Cyberons and NETAPHOR are trademarks of NETAPHOR SOFTWARE, INC.

Cyberonsä For Java

SOFTWARE LICENSE AGREEMENT

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<span style="font: bold 8pt Arial">1. BACKGROUND.</span>

This Software License Agreement ("Agreement") is a legal agreement between you (either an individual or a single entity - "Licensee") and NETAPHOR SOFTWARE, INC. ("Netaphor") for the specific version of the Cyberons ä for Java software product provided to Licensee by Netaphor, which includes computer software and associated media and printed materials, and may include "online" or electronic documentation (collectively the "Software Product”). BY OPENING THIS PACKAGE, OR DOWNLOADING OR INSTALLING THE SOFTWARE PRODUCT TO YOUR COMPUTER, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT OPEN THIS PACKAGE, OR DOWNLOAD OR INSTALL THIS SOFTWARE PRODUCT, AND PROMPTLY RETURN IT UNOPENED TO THE PLACE WHERE YOU OBTAINED IT FOR A FULL REFUND (subject to shipping and handling charges). If you do not agree to the terms of this Agreement, you may not install, copy, except for backup purposes, or use the SOFTWARE PRODUCT. Netaphor is located at 15520 Rockfield Boulevard, Suite E, Irvine, California.

2. OWNERSHIP OF SOFTWARE PRODUCT.

The Software Product is owned exclusively by Netaphor, and is protected by copyright laws and international copyright treaties, as well as other intellectual property laws. This Agreement does not convey to Licensee an interest in or to the Software Product, but only a limited and revocable right of use. The Software Product is licensed (not sold) to you by Netaphor in accordance with the terms of this Agreement.

3. GRANT OF LICENSE.

3.1 Definitions.

3.1.1 “Designated User” means and refers to Licensee if Licensee is an individual. If Licensee is an entity, “Designated User” means and refers to a single, designated employee or consultant of Licensee. Designation by Licensee of the Designated User shall be made at the time a license for the Software Product is purchased. Thereafter, at any time, Licensee may substitute another employee as the Designated User by submitting written notice to Netaphor (e-mail to licenses@netaphor.com is acceptable). At any give time, only a single individual may be the Designated User.

3.1.2 “Designated Computer” means and refers to the single computer (or computer system) designated by Licensee to run, access and operate the Software Product. Designation of the Designated Computer shall be made at the time a license for the Software Product is purchased. Thereafter, at any time, Licensee may substitute another computer (or computer system) as the Designated Computer by submitting written notice to Netaphor (e-mail to licenses @netaphor.com is acceptable). At any give time, only a single computer (or computer system) may be the Designated Computer.

3.2 Regular License.

When a Regular License for the Software Product (as opposed to a Beta/Early Access license) is purchased by Licensee, Licensee is granted the following non-exclusive rights:

3.2.1 Licensee may install the Software Product on the Designated Computer for use by the Designated User.

3.2.2 The Designated User may use the Software Product for the sole purpose of developing Network Management applications (“Network Applications”). Thereafter, such Network Applications may be used by Licensee and/or distributed by Licensee to third parties (including, without limitation, Licensee’s customers).

3.2.3 The Network Applications may include the contents of the Software Product’s \LIB (Library) file. No other portion of the Software Product may be distributed to a third party in any form whatsoever.

3.3 Beta/Early Access License.

When a Beta/Early Access license for the Software Product is obtained by Licensee (either by purchase or on a free evaluation basis), Licensee is granted the following non-exclusive rights:

3.3.1 Licensee may install the Software Product on the Designated Computer for use by the Designated User.

3.3.2 The Designated User may use the Software Product for the sole purpose of evaluating the functions and features of the Software Product. Licensee may not use or distribute any Network Applications developed with the Software Product, and Licensee may not distribute the Software Product (or any portions thereof) in any form whatsoever.

3.3.3 If the Beta/Early Access license was obtained by Licensee free of charge, Licensee may only use the Software Product for a period of ninety (90) days from the date on which Licensee first installed the Software Product, or until the Software Product ceases functioning, whichever occurs first.

4. RESTRICTIONS AND OTHER PROVISIONS.

4.1 Licensee will not and will not knowingly permit any third party to (a) remove, deface, bypass, over-ride or otherwise defeat any product identification, copyright notices, trademarks, restricted rights or other proprietary restrictions, or any license administration or enforcement mechanisms contained in or affixed to the Software Product, (b) use the Software Product for any purpose other than as expressly permitted in this Agreement, (c) reverse engineer, decompile, disassemble, trace or translate the Software Product, or do anything to attempt to discover the Software Product’s source code, (d) prepare any derivative works based on the Software Product, (e) modify, adapt or alter the Software Product, (f) transfer, lease, rent or sell the Software Product as a standalone product or component, or (g) except as expressly permitted by this Agreement, copy, except for backup purposes, the Software Product or transfer, sell, assign, pledge, lease, rent or share Licensee's rights in the Software Product.

4.2 Netaphor reserves the right to alter, modify or change, without prior notice, any aspect or feature of the Software Product.

4.3 If Licensee received the Software Product for evaluation purposes, then the Software Product may cease functioning either at or before the end of the stated evaluation period (which may be as short as 30 days), and any use of the Software Product after the end of the evaluation period, without purchase of a regular license, is strictly prohibited.

5. TERMINATION.

This Agreement is effective upon Licensee’s (a) purchase or acceptance of the Software Product, or (b) the downloading of the Software Product from Netaphor’s web site or other authorized electronic medium, and this Agreement shall continue in effect until terminated by Netaphor. Netaphor may terminate this Agreement upon the breach by Licensee of any material term hereof. Termination of this Agreement by Netaphor shall automatically, and without further action by Netaphor, terminate and extinguish all licenses granted by Netaphor to Licensee under this Agreement. Upon such termination by Netaphor, Licensee agrees to delete the Software Product from the hard drive of the computer that it is installed on and destroy all copies of the Software Product.

6. NO WARRANTIES.

To the maximum extent permitted by law, NETAPHOR expressly disclaims any warranty for the Software Product and any support services provided by NETAPHOR. The Software Product and support services are provided "as is" without warranty of any kind, either express or implied, including, without limitation, the implied warranties of Merchantability or fitness for a particular purpose. The entire risk arising out of use or performance of the Software Product (and ANY update packages) remains solely with Licensee.

7. LIMITATION OF LIABILITY.

LICENSEE AGREES AND ACKNOWLEDGES THAT NETAPHOR’S AND ITS’ SUPPLIER’S TOTAL LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OF ANY TYPE AND STRICT LIABILITY) OR OTHERWISE, ARISING OUT OF OR RELATED TO LICENSEE’S OR ANY OTHER PARTY’S USE OF, OR INABILITY TO USE, THE SOFTWARE PRODUCT OR ANY ACCOMPANYING PRINTED MATERIALS OR DOCUMENTS, OR NETAPHOR’S PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY LICENSEE TO NETAPHOR FOR THE SOFTWARE PRODUCT OR U.S.$5.00. LICENSEE ACKNOWLEDGES THE LICENSE FEES FOR THE SOFTWARE PRODUCT REFLECT THIS ALLOCATION OF RISK.

MOREOVER, AND WITHOUT IN ANY WAY LIMITING THE PRIOR PARAGRAPH, IN NO EVENT SHALL NETAPHOR OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR MULTIPLE DAMAGES WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OF ANY TYPE AND STRICT LIABILITY) OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION) ARISING OUT OF OR RELATED TO LICENSEE’S OR ANY OTHER PARTY’S USE OF, OR INABILITY TO USE, THE SOFTWARE PRODUCT OR ANY ACCOMPANYING PRINTED MATERIALS OR DOCUMENTS, OR NETAPHOR’S PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF NETAPHOR AND ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR IF THE DAMAGES ARE FORESEEABLE.

8. HAZARDOUS OR HIGH RISK ENVIRONMENTS.

Licensee acknowledges that the Network Applications developed with the Software Product are not designed for use in hazardous or high-risk environments such as, but not limited to, operation of nuclear facilities, direct life support, air or space travel, or police, rescue or military operations. Licensee agrees and acknowledges that Netaphor shall have no liability in connection with any use of the Software Product to develop Network Applications for hazardous or high-risk environments.

9. RETURNING SOFTWARE.

During the first thirty (30) days after Licensee obtains the Software Product (the “Initial 30 Day Period”), Licensee may return the Software Product to Netaphor for a full refund of the license fee (minus any shipping and handling charges). No refunds will be provided after the Initial 30 Day Period. If the Software Product is returned, all licenses granted to Licensee under this Agreement shall immediately terminate, and Licensee shall immediately stop using the Software Product. Moreover, neither Licensee nor any third party may use any Network Applications previously developed with the returned Software Product. Licensee has the affirmative obligation to ensure that all third parties stop using such Network Applications.

10. COPYRIGHT NOTICE.

All Network Applications and related documentation distributed by Licensee shall include the following copyright notice, or a similar copyright notice, in a reasonably conspicuous location: "Copyright 2002 by NETAPHOR SOFTWARE, INC."

11. ENTIRE AGREEMENT AND AMENDMENTS.

This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemplated agreements or representations, written or oral, of the parties pertaining to the subject matter. This Agreement may not be modified except in a written amendment signed by authorized representatives of both parties.

12. SEVERABILITY.

If any provision of this Agreement is declared to be illegal, unenforceable or void, the remainder of this Agreement shall be enforced to the extent permitted by law, and the illegal, unenforceable or void provision shall be replaced with a mutually acceptable provision which comes closest to the intention of the parties underlying the original provision.

13. APPLICABLE LAW.

This Agreement shall be interpreted, construed and governed by the laws of the State of California without regard to its conflict of law rules. The parties hereby irrevocably submit to the exclusive jurisdiction and venue of the state and federal courts sitting in Orange County, California for the purpose of all legal proceedings arising out of or relating to this Agreement.

14. WAIVER.

No delay or omission by either party to exercise any right or remedy hereunder shall be construed as a waiver of such right or remedy. Further, the waiver by either party of a particular breach of this Agreement by the other party shall not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of the Agreement.

15. PREVAILING PARTY.

In the event a dispute arising under this Agreement results in litigation, the non-prevailing party shall pay the prevailing party’s reasonable litigation costs, including, without limitation, reasonable attorneys' fees.

16. COMPLIANCE WITH U.S. EXPORT LAWS.

LICENSEE UNDERSTANDS, AGREES AND WARRANTS THAT IT SHALL NOT TRANSFER, DIVERT, EXPORT OR RE-EXPORT TO ANY THIRD PARTY ANY ITEM PROVIDED TO LICENSEE UNDER OR IN CONNECTION WITH THIS AGREEMENT, EXCEPT AS EXPRESSLY AUTHORIZED BY THE U.S. GOVERNMENT IN ACCORDANCE WITH U.S. EXPORT CONTROL LAWS.