SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT

“Additional Program” means a software program that is added as a Program to this Agreement after the Effective Date by appending an Exhibit A hereto.

“Complete Copy” means a Program which includes (i) a master copy of the Program, (ii) all Documentation for the Program, and (iii) all associated Sales Tools and Support Tools, each in the form(s) and on the media described in Exhibit A.

“Documentation” means the end user manuals and other documentation (including copies of any such materials in electronic form to the extent Licensor makes available to its customers) that Licensor has created for a Program including all localized versions thereof, if any, and any other documentation and information regarding a Program, including but not limited to a functional description of the Program, directions for installation, verification of installation and use, and any other explanatory material reasonably necessary for a user to perform all of the functions of the Program, which Licensor generally provides to its customers, including those items listed and described in Exhibit A hereto.

“Enhancements” mean all present and future bug fixes, error corrections, updates, modifications, new features, new functionalities, upgrades or new versions of a Program, Source Code Program or Documentation which Licensor makes available at no additional charge to its customers which are subscribing to maintenance and support.

“Final Copy” means a Complete Copy of a Program that has been reviewed and accepted by HP pursuant to Section 2.8 hereof.

“HP License” means HP’s standard form of reseller agreement or end-user license agreement, as applicable, in effect from time-to-time used by HP.

"HP Partner" means an entity that engages in software development and participates in the HP Developer and Solution Partner Program (DSPP) specifically with respect to HP Product.

“HP Product(s)” means the product(s) set forth in Exhibit B.

“Marks” shall have the meaning ascribed to such term in Section 4.3.

“Program” means Licensee’s software program(s), in object code format, listed and described on an Exhibit A appended hereto, including all Enhancements and localized versions thereto, if any, Third Party Code (as defined in Section 4.7), if any, and Documentation. Program shall also include Additional Programs. The first Programs subject to this Agreement are set forth and incorporated herein by the attached Exhibit A1 and Exhibit A2; each subsequent Exhibit A appended hereto by amendment shall be consecutively numbered.

“Source Code Program” means the code of a Program, including comments and procedural code such as job control language, which is machine-readable and which may be printed or displayed in a form readable and understandable by a computer programmer of ordinary skill who is well versed in the languages used in the Program.

“Subsidiaries” means an entity controlled by or under common control with a party to this Agreement, through ownership or control of more than fifty percent (50%) of the voting power of the shares or other means of ownership or control, provided that such control continues to exist.

“Sales Tools” means all applications, utilities or other materials (in object code form) programs that are used by Licensor in the normal course of marketing its Programs but only those which Licensor has the right to provide to HP on a royalty-free basis.

“Support Tools” means all applications, utilities, listings, or other materials (in object code form) related to a Program that are reasonably necessary to enable HP to exercise its rights under Section 3.2 hereof.

Program Development.  Any development work that is required with respect to a Program will be described in a separate document (“Project Statement”) mutually acceptable to the parties. Licensor agrees to use reasonable commercial efforts to undertake and complete the work set forth in each Project Statement so that each Program meets the specifications set forth therein. The first such Project Statement is attached hereto and incorporated herein as Exhibit F.

Development Program Management.  The individuals set forth on Exhibit D as Program Managers are the technical contacts for each party for this Agreement and, unless otherwise named in the applicable Project Statement, for any Project Statement and any ongoing coordination during the term of each Project Statement.  The Program Managers will be responsible for day-to-day communications between the parties regarding the technical aspects of each Project Statement.  Either party may change its Program Manager at any time and from time to time by giving the other party written notice.  Each Program Manager will be responsible for (i) monitoring the schedules and progress of work for each Project Statement; (ii) receiving and submitting requests for information and/or assistance; (iii) determining whether a request he or she receives for information and/or assistance from the other Program Manager is necessary for Licensor to complete the work specified in any Project Statement; (iv) receiving and submitting deliverables; (v) cooperating with the other Program Manager to coordinate acceptance testing in accordance with Section 2.8; and (vi) supervising and recording the exchange of confidential information pursuant to this Agreement.  The Program Managers will meet remotely every 60 days, or for any alternative interval as set forth in a Project Statement, during the term of the Project Statement to discuss the progress of the development effort and, if applicable, to exchange information and deliverables.

Development Expenses.  Except as expressly set forth herein, each party shall bear its own costs and expenses incurred in connection with its Project activities.

Delivery. Licensor agrees to deliver to HP, for evaluation pursuant to Section 2.8, a Complete Copy of (i) each Program listed in Exhibit A as of the Effective Date or, if development is required in accordance with a Project Statement, upon the date set forth in the applicable Project Statement; (ii) any Additional Programs no later than ten (10) days after execution by Licensor and HP of an Amendment to Exhibit A to include a software product as an Additional Program hereunder, and (iii) all Enhancements to a Program no later than ten (10) days after the date on which the corresponding bug fixes, error corrections, updates, modifications, new features, new functionalities, upgrades or new versions of Programs are first delivered to any other of Licensor’s distributors or partners , if applicable. HP will have the right to test and evaluate each Program (including, as defined, Additional Program(s) and/or Enhancement(s)) under the acceptance procedure described in Section 2.8, and the requirements as delineated in Exhibit B. In the event Licensor fails to deliver a Complete Copy under clauses (i) or (ii) above in accordance with the terms of this Section 2.4, HP’s sole remedy and Licensor’s sole liability shall be HP’s right to terminate this Agreement with respect to the applicable Program(s), in which event HP will incur no liability for payment of any Minimum Royalty applicable to such Program(s), as defined in Exhibit C, except as expressly stated herein.

New HP Products and Operating Systems. Licensor shall use commercially reasonable efforts to modify or otherwise adapt the Programs and Enhancements for use in conjunction with revisions, releases, and successors to the HP Product within a reasonable timeframe, with the target for such modification or adaptation being the same timeframe as Licensor modifies or otherwise adapts its products for use in conjunction with any other third-party products. HP will use commercially reasonable efforts to notify Licensor of revisions planned for HP Products six (6) months prior to HP’s intended release and to provide Licensor with preliminary copies of such releases within a reasonable timeframe.

HP Product Loans. If access to HP Products is required by Licensor during the term of any Project Statement, such requirements will be set forth in the applicable Project Statement. HP will have the sole option to determine the best mechanism to provide Licensor with access to such HP Products, such as but not limited to use of the HP’s Advanced Technology Center (“ATC”) on a remote basis or loaned equipment. The terms of HP’s Remote Access Agreement and/or HP’s Loan Agreement, as applicable, will apply to such transactions.

Program Performance. Licensor shall ensure the Programs and Enhancements for use in conjunction with HP Products execute with the same features, functionality, speed, and quality as Programs and Enhancements for use in conjunction with Non-HP Products, to the extent commercially feasible based on the relative underlying capabilities of the HP Products vs. the related non-HP products.

Acceptance.

Acceptance of Program. HP will have thirty (30) days from the date of receipt of a Complete Copy of the Program to determine if the Program: (i) materially conforms to the functional specifications set forth in the relevant Documentation; or (ii) if the Program was subject to a Project Statement with specifications that are different from the relevant Documentation, conforms to the specifications set forth in such Project Statement (collectively, “Acceptance Criteria”), and either accept, return for rework or reject the Program.  Failure of HP to provide Licensor with notice of acceptance, rework, or rejection of the Program within such thirty (30) day time period shall be deemed to be acceptance.  HP will be entitled to test and evaluate any Program by whatever means it deems appropriate, subject to restrictions in the use of the Program set forth elsewhere herein. Licensor hereby grants to HP any licenses to the Program solely to the extent necessary for HP to perform its evaluation, provided that such licenses shall be in object code only and non-exclusive, non-transferable, limited term, without rights of modification (for the period of the evaluation). Notwithstanding the foregoing, such licenses will include the right of HP to use third parties who have executed separate agreements containing substantially similar confidentiality provisions, and shall only be permitted to access the Program in order to perform such evaluation on behalf of HP and for no other purpose. If HP returns a Program for rework due to a failure to conform to the applicable Acceptance Criteria, Licensor agrees to correct the listed defects and resubmit the Program for re-evaluation, under the same acceptance procedure, within such period as agreed to by the parties in writing. If, after such rework, HP again rejects a Program for failure to conform to the applicable Acceptance Criteria, in lieu of returning it for more rework, as HP’s sole remedy, and Licensor’s sole liability for such failure, HP will give Licensor written notice (including, without limitation, by electronic mail) of rejection stating the reasons for its unacceptability, and this Agreement will terminate with respect to that version of the Program and associated Documentation. Notwithstanding the foregoing, if such Program was subject to a Project Statement per (ii) above, in lieu of a single opportunity to rework, Licensor shall have three (3) opportunities to rework such Program, each opportunity to be no more than thirty (30) days in duration (for a total of ninety (90) days); provided, however, that defects discovered in the Program in the second and third rework opportunity which were not identified at the time of the first rework and which were not caused by such rework will not be cause for rejection of such Program and will, instead, be corrected in accordance with the warranty terms as set forth in Section 7.2. Until such time as HP shall have either accepted or rejected the Program in accordance with this Section 2.8.1, and associated Documentation in accordance with Section 2.8.2, Licensor shall not make generally available any version of a Program (other than the versions released as of the Effective Date or released prior to the corresponding Additional Program being added to this Agreement), and shall not permit any of its distributors or other partners to so release. For avoidance of doubt, HP will not be liable for payment of royalties or Minimum Royalty, as defined in Exhibit C, for any Program which has been rejected in accordance with the foregoing terms and conditions.

Additional Programs. Licensor shall offer to HP an opportunity to add to this Agreement any and all of Licensor’s future software products that would not otherwise constitute a Program or Enhancement hereunder as of the Effective Date, as and when such future software products become generally available. Such offer may include pricing and other license restrictions associated therewith. Such offer shall be made at least six (6) months prior to Licensor’s scheduled general availability date for such software product, and not later than any similar offer being made to any other distributor or partner of Licensor. HP will inform Licensor within three (3) months of such offer whether it intends to accept such offer and add Licensor’s software as an Additional Program. If HP accepts such offer, Licensor and HP shall execute an amendment to Exhibit A to include such software product as an Additional Program hereunder.

Licenses for Demonstration, Evaluation, and Internal Use. Licensor hereby grants and agrees to grant to HP, under all intellectual property rights embodied in the Program, a non-exclusive, worldwide, non-transferable, royalty-free license to use, reproduce, display, translate, import, disclose, and distribute the Program in whole or in part, for purposes of (i) replacement due to any maintenance, warranty or support obligation, (ii) evaluation, for not more than 90 days, by a customer or HP Partner (as defined in Section 3.4) (“Evaluation Copies”), (iii) demonstration, marketing, and promotional activities by or on behalf of HP or its Distributors at HP Advanced Technology Centers (or successor facilities), HP attended tradeshows and other HP and/or Distributor locations, (iv) demonstration at a prospective customer or Distributor; (v) the sale or distribution of education, training or Documentation, and (vi) re-licensing of Program to the same customer for platform upgrade or system transfer, unless HP receives net license revenue from such transaction, in which event HP will pay Licensor only the difference between the original license royalty fee and the new, upgraded license royalty fee; and (vii) HP’s non-production internal use at HP locations (e.g., support, training, testing). Such license will include the right of HP to sublicense Distributors to achieve the foregoing.

License to the Documentation. Licensor hereby grants and agrees to grant to HP, under all intellectual property rights embodied in the Documentation, a non-exclusive, worldwide, royalty-free, non-transferable license to use, reproduce, display, translate, import, disclose, distribute, modify, and prepare derivative works or compilations of: (a) the Documentation, and (b) modifications, derivative works, and compilations based upon the Documentation for use with a Program. These rights are exercisable in any medium. Such license will include the right of HP to sublicense Distributors to achieve the foregoing. The right to modify and prepare derivative works and compilations is granted solely for the purposes of (i) combining documentation of more than one program or product, (ii) condensing Documentation, (iii) localizing Documentation, (iv) formatting and preparing Documentation for user accessibility, (v) updating Documentation as appropriate to account for changes to the associated Program, and (vi) re-branding in accordance with the terms of Section 4.3. HP will make no substantive representations concerning a Program except as set forth in the Documentation furnished to HP by Licensor and/or as set forth in this Agreement. If HP introduces errors or misrepresentations into the Documentation, then Licensor has no liability for such errors or misrepresentations.

Licenses to HP Partners.  Licensor hereby grants and agrees to grant to HP, under all intellectual property rights embodied in the Program, a non-exclusive, non-transferable, worldwide, royalty-free license to distribute and sublicense a reasonable number of copies of the Program, in binary executable form only, to HP Partners for the purpose of supporting the promotion and marketing thereof and for the purpose of enabling such HP Partners to develop software applications compatible with the Program. Such copies of the Program will be provided in accordance with the HP License.

License to Photograph (Marketing Materials). Licensor hereby grants and agrees to grant to HP, under all intellectual property rights embodied in each Program and associated Documentation, a non-exclusive,  worldwide, royalty free license to capture visual images of the Program screen displays and packaging, the Documentation and the CD-ROM, if any, and to use, reproduce, display, perform, distribute, import and modify, on any media, such photographs and modifications and images solely in connection with HP’s marketing and support of the Program and training with respect to the Program. Such license will include the right of HP to sublicense Distributors to achieve the foregoing.

License to Support Tools. Licensor hereby grants and agrees to grant to HP, under all intellectual property rights embodied in all non-royalty bearing Support Tools which have been internally developed by Supplier for each Program (“Internal Support Tools”), a non-exclusive, non-transferable, worldwide, royalty-free license to internally use such Internal Support Tools for evaluation, customer support and related testing. Supplier will provide HP, at any time upon request, with a list of any other Support Tools.

License to Sales Tools. Licensor hereby grants and agrees to grant to HP, under all intellectual property rights embodied in the Sales Tools for each Program, a non-exclusive, worldwide, non-transferable, royalty free license to use such Sales Tools solely in conjunction with a Program.

No Internal Use.  Any internal use of Programs for HP’s business operations, except as expressly set forth in Section 3.2, or in operating a production environment is not included as part of the foregoing licenses and is strictly prohibited on a royalty-free basis.

Escrow Agreement and Source Code License. At HP’s request, Licensor agrees to execute the Escrow Agreement required to be added as a new depositor as a part of HP's Software Escrow Agreement with NCC Group Inc. within sixty (60) days after Acceptance of each Program. HP agrees to pay applicable escrow fees.

Internationalization. [Intentionally Omitted]

Customization. [Intentionally Omitted]

Trademarks. Neither party is granted any ownership in or license to the trademarks, marks or trade names (collectively “Marks”) of the other party. Notwithstanding the foregoing, Licensor acknowledges that HP may fairly and accurately reference Licensor’s name and the name of each Program in the course of marketing and distributing such Program. HP reserves the right to market and promote the Program under trademarks, logotypes, and trade dress of HP instead of Licensor Marks. In doing so, Licensor understands and agrees that HP reserves the right to change the Documentation (subject to Section 3.8 above) and, to be described in a Project Statement, to reasonably request Licensor to change the logon, on-line help, initialization and splash screens and the help text and "About" dialog boxes for the Program to primarily display such trademarks and logotypes in place of Licensor Marks, subject to Section 4.5.

Ownership. Subject to the rights and licenses granted to HP hereunder, Licensor retains and reserves all right, title, and interest in and to the Programs, Sales Tools, Support Tools and Documentation, including all copyrights.

Copyright Notices. HP agrees that it will not remove any reasonable copyright notices or Licensor Marks from a Program or Documentation. Licensor and HP agree that a second HP copyright notice in HP’s standard copyright notice form may be added to any authorized HP modification; provided, however, that HP may move acknowledgments of Licensor as the source of the technology to less conspicuous places in such Documentation, boxes or screens, subject to the prior approval of Licensor, which approval shall not be unreasonably withheld or delayed.

Restrictions. Except as otherwise expressly provided herein, HP will not disassemble or reverse engineer any Program without written authorization from Licensor, except as necessary to ascertain interfaces or as permitted by law (and will not authorize any third party to): (i) reverse engineer or otherwise attempt to discover any source code or underlying ideas or algorithms of any Program (ii) copy, modify, translate, localize, port or otherwise create derivative works of Program or allow any agent, reseller, distributor or end user of HP to engage in similar conduct; (iii) allow the removal, alteration, covering or obscuring or of any notice or mark that appears on the Program or media; or (iv) encumber, or timeshare the rights granted or Program licensed hereunder.  Certain Programs may only be operable in conjunction with an authorization key (“Authorization Key”).  In such case, the Authorization Key will allow each copy of such Program licensed to be installed only on one HP server or to operate within certain parameters as may be set forth in the applicable Exhibit B.  If Licensor requires certain restrictions with respect to other software which may be permitted to be installed on an HP server on which a Program is installed, such restriction will be valid only if expressly set forth in an Exhibit A accepted by HP. If the Program does contain Authorization Keys, Licensor will ensure that HP receives any keys or other materials necessary to enable the ultimate licensee to use the Program to the limits of such licensee’s license, as instructed by HP.

Third Party Code. Licensor has identified in Exhibit A any code from another party, including open source or freeware (“Third Party Code”) contained in the Program and will promptly inform HP of its intention to incorporate Third Party Code in any subsequent version of the Program within a reasonable time after completion of any such agreement with such third party or with respect to any open source or freeware prior to release of any upgrade in which such code is included. At such time Licensor will identify the specific technical details of the Third Party Code to be included and, if applicable, will identify the specific software license terms applicable to any open source and/or freeware.

Payment. HP agrees to pay Licensor royalties and support fees as set forth in Exhibit C.  Upon either party’s request, the parties agree, no more often than on an annual basis, to discuss royalties and/or support fees for the Programs; however, no change in the royalties or support fees will occur except as a result of an amendment to this Agreement in accordance with Section 11.14.

Payment Schedule and Procedure. Payments set forth in Section 6.1 will be made by Hewlett-Packard Company within 45 days after the conclusion of each of HP’s fiscal quarters for the amount of payment obligations accruing during such quarter.  Payment will be accompanied by a summary of the basis for determining the amount of such payment and will be paid in US dollars in detail sufficient to verify payments are correct.  Licensor acknowledges that the reports being received with respect to Neoview VTS support fees as of the Effective Date are sufficient to verify payments are correct.

Exclusions. No royalty, support fee, or other charge will be payable by HP for any Program used for the purposes set forth in Section 3.2 hereof, except as expressly stated therein.

“HP Net Revenue,” for purposes of royalty calculations, shall mean **.

Commencing with the Effective Date of this Agreement and subject to any royalty minimums set forth in Exhibit C, if applicable, HP will calculate royalties due to Licensor hereunder based **

For Programs distributed by HP hereunder, HP will pay a royalty to Licensor under this Agreement as set forth in Exhibit C.

In the event HP distributes copies of Program as part of a bundled product consisting of the Program together with other software products, the HP Net Revenue for such copies of the Program shall be determined using the percentage of the bundled product price that represents the Program content, based on list prices for all software product in the bundle.  Set forth below is an example of calculating the royalty due on bundled Program products assuming the royalty is to be based on HP Net Revenue.

Because a portion of HP’s recurring HP Net Revenue is not recorded in CABS, HP will adjust quarterly royalties payable hereunder to compensate Licensor for such non-recorded HP Net Revenue with respect to the Program.  The adjustment percentage will be based on the ratio of ** (the “Ratio”). Total recurring royalties due hereunder will be determined as follows:

If HP makes an upgrade product available to permit existing licensees of the Program to re-license a new version of the Program, HP and Licensor agree that the royalty due to Licensor hereunder with respect to such upgrade product will be determined using a ratio of royalty to upgrade product license fee proportional to the royalty rates stated herein.

With respect to Programs distributed by HP subject to this Agreement and in all cases subject to the existence of a support contract between HP and the customer, Licensor will deliver support services to HP as defined in Exhibit E at a fee calculated as set forth in Exhibit C.

If applicable, the term “HP Net Support Services Revenue,” for purposes of support fee calculations, shall mean the amounts invoiced to customers, recorded monthly, directly related to support of each copy of the Program under a support contract with HP less any related credits, refunds, rebates and discounts actually allowed or paid by HP (to the extent not already reflected in the price so invoiced) and excluding all taxes and other incidental costs.

Fee Warranty. Licensor warrants that the amounts payable hereunder by HP with respect to any Program are no greater than those for any other similar licensee for similar quantities of those software programs on similar hardware that correspond to such Program and on similar terms and conditions, and Licensor agrees to retroactively pass on to HP the lowest rate or price it has given to any other such licensee which meets the foregoing conditions, commencing effectively on the date it so grants the lower rate or price to any such other licensee.

Taxes. Licensor will be responsible for and indemnify HP from all taxes, levies, social securities, and other charges and duties of a similar nature imposed on amounts paid to Licensor by HP under this Agreement, including Value Added Tax or any equivalent local non-US sales tax (the above mentioned Value Added Tax and equivalent local non-US sales tax are collectively referred to as "Indirect Tax"). HP specifically does not accept responsibility for any Indirect Tax, payable in addition to any support fee, that relates to purchases of goods or services by Licensor or Licensor's suppliers. With respect to US sales and use taxes, Licensor will exempt HP, in accordance with law, effective on the date HP provides Licensor with a duly authorized exemption certificate. If HP is required by law to make any deduction or to withhold from any sum payable hereunder, then the sum payable by HP upon which the deduction is based shall be paid to Licensor net of such deduction or withholding.  HP shall pay the applicable tax authorities any such required deduction or withholding. HP shall provide Licensor with applicable documentation as requested by Licensor in writing to HP. Upon request, HP will provide Licensor with a reseller exemption certificate.

WITH THE EXCEPTION OF SECTION 10 (CONFIDENTIAL INFORMATION), TO THE FULLEST EXTENT PERMITTED BY LAW, UNLESS EXPRESSLY PROVIDED OTHERWISE UNDER THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES TO THE OTHER PARTY (INCLUDING, BUT NOT LIMITED TO LOSS OF PROFITS) ARISING OUT OF ANY PERFORMANCE OF THIS AGREEMENT OR IN FURTHERANCE OF THE PROVISIONS OR OBJECTIVES OF THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

WITH THE EXCEPTION OF SECTION 7.5 (INTELLECTUAL PROPERTY PROTECTION) AND SECTION 10 (CONFIDENTIAL INFORMATION), DURING THE TERM OF THIS AGREEMENT, HP’S AGGREGATE LIABILITY TO LICENSOR FOR DIRECT DAMAGES ARISING OUT OF HP’S PERFORMANCE OF THIS AGREEMENT, UNDER ANY LEGAL THEORY, SHALL NOT EXCEED THE GREATER OF ** OR THAT AMOUNT PAID BY HP TO LICENSOR DURING THE PRIOR TWELVE (12) MONTH PERIOD.  DURING THE TERM OF THIS AGREEMENT, LICENSOR’S AGGREGATE LIABILITY TO HP FOR DIRECT DAMAGES ARISING OUT OF LICENSOR’S PERFORMANCE OF THIS AGREEMENT, UNDER ANY LEGAL THEORY, SHALL NOT EXCEED THE GREATER OF ** OR THAT AMOUNT PAID BY HP TO LICENSOR DURING THE PRIOR TWELVE MONTH PERIOD.

NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, ANY PURPORTED LIMITATION ON LICENSOR’S LIABILITY, EITHER AS TO TYPE OR AMOUNT OF DAMAGES SHALL NOT APPLY TO ANY CLAIM ARISING FROM THE LICENSOR’S BREACH OF ITS OBLIGATION WITH RESPECT TO (i) SECTION 10 (CONFIDENTIAL INFORMATION) OR (ii) ANY FINAL JUDGMENT AWARDED OR SETTLEMENT AGREED TO BY LICENSOR IN ACCORDANCE WITH SECTION 7.5 LICENSOR’S INTELLECTUAL PROPERTY PROTECTION OBLIGATIONS.

Programs. Each Program in object code form and related Documentation provided to HP hereunder are deemed Confidential Information.

Confidential Information. During the term of this Agreement, either party may receive or have access to technical information, including without limitation source code, and Program architecture, as well as information about product plans and strategies, promotions, pricing, customers and related non-technical business information which the disclosing party considers to be confidential and which is marked as confidential at the time of disclosure or which, if disclosed orally, is identified as confidential at the time of disclosure and is followed within thirty (30) days of disclosure with a written memorandum so stating to the receiving party’s Designated Recipient for Notice (“Confidential Information”). Confidential Information will be used by only those employees, agents, or contractors of the receiving party who have a need to know such information for purposes related to this Agreement and who have executed separate agreements containing confidentiality provisions no less protective of the disclosing party than set forth herein.

Protection of Confidential Information. The receiving party will protect any such Confidential Information of the disclosing party by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Confidential Information as the receiving party uses to protect its own confidential information of like nature. The receiving party will, if permitted by law, provide reasonable prior notice to the disclosing party and so that disclosing party may request a protective order if the receiving party is required to reveal the Confidential Information under a subpoena, court order or other operation of law. The foregoing restriction will survive termination of this Agreement, but will not apply to any information which (i) was in the receiving party’s possession prior to receipt from the disclosing party, (ii) is independently developed or learned by the receiving party, (iii) is publicly known or readily ascertainable by proper means, (iv) is rightfully received from a third party without a duty of confidentiality, (v) is disclosed by the disclosing party to a third party without an express or implied duty of confidentiality on the third party, (vi) is disclosed under operation of law or (vii) is disclosed by the receiving party with the disclosing party’s prior written approval.

Licensor Source Code. HP agrees to treat any Source Code Programs provided by Licensor hereunder as Confidential Information of Licensor under this Section 10 until an exclusion set forth under Section 10.3 applies.

Residuals. Notwithstanding the foregoing, either party may use and disclose any Residuals for any purpose, subject to confidentiality restrictions hereunder, except that no license to any patent or copyright is granted under this Section 10.5. The term “Residuals” means Confidential Information in non-tangible form which may be retained in the unaided memories of any of the employees, agents, or contractors of the receiving party, but shall not include any third party Confidential Information.  The receiving party shall have no obligation to limit or restrict the assignment of its employees, agents, or contractors or to pay royalties for any work resulting from the use of Residuals.

Independent Development.  Licensor understands that HP designs, develops and acquires hardware and software for use with its own computer system products, and that existing or planned hardware and software which HP can demonstrate was independently developed without use of Licensor’s proprietary information or Confidential Information or acquired by HP may contain ideas and concepts similar or identical to those contained in Licensor’s Programs, Documentation, Sales Tools or Support Tools.  Licensor agrees that entering into this Agreement shall not preclude HP, in any way, from using such ideas and concepts to develop or acquire similar hardware or software for any purpose, provided that HP does not use Licensor’s proprietary information or Confidential Information.

Notices. All notices to be given under this Agreement must be in writing and addressed to the receiving party’s designated recipient specified in Exhibit D. Notices are validly given upon the earlier of confirmed receipt by the receiving party or three (3) days after dispatch by courier or certified mail, postage prepaid, properly addressed to the receiving party. Notices may also be delivered by telefax and will be validly given upon oral or written confirmation of receipt. Either party may change its address for purposes of notice by giving notice to the other party in accordance with these provisions.

Exhibits. Each Exhibit attached to this Agreement is deemed a part of this Agreement and incorporated herein wherever reference to it is made.