Allaire Corporation Non-Commercial Software Distribution License Agreement Terms and Conditions Copyright ©2000 Allaire Corporation All Rights Reserved Important Notice This Agreement grants you the non-exclusive right to reproduce exact object code copies of and distribute the following Allaire software programs - HomeSite Evaluation version, ColdFusion Server Evaluation Version, ColdFusion Studio Evaluation Version, ColdFusion Express, and JRun (collectively, the "non-commercial distributables" or "NCDs"), but only in accordance with all of the terms and conditions of this Agreement. You should carefully read the following terms and conditions before making any copies of the NCDs. Unless and except to the extent you have entered into a separate written agreement with Allaire expressly providing otherwise, copying or distributing any copy of the NCDs indicates your agreement to be bound by these terms and conditions. Allaire will provide you with one (1) master library copy of the NCDs on such standard media as Allaire may determine in Allaire's sole discretion or, alternatively, a URL from which you may download the NCDs. Media provided by Allaire may contain copies of software to which you do not have a license under this Agreement. You will have no rights or license to such copies, except as otherwise expressly permitted by this Agreement or another valid license agreement. Any additional or inconsistent terms of any purchase order or other document issued by you under this Agreement will be null and void, even if such a purchase order or document is accepted or signed by Allaire. License to Copy and Redistribute NCDs Upon acceptance of this Agreement and subject to the terms and conditions of this Agreement, Allaire grants to you a worldwide, non-exclusive, non-transferable license to distribute exact object code copies of the NCDs (including distribution of the NCDs as single file downloads from an Internet based server or an Intranet based server within your organization) and to make such exact object code copies of the NCDs as are necessary in the performance of this Agreement the rights granted hereunder are subject to the terms and conditions of this Agreement, including without limitation, the following conditions and limitations: (1) If you distribute the NCDs with other products, the NCDs must be distributed as a stand alone non-commercial product and in all packaging and promotional materials, you shall distinguish the NCD as separate and distinct from any other software or other product with which it is distributed. If any of the NCDs is distributed with non-Allaire software or hardware products intended to be used with the NCDs, then prior to distribution of the NCD, you shall adequately and extensively test to ensure that the NCDs perform satisfactorily with such product(s). (2) You are specifically prohibited, without Allaire's prior written permission, which may be withheld in Allaire's sole discretion, from charging, or requesting any fee, however made, for any copies you make or distribute. (3) The terms and conditions of Allaire's end-user license agreement ("EULA") incorporated by Allaire in the installation routine for the NCDs shall serve as the only documentation distributed by you defining each user's rights and obligations with respect to the NCDs. You agree that installation and use of any copies of the NCDs distributed by you shall require a specific affirmative act of acceptance of the EULA by opening a package or clicking a button to initiate installation only after an opportunity to review the EULA. You are not authorized to copy, market or distribute (or to authorize others to do so) in any other manner without Allaire's express written consent which may be withheld in Allaire's sole discretion. This Agreement does not grant you any right to, and you shall not make and/or distribute or license variations or works derived from the NCDs, or utilize the NCDs or information relating to it. You shall not appoint subdistributors. You have no authority to act on behalf of Allaire and no authority to bind Allaire by any promise or representation. You agree that you are solely responsible for all expenses incurred in connection with copying and distributing the NCDs. Although you will not be liable to Allaire for any user's failure to comply with the EULA Terms, you agree to report to Allaire any known or suspected violation(s) of the EULA Terms and to reasonably cooperate with Allaire in any enforcement actions taken by Allaire. Use of Allaire's Trademarks; Marketing Activities You acknowledge that the word "Allaire" the Allaire "A" logo, the "allaire" tag logo, the term "ColdFusion," the ColdFusion "hand clutching lightning bolt" logo, the word "HomeSite" and the HomeSite "hand holding the world" logo, the word "JRun" and the "running man with coffee cup" logo, and any and all other marks and associated logos used by Allaire with the NCDs (the "Allaire Marks") are trademarks of Allaire. Allaire hereby grants to you a non-exclusive, non-transferable, limited right to use the Allaire Marks associated with the Allaire product solely in connection with your distribution of the NCDs and only in accordance with this Agreement and Allaire's then current Trademark Usage Guidelines identified by Allaire from time to time. You agree to always use on each NCD distributed, and Allaire requests that you use on all containers and storage media therefore, the Allaire Marks associated with the NCD, or requested by Allaire to be included with the NCD or containers. You shall not use (or permit to be used) the Allaire Marks on any non-advertising or on any marketing not containing NCDs. You shall immediately cease all use of the Allaire Marks if Allaire determines, in its sole discretion, that such use conflicts with applicable law or the applicable Allaire policy. You agree to cooperate with Allaire in facilitating Allaire's monitoring and control of the nature and quality of products and services bearing the Allaire Marks. Your use of any Allaire Mark in connection with this Agreement shall not create any right, title or interest, in or to the use of the Allaire Marks or goodwill of Allaire and all such use and goodwill associated with the Allaire Marks will inure to the benefit of Allaire. You agree that you will at no time challenge or assist others to challenge any of the Allaire Marks or the registrations thereof, or attempt to register any trademark, marks or tradenames confusingly similar to any of the Allaire Marks. You agree that you will execute such assignments and other documents respecting the Allaire Marks or any registration thereof as may be required to vest in Allaire any and all right which you may have acquired herein or in any other proprietary rights of Allaire, whether by operation of law, estoppel or otherwise. If local government regulations prevent the transfer of any such registrations or rights to Allaire, you will assist in the transfer of such registration and rights to a nominee of Allaire's choice. You acknowledge and agree that you shall not have the right to use any trademarks associated with any third party supplier of technology contained within the NCDs to advertise or promote the NCDs without first obtaining a separate trademark license from such supplier. You and your employees and agents shall not remove, alter, deface or overprint any patent, trademark, copyright, or other proprietary rights, notifications or "restricted rights" or "limited rights" legends (or their equivalent) placed on or included with the NCDs. In addition, you shall place a notice in your packaging for and in all promotional materials for or where otherwise agreed upon by the parties, which reads: "(Allaire product name)" is included under license from Allaire Corporation. Copyright 1995-2000, Allaire Corporation. All rights reserved." If any of the NCDs is to be distributed with non-Allaire software or hardware products intended to be used with the NCD, then prior to such distribution (1) you shall verify the compatibility of the NCDs with such non-Allaire software or hardware products, and (2) you represent and warrant that you have adequately and extensively tested the NCDs with such non-Allaire products and have verified that the NCDs are compatible with and will operate as intended with such non-Allaire software or hardware products, In addition, Allaire requests that all packaging (box and any CD packaging therein) which contains both NCDs and non-Allaire products contain Allaire's allaire™ Logo or other logo requested by Allaire, provided that you shall use the Allaire Marks in accordance with this Agreement and Allaire's then current Trademark Usage Guidelines. You agree to feature the NCDs and the Allaire Marks at least as prominently as your name or logo and as any other third party product with which the NCD is distributed. Allaire may request from time to time that you submit representative advertisements, promotions and any other use of the Allaire Marks for review and approval prior to release or future releases by Allaire. Product Updates In the event that Allaire elects to make available under this Agreement an update to any of the NCDs, Allaire shall provide you with as much notice as Allaire determines reasonably possible of the availability of any such update. Upon your receipt of such update, you shall discontinue making copies of the superseded version and shall thereafter only make copies of the updated version. Nothing in this Agreement shall limit Allaire's right to change the functionality or pricing of the NCDs or Allaire's and its suppliers' rights to change the functionality of the NCDs at any time. No Additional Rights or Licenses You acknowledge and agree that except for the rights granted by this Agreement, all other rights, and all title and interest in and to the NCDs and related documentation remain the sole and exclusive property of Allaire, and that you do not derive and will not assert any title or interest in or to the software or related documentation. The NCDs are protected by the copyright laws of the United States and international copyright treaties. All rights not specifically granted herein to you are reserved to Allaire. You acknowledge and agree that the NCDs are being licensed, not sold, to you and that any distribution or delivery of the NCDs to anyone will be by license, and not by sale. Without limiting the generality of the foregoing, you do not receive any rights to any patents, copyrights, trade secrets, know how, trademarks rights to the software or related documentation or any other intellectual property rights. You may not modify or translate the NCDs or related documentation, or decompile, disassemble or reverse engineer the NCDs. Business Practices You agree at all time to comply with all applicable laws, rules and regulations, and to avoid deceptive, misleading or unethical practices, and conduct business in a manner that reflects favorably at all times on Allaire and Allaire's technology. Recordkeeping and Reporting Allaire requests that you keep full and accurate accounts and records that substantiate the number of copies of the NCDs reproduced and distributed by you. And that you report the number of NCDs that you have reproduced and distributed in such manner, including by filling out and submitting a form located at a URL provided by Allaire, as Allaire may request. Termination Unless and except to the extent you have entered into a separate written Agreement with Allaire providing otherwise, Allaire may terminate your rights under this Agreement at any time for any reason (or no reason) upon notice. You may terminate this license at any time by written notice to Allaire. Upon the termination of a license for any reason, your rights under this Agreement, including without limitation your license to copy and distribute the NCDs and use the Allaire Marks will terminate immediately and you must promptly return to Allaire or destroy all copies of the software and related documentation covered by the license. Notwithstanding the termination of this Agreement, the provisions relating to No Additional Rights or Licenses, Business Practices, Termination, Disclaimer of Warranties and Limitation on Remedies and Damages, Indemnification, Export Law Assurances and Miscellaneous shall survive the termination of this Agreement. Disclaimer of Warranties and Limitation on Remedies and Damages ALLAIRE PROVIDES NO REMEDIES OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, FOR ANY OF THE NCDs. NCDs ARE PROVIDED "AS IS." IN NO CASE SHALL ALLAIRE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSS, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, WHETHER SUCH DAMAGES ARE BASED UPON A BREACH OF EXPRESS OR IMPLIED WARRANTIES, BREACH OF CONTRACT, NEGLIGENCE, STRICT TORT, OR ANY OTHER LEGAL THEORY. THIS IS TRUE EVEN IF ALLAIRE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE WILL ALLAIRE'S LIABILITY EXCEED THE AMOUNT OF THE LICENSE FEE ACTUALLY PAID BY YOU TO ALLAIRE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE WARRANTY LANGUAGE ABOVE MAY NOT APPLY TO YOU. IN SUCH CASE, ALLAIRE'S LIABILITIES SHALL BE LIMITED BY THE ABOVE LIMITATION OF REMEDIES PROVISION. Indemnification You agree to defend, indemnify and hold harmless Allaire against and in respect of any loss, damages, obligations, penalty, deficiency or liability (including, without limitation, attorneys' fees) imposed upon, incurred by or asserted against Allaire that result from or are alleged to result from (a) acts or omissions in connection with this Agreement, or in connection with the NCDs (b) acts of negligence or misrepresentations by you, your employees, agents or resellers; (c) your breach of any provision of this Agreement or your failure to meet your obligations to or perform any acts required under agreements with your employees, agents or resellers (d) the relationship between you and any of your employees and agents, whether under industrial accident laws, worker's compensation laws or any other laws applicable to employers and employees; (e) any modification or alteration of the NCDs (other than modifications made by Allaire); and/or (f) any warranty, condition, representation or indemnity granted by you for the NCDs. Export Law Assurances You acknowledge that the NCDs are subject to the export control laws and regulations of the United States. You confirm and agree that you will not export the NCDs, directly or indirectly, to any country or end-user that is subject to United States export restrictions, or import into any country except as permitted by the laws and regulations of the applicable country. U.S. Government Licensing Rights If the software is licensed under a U.S. Government contract, you acknowledge that the software and related documentation are "commercial items," as defined in 48 C.F.R 2.01, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1. You also acknowledge that the software is a "commercial computer software" as defined in 48 C.F.R. 252.227-7014(a)(1). U.S. Government agencies and entities and others acquiring under a U.S. Government contract shall have only those rights, and shall be subject to all restrictions, set forth in this Agreement. Miscellaneous The internal laws of the Commonwealth of Massachusetts shall control this Agreement if you are located anywhere other than Canada; the internal laws of the Province of Ontario shall control if you are located in Canada. This Agreement and the applicable EULA is the complete agreement between you and Allaire concerning the NCDs. The terms and conditions of this Agreement shall prevail notwithstanding any conflict with the terms and conditions of any acknowledgement, business forms, document or other instrument submitted by you. Any modification to the terms of this Agreement or the EULA Terms will be effective only if in writing signed by both parties. The failure or delay of Allaire to exercise any of its rights under this Agreement or upon any breach of this Agreement shall not be deemed a waiver of those rights or of the breach. You and Allaire are independent contractors and shall not be deemed to be partners, joint venturers or agents of the other. EXECUTION OF THIS AGREEMENT: If you click the "I accept" button, you are stating that you agree to accept and be bound by all terms and conditions of this Agreement. Do not proceed if you are not authorized to bind the Company and/or you if you do not agree to the terms and conditions of this Agreement.