes any and all previous communications, representations or agreements between the parties, whether oral or written, regarding the subject of these Terms. Licensee's additional or different terms and conditions will not apply These Terms may not be modified or altered If any provision of these Terms is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of these Terms, unless ComTrade deems the unenforceable provision to be essential to these Terms, in which case ComTrade may terminate these Terms, effective immediately upon notice to Licensee These Terms and performance hereunder shall be governed in accordance with the Slovenian law without reference to its conflicts of law provisions No action, regardless of form, arising out of these Terms may be brought by Licensee more than one (1) year after the cause of action has arisen These Terms shall be binding on any legal successors, transferees and assignees. In such cases Licensee or its successors, transferees or assignees must notify ComTrade of such changes immediately. 5

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