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SQL Products | Database Development Products | Uptime Cloud Monitor | Uptime Infrastructure Monitor | Precise Application Performance Platform

Software License Agreement – Precise Application Performance Platform

Effective as of March 2014

PRECISE SOFTWARE SOLUTIONS, INC. AND/OR ITS AFFILIATES ("PRECISE") IS WILLING TO LICENSE THE LICENSED SOFTWARE TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE LICENSED SOFTWARE (REFERENCED BELOW AS "YOU" OR "YOUR") ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS END USER LICENSE AGREEMENT ("LICENSE AGREEMENT").

READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE USING THE LICENSED SOFTWARE. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND PRECISE. BY OPENING THE LICENSED SOFTWARE PACKAGE, BREAKING THE LICENSED SOFTWARE SEAL, CLICKING THE "I AGREE" OR "YES" BUTTON, OR OTHERWISE INDICATING ASSENT ELECTRONICALLY, OR BY INSTALLING THE LICENSED SOFTWARE OR OTHERWISE USING THE LICENSED SOFTWARE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT.

IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, CLICK THE "I DO NOT AGREE" OR "NO" BUTTON OR DO NOT CONTINUE TO INSTALL THE SOFTWARE OR OTHERWISE INDICATE YOUR REFUSAL AND MAKE NO FURTHER USE OF THE LICENSED SOFTWARE. UNLESS OTHERWISE DEFINED HEREIN, CAPITALIZED TERMS WILL HAVE THE MEANING GIVEN IN THE "DEFINITIONS" SECTION OF THIS LICENSE AGREEMENT AND SUCH CAPITALIZED TERMS MAY BE USED IN THE SINGULAR OR IN THE PLURAL AS THE CONTEXT REQUIRES.

1. DEFINITIONS.
“Content Updates” means content used by certain Precise products which is updated from time to time, including but not limited to any maintenance releases or upgrades to the Licensed Software.
“Documentation” means the user documentation Precise provides with the Licensed Software.
“License and Support Certificate” means the certificate sent by Precise confirming Your purchase of the Licensed Software and the applicable Precise Maintenance Services related to the Licensed Software.
“License Instrument” means one or more of the following applicable documents which further defines Your license rights to the Licensed Software: a Purchase Order, Order Form, Price Quote, License and Support Certificate or other similar written license document issued by Precise confirming the types and quantities of Licensed Software licenses purchased by You and the Use Level and Maintenance Services applicable to such Licensed Software.
“Licensed Software” means the Precise software product, in object code form, accompanying this License Agreement, including any Documentation included in, or provided for use with, such software or that accompanies this License Agreement.
“Maintenance Services” means the technical support services provided by Precise pursuant to and in accordance with Section 10 hereof.
“Production Environment” means the computer systems, databases, and hardware used by You in support of Your actual internal business operations and into which You install and operate software for its intended uses by end users in the ordinary course of Your business.
“Test Environment” means any operating environment other than a Production Environment and includes, without limitation, the computer systems, databases, and hardware used by You to simulate a Production Environment for the purposes of testing or evaluating the functionality, interoperability or stability of software without impacting the actual Production Environment or Your actual internal business operations.
“Upgrade” means any version of the Licensed Software that has been released to the public and which replaces the prior version of the Licensed Software on Precise's price list pursuant to Precise's then-current upgrade policies.
“Use Level” means the license use meter or model (which may include operating system, hardware system, application or machine tier limitations, CPU or core counts or instances, as applicable) by which Precise measures, prices and licenses the right to use the Licensed Software, in effect at the time an order is placed for such Licensed Software, as indicated in this License Agreement and the applicable License Instrument.

2. LICENSE GRANT. Subject to Your compliance with the terms and conditions of this License Agreement, including, but not limited to the additional restrictions and conditions contained in Section 17 hereof, Precise grants to You the following rights: (i) a non-exclusive, non-transferable (except as stated otherwise in Section 16.1) license to use the Licensed Software solely in the Territory defined and set forth in Your applicable License Instrument and solely in support of Your internal business operations in the quantities and at the Use Levels described in this License Agreement and Your applicable License Instrument; and (ii) the right to make a single uninstalled copy of the Licensed Software for archival purposes (such uninstalled copy, a “DR License”) which You may use and install solely for disaster-recovery purposes and solely during the pendency of a Disaster. For purposes of this Agreement a “Disaster” is deemed to have occurred when the primary installation of the Licensed Software becomes unavailable for use due to the complete failure or inaccessibility of Your Production Environment in which the Licensed Software is installed. The Licensed Software is accepted by You F.O.B. Origin.

2.1. TERM. The term of the Licensed Software license granted under this License Agreement shall be (i) perpetual (subject to Section 14), or (ii) if You have obtained the Licensed Software on a non-perpetual basis, under a subscription or term-based license, then this license will be for the period of time indicated on the applicable License Instrument. If You have obtained the Licensed Software on a non-perpetual basis, Your rights to use such Licensed Software shall end on the applicable end date as indicated on the applicable License Instrument and You shall cease use of the Licensed Software as of such applicable end date.

3. LICENSE RESTRICTIONS. You may not, without Precise's prior written consent, conduct, cause or permit the: (i) use, copying, modification, rental, lease, sublease, sublicense, or transfer of the Licensed Software, except as expressly provided in this License Agreement; (ii) creation of any derivative works based on the Licensed Software; (iii) reverse engineering, disassembly, or decompiling of the Licensed Software (except that You may decompile the Licensed Software for the purposes of interoperability only to the extent permitted by and subject to strict compliance under applicable law); (iv) use of the Licensed Software in connection with service bureau, facility management, timeshare, service provider or like activity whereby You operate or use the Licensed Software for the benefit of a third party; (v) use of the Licensed Software by any party, other than You; (vi) use of a later version of the Licensed Software other than the version that accompanies this License Agreement unless You have separately acquired the right to use such later version through a License Instrument; nor (vii) use of the Licensed Software above or in excess of the quantity and Use Level that have been licensed to You under this License Agreement and the applicable License Instrument.

4. OWNERSHIP/TITLE. The Licensed Software is the proprietary property of Precise and/or its licensors and is protected by intellectual property rights, including copyright, patent and trade secret laws. Precise and its licensors retain any and all rights, title and interest in and to the Licensed Software and the Documentation, including in all copies, improvements, enhancements, modifications and derivative works of the Licensed Software and the Documentation. Your rights to use the Licensed Software shall be limited to those expressly granted in this License Agreement. All rights not expressly granted to You are retained by Precise and/or its licensors and/or its suppliers.

5. CONTENT UPDATES. If the Maintenance Services offering You purchase includes Content Updates, as indicated on Your License Instrument, You are granted the right to use, as part of the Licensed Software, such Content Updates as and when they are made generally available to Precise's end user customers who have purchased such Maintenance Services offering and for such period of time as indicated on the face of the applicable License Instrument. This License Agreement does not otherwise permit You to obtain and use Content Updates.

6. UPGRADES/CROSS-GRADES. Precise reserves the right to require that upgrades (if any) of the Licensed Software may only be obtained in a quantity equal to the number indicated on the applicable License Instrument. An upgrade to an existing license shall not be deemed to increase the number of licenses which You are authorized to use. Additionally, if You upgrade a Licensed Software license, or purchase a Licensed Software license listed on the applicable License Instrument to cross-grade an existing license (i.e. to increase its functionality, and/or transfer it to a new operating system, hardware tier or licensing meter), then Precise issues the applicable Licensed Instrument based on Your agreement that You shall cease using the original license. Any such license upgrade or cross-grade is provided under Precise's policies in effect at the time of order. This License Agreement does not separately license You for additional licenses beyond those which You have purchased, and which have been authorized by Precise as indicated on the applicable License Instrument.

7. LIMITED WARRANTY.
7.1. MEDIA WARRANTY. If Precise provides the Licensed Software to You on tangible media, then Precise warrants that the magnetic media upon which the Licensed Software is recorded will not be defective under normal use, for a period of ninety (90) days from delivery. Precise will replace any defective media returned to Precise within the warranty period at no charge to You. The above warranty is inapplicable in the event the Licensed Software media becomes defective due to unauthorized use of the Licensed Software. THE FOREGOING IS YOUR SOLE AND EXCLUSIVE REMEDY FOR PRECISE'S BREACH OF THIS WARRANTY.

7.2. PERFORMANCE WARRANTY. Precise warrants that the Licensed Software, as delivered by Precise and when used in accordance with the Documentation, will substantially conform to the Documentation for a period of ninety (90) days from delivery. If the Licensed Software does not comply with this warranty and such non-compliance is reported by You to Precise within the ninety (90) day warranty period, then Precise will do one of the following, selected at Precise's reasonable discretion: either (i) repair the Licensed Software, (ii) replace the Licensed Software with software of substantially the same functionality, or (iii) terminate this License Agreement and refund the relevant license fees paid for such non-compliant Licensed Software. The above warranty specifically excludes defects resulting from accident, abuse, repair, modifications or enhancements, or misapplication including, without limitation, portlet development, as described in Section 17.3(E)(3). THE FOREGOING IS YOUR SOLE AND EXCLUSIVE REMEDY FOR PRECISE'S BREACH OF THIS WARRANTY.

8. WARRANTY DISCLAIMERS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES SET FORTH IN SECTIONS 7.1 AND 7.2 ARE YOUR EXCLUSIVE WARRANTIES AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. PRECISE MAKES NO WARRANTIES OR REPRESENTATIONS THAT THE LICENSED SOFTWARE, CONTENT UPDATES OR UPGRADES WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OR USE OF THE LICENSED SOFTWARE, CONTENT UPDATES, AND UPGRADES WILL BE UNINTERRUPTED OR ERROR-FREE. YOU MAY HAVE OTHER WARRANTY RIGHTS, WHICH MAY VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.

9. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL PRECISE OR ITS AFFILIATES, LICENSORS, RESELLERS, SUPPLIERS OR AGENTS BE LIABLE TO YOU FOR (i) ANY COSTS OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS AND SERVICES, LOSS OF PROFITS, LOSS OF USE, LOSS OF OR CORRUPTION TO DATA, BUSINESS INTERRUPTION, LOSS OF PRODUCTION, LOSS OF REVENUES, LOSS OF CONTRACTS, LOSS OF GOODWILL, OR ANTICIPATED SAVINGS OR WASTED MANAGEMENT AND STAFF TIME; OR (ii) ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES WHETHER ARISING DIRECTLY OR INDIRECTLY OUT OF THIS LICENSE AGREEMENT, EVEN IF PRECISE OR ITS LICENSORS, RESELLERS, SUPPLIERS OR AGENTS HAVE BEEN ADVISED SUCH DAMAGES MIGHT OCCUR. IN NO CASE SHALL PRECISE'S LIABILITY EXCEED THE FEES YOU PAID FOR THE LICENSED SOFTWARE GIVING RISE TO THE CLAIM. NOTHING IN THIS LICENSE AGREEMENT SHALL OPERATE SO AS TO EXCLUDE OR LIMIT PRECISE'S LIABILITY TO YOU FOR DEATH OR PERSONAL INJURY ARISING OUT OF NEGLIGENCE OR FOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY LAW. THE DISCLAIMERS AND LIMITATIONS SET FORTH ABOVE WILL APPLY REGARDLESS OF WHETHER OR NOT YOU ACCEPT THE LICENSED SOFTWARE, CONTENT UPDATES OR UPGRADES.

10. MAINTENANCE AND SUPPORT. You agree to purchase first year Maintenance Services for each purchased Licensed Software. You have the option to renew Maintenance Services after the expiration of the first year Maintenance Services term. All Maintenance Services purchased for the Licensed Software is subject to Precise's then-current Maintenance Services policies, located at http://www.idera.com/legal/precise-maintenance-support. Such Maintenance Services policies are subject to change at any time.

11. SOFTWARE EVALUATION. If the Licensed Software is provided to You for evaluation purposes and You have an evaluation agreement with Precise for the Licensed Software, then Your rights to evaluate the Licensed Software will be pursuant to the terms of such evaluation agreement. If You do not have an evaluation agreement with Precise for the Licensed Software and if You are provided the Licensed Software for evaluation purposes, then the following terms and conditions in this Section 11 shall also apply to Your use of the Licensed Software: Precise grants to You a non-exclusive, temporary, royalty-free, non-assignable license to use the Licensed Software solely for internal non-production evaluation and testing purposes. Such evaluation license shall terminate (i) on the end date of the pre-determined evaluation period, if an evaluation period is pre-determined in the Licensed Software, (ii) on the end date of the pre-determined evaluation period, if an evaluation period is pre-determined in the applicable License Instrument or (iii) sixty (60) days from the date of Your initial installation of the Licensed Software, if no such evaluation period is pre-determined in either the Licensed Software or the applicable License Instrument ("Evaluation Period"). The Licensed Software may not be transferred and is provided "AS IS" without warranty or indemnification by Precise of any kind. You are solely responsible to take appropriate measures to back up Your system and to take other measures to prevent any loss of files or data. The Licensed Software may contain an automatic disabling mechanism that prevents its use after a certain period of time. Upon expiration of the Licensed Software Evaluation Period, You will cease use of the Licensed Software and destroy all copies of the Licensed Software. All other terms and conditions of this License Agreement shall otherwise apply to Your evaluation of the Licensed Software as permitted herein.

12. U.S. GOVERNMENT RESTRICTED RIGHTS. The Licensed Software is a "commercial item" as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, and any successor regulations. Use, modification, reproduction release, performance, display or disclosure of the Licensed Software is provided to U.S. Government end users solely pursuant to the terms and conditions herein.

13. EXPORT REGULATION. You acknowledge that the Licensed Software and related technical data and services (collectively "Controlled Technology") are subject to the import and export laws of the United States, specifically the U.S. Export Administration Regulations ("EAR"), and the laws of any country where Controlled Technology is imported or re-exported. You agree to comply with all relevant laws and will not export any Controlled Technology in contravention of U.S. law nor to any prohibited country, entity, or person for which an export license or other governmental approval is required. All Precise products, including the Controlled Technology are prohibited for export or re-export to Cuba, North Korea, Iran, Syria, Sudan and to any country subject to relevant trade sanctions. You hereby agree that You will not export or sell any Controlled Technology, nor provide the Licensed Software for use in connection with chemical, biological or nuclear weapons, or missiles, drones or space launch vehicles capable of delivering such weapons.

14. TERMINATION. This License Agreement shall terminate upon Your breach of any term contained herein or in accordance with the provisions contained herein. Upon termination, You shall immediately stop using and destroy all copies of the Licensed Software.

15. SURVIVAL. The following provisions of this License Agreement shall survive termination of this License Agreement: Section 1 (Definitions), Section 3 (License Restrictions), Section 4 (Ownership/Title), Section 8 (Warranty Disclaimers), Section 9 (Limitation of Liability), Section 12 (U.S. Government Restricted Rights), Section 13 (Export Regulation), Section 15 (Survival), Section 16 (General), Section 17.1 (A), (B) and (C), and Section 17.3 (C), (D) and (E).

16. GENERAL.

16.1 ASSIGNMENT. You may not assign the rights granted hereunder or this License Agreement, in whole or in part and whether by operation of contract, law or otherwise, without Precise's prior express written consent.

16.2 COMPLIANCE WITH APPLICABLE LAW. You are solely responsible for Your compliance with, and You agree to comply with, all applicable laws, rules, and regulations in connection with Your use of the Licensed Software.

16.3 AUDIT. An auditor, selected by Precise, may, upon reasonable notice and during normal business hours, but not more often than once each year, inspect Your records and deployment in order to confirm that Your use of the Licensed Software complies with this License Agreement and the applicable License Instrument and Use Levels. You agree to comply with the findings of any and all such audit(s) and You further agree to purchase appropriate licenses from Precise for any over-deployed Licensed Software demonstrated by any and all such audit(s). Precise shall bear the costs of any and all such audit(s), except where an audit demonstrates that the value of Your non-compliant usage exceeds five percent (5%) of the then-current list price of the Licensed Software for Your compliant deployments. In such case, in addition to purchasing appropriate licenses from Precise for any over-deployed Licensed Software, You shall reimburse Precise for the auditor's reasonable actual fees for such audit(s).

16.4 GOVERNING LAW AND VENUE; SEVERABILITY; WAIVER. THIS AGREE¬MENT WILL BE GOVERNED BY AND INTER¬PRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW RULES. PRECISE AND YOU EACH HEREBY IRREVOCABLY AGREE THAT THE SOLE AND EXCLUSIVE JURISDICTION AND VENUE FOR ANY LITIGATION ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF SHALL BE IN AN APPROPRIATE FEDERAL OR STATE COURT IN THE STATE OF TEXAS LOCATED IN HARRIS COUNTY. Such governing law is exclusive of any provisions of the United Nations Convention on Contracts for Sale of Goods, including any amendments thereto, and without regard to principles of conflicts of law. If any provision of this License Agreement is found partly or wholly illegal or unenforceable, such provision shall be enforced to the maximum extent permissible, and remaining provisions of this License Agreement shall remain in full force and effect. A waiver of any breach or default under this License Agreement shall not constitute a waiver of any other subsequent breach or default.

16.5 THIRD PARTY PROGRAMS. The Licensed Software may contain third party software programs ("Third Party Programs") that are available under open source or free software licenses and distributed, embedded or bundled with the Licensed Software or recommended in connection with its installation and use. This License Agreement does not alter any rights or obligations You may have under those open source or free software licenses. Notwithstanding anything to the contrary contained in such licenses, the disclaimer of warranties and the limitation of liability provisions in this License Agreement shall apply to such Third Party Programs.

16.6 CUSTOMER SERVICE. Should You have any questions concerning this License Agreement, or if You desire to contact Precise for any reason, please write to: Precise Software Solutions, Inc., Attn: Chief Financial Officer, 2950 North Loop Freeway West, Suite 700, Houston, Texas 77092 U.S.A.

16.7 ENTIRE AGREEMENT. This License Agreement and any related License Instrument are the complete and exclusive agreement between You and Precise relating to the Licensed Software and supersede any previous or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter. This License Agreement prevails over any conflicting or additional terms of any purchase order, ordering document, acknowledgement or confirmation or other document issued by You, even if signed and returned by Precise. Precise reserves the right to change or modify this License Agreement without notice at any time in Precise's sole discretion by publishing the revised Licensed Agreement on the following website: http://www.idera.com/legal/softwarelicenseagreement/precise. Your express acceptance or Your continued use of the Licensed Software shall constitute Your acceptance to be bound by the terms and conditions of the revised Licensed Agreement.

16.8 PUBLICITY. You authorize Precise to publicly disclose that You are a customer and to use Your name and logo to identify You as a customer. You agree that Precise may issue a press release upon Your purchase of the Licensed Software announcing such purchase and describing the general nature of the solution Precise provided You. Precise agrees it will obtain Your prior approval if Precise discusses information outside the scope of the press release in the Precise web site, case studies, brochures, advertising and other marketing materials. Except as set forth in this Section 16.8, there shall be no public announcement of this License Agreement or the relationship between You and Precise without mutual review and approval by both You and Precise, except as part of required governmental filings, SEC filings (forms 10-K, 10-Q, etc.), quarterly earnings announcements and financial presentations, or listings of other similar relationships.

17. ADDITIONAL TERMS AND CONDITIONS. Your use of the Licensed Software is subject to the terms and conditions below in addition to those stated above.

17.1 CPU LICENSE UNITS.

A. Unless otherwise expressly set forth in writing on a License Instrument, the Licensed Software is licensed by and the Level of Use is restricted by the total number, in the aggregate, of CPU License Units calculated in accordance with this Section 17.1. One license for the Licensed Software is required for each CPU License Unit and each CPU License Unit may be used in either a non-virtual or virtual environment. A "CPU License Unit" means: (i) with respect to non-virtual environments, one (1) Physical CPU Unit as calculated pursuant to Section 17.1(B) below; and (ii) with respect to virtual environments, up to four (4) virtual CPUs allocated to a virtual machine. For example, if ten (10) CPU License Units are purchased, You may use such CPU License Units as either: (a) ten (10) Physical CPU Units; (b) forty (40) Virtual CPU Units; or (c) five (5) Physical CPU Units and twenty (20) Virtual CPU Units. For purposes of this Section 17.1, a "CPU" (also referred to as a "processor") is defined as the logic circuitry that responds to and processes the instructions that run a computer and/or that access or runs the Licensed Software. Each CPU may be comprised of multiple processing cores which may each independently act as individual CPUs.

B. In non-virtual environments, the total "Physical CPU Units" each requiring an individual license is calculated as the sum of (i) the number of licensed physical CPU sockets on the system motherboard that are populated with physical CPUs, each of which may have up to four (4) cores without adding an additional Physical CPU Units in respect of Excess Cores (as defined below) as provided in clause (ii) below (such initial four cores, the “Base Cores”), and (ii) the sum of all Excess Cores calculated in accordance with this Section 17.1(B). The term “Excess Cores” means, with respect to each physical CPU populated in a socket, the quotient of the aggregate number of all additional cores in excess of the Base Cores for such CPU divided by four (4) and rounded up to the nearest whole number. For example, if there is a two-socket server with each physical CPU socket populated with an eight-core processor, four (4) Physical CPU Units are counted (two in respect of the physical CPUs and two in respect of the cores in excess of the Base Cores per CPU) and four (4) CPU License Units of the Licensed Software need to be purchased. If there is a two-socket server with each physical CPU socket populated with a six-core processor, four (4) Physical CPU Units are counted (two in respect of the physical CPUs and two in respect of the cores in excess of the Base Cores per CPU) and four (4) CPU License Units of the Licensed Software need to be purchased.

C. In virtual environments, a "Virtual CPU Unit" requiring an individual license is defined as up to four (4) virtual CPUs allocated to a virtual machine. For example, if four (4) virtual CPUs are allocated to a virtual machine, four (4) Virtual CPU Units are counted and one (1) CPU License Unit of the Licensed Software needs to be purchased. If seven (7) virtual CPUs are allocated to a virtual machine, seven (7) Virtual CPU Units are counted and two (2) CPU License Units of the Licensed Software need to be purchased.

D. "Tier" is a Precise defined classification of a server or processor. The server or processor tier defines the type of hardware on which the software may be deployed.

17.2 TEST LICENSES.

To the extent You purchase in respect of any Licensed Software licenses that are designated “Test & Development” licenses, “Test & Dev.” licenses or “Non-Production” licenses” in the applicable License Instrument (each, a “Test License”), You hereby acknowledge that such Test Licenses are restricted to use in a Test Environment and You are licensed thereunder to install and operate such Licensed Software only in a Test Environment. Under no circumstances shall You install or operate Licensed Software in a Production Environment by virtue of or pursuant to a Test License. Your breach of this Section 17.2 is a material breach of this Agreement and, in addition to all other remedies available to Precise hereunder or at law, if you breach this Section 17.2 You shall pay Precise the difference in price (based upon Precise’s then-current list price) between a Test License and a standard license for use in a Production Environment.

17.3 Additional Kit.

A. In this Section 17.3 "Kit" means either (i) an Application Programming Interface ("API") or (ii) a Software Development Kit ("SDK"), as the case may be.

B. DEVELOPMENT LICENSE. If the Licensed Software that You acquire includes a Kit that is:

(i) an API for use of the Licensed Software, then You are entitled under this Agreement to install such API on an unlimited number of Processors solely for the purposes of designing, developing and testing the interoperability of Your application software product with the Licensed Software ordered by You under this Agreement, provided that You are the only entity using the API and Your use of the Licensed Software shall be compliant with the terms of this Software License Agreement. Such API license shall be in addition to any licenses for the other portions of the Licensed Software acquired by You under this Agreement. You shall have no right to modify or alter the API; or

(ii) an SDK to allow You to create plug-in applications ("Applications") to use in conjunction with the Licensed Software, then You are entitled under this Agreement to install such SDK on an unlimited number of Processors solely for the purposes of designing, developing and testing such Applications in conjunction with the Licensed Software ordered by You under this Agreement; provided however You are the only entity using such SDK and that Your use of the Licensed Software shall be compliant with the terms of this Software License Agreement. Such SDK license shall be in addition to any licenses for the other portions of the Licensed Software acquired by You under this Agreement. You shall have no right to modify or alter the SDK.

C. NO REDISTRIBUTION OF CODE. The Kit shall only be used by You for Your internal use and may be not be distributed by You in any manner whatsoever to any third party.

D. OPEN SOURCE CODE. Your license rights to the Kit are conditioned upon Your not creating derivative works of the Kit in any manner that would cause the Kit in whole or in part to become Open Source Code. "Open Source Code" means a software program that is licensed under terms that require disclosure to parties other than the licensor of the source materials of the software program or modifications thereof, or any source materials of any other software program with which the Open Source Code software program is intended to operate, or that create obligations to distribute any portions of any software program with which the Open Source Code software program is used. Open Source Code includes, without limitation, any software licensed under the GNU General Public License.

E. DISCLAIMERS: Notwithstanding any other provision of this Agreement, the following terms shall be applicable to the Kit:

1. WARRANTY DISCLAIMER. THE KIT IS PROVIDED "AS IS," EXCLUSIVE OF ANY WARRANTY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ANY OTHER WARRANTY, WHETHER EXPRESSED OR IMPLIED. THE KIT IS PROVIDED GRATUITOUSLY AND, ACCORDINGLY, PRECISE SHALL NOT BE LIABLE UNDER ANY THEORY FOR ANY DAMAGES SUFFERED BY YOU OR ANY USER OF THE KIT. PRECISE WILL NOT PROVIDE DEVELOPER, ENGINEERING OR ANY TECHNICAL SUPPORT FOR THE KIT AND WILL NOT ISSUE UPDATES, UPGRADES, OR ENHANCEMENTS TO THE KIT.

2. DISCLAIMER OF DAMAGES. SOME STATES AND COUNTRIES, INCLUDING MEMBER COUNTRIES OF THE EUROPEAN ECONOMIC AREA, DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE LIMITATION OR EXCLUSION SET OUT IN THIS PARAGRAPH MAY NOT APPLY TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL PRECISE BE LIABLE TO YOU FOR ANY DIRECT, SPECIAL, CONSEQUENTIAL, INDIRECT OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE KIT, EVEN IF PRECISE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

3. DEVELOPMENT DISCLAIMER. WHERE THE KIT IS AN SDK, THE SDK ALLOWS YOU TO PREPARE PORTLETS WHICH OPERATE IN CONJUNCTION WITH THE LICENSED SOFTWARE. PRECISE SHALL NOT BE RESPONSIBLE FOR YOUR PORTLETS OR ANY DEVELOPMENT AND PROGRAMMING ACTIVITIES UNDERTAKEN BY YOU. UNLESS YOU USE THE APPROPRIATE DEGREE OF SKILL AND CARE IN YOUR DEVELOPMENT AND PROGRAMMING ACTIVITIES, YOUR PORTLETS MAY CAUSE ERRORS OR PROBLEMS IN THE USE OR OPERATION OF THE LICENSED SOFTWARE. YOU MAY USE THE SDK TO DEVELOP AND USE PORTLETS AT YOUR SOLE RISK AND PRECISE SHALL HAVE NO LIABILITY FOR ANY FAILURE OF THE SDK AND/OR THE LICENSED SOFTWARE BASED ON YOUR FAILURE TO PROPERLY DEVELOP, PROGRAM, INSTALL, CONFIGURE AND MONITOR YOUR PORTLET SOLUTION.