OMNIS STUDIO END USER LICENSE AGREEMENT THANK YOU FOR CHOOSING THE ACCOMPANYING OMNIS(r) PRODUCT (TOGETHER WITH ITS ACCOMPANYING DOCUMENTATION, "OMNIS"). THIS LICENSE IS THE LEGAL AGREEMENT ("AGREEMENT") BETWEEN YOU, THE CUSTOMER WHO HAS ACQUIRED OMNIS ("YOU") AND RAINING DATA CORPORATION ("RAINING DATA"). PLEASE READ THIS AGREEMENT CAREFULLY. RAINING DATA IS ONLY WILLING TO PROVIDE OMNIS TO YOU ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. YOU ACCEPT THIS AGREEMENT BY INSTALLING OR USING OMNIS. IF YOU DID NOT ACQUIRE OMNIS FROM RAINING DATA, OR AN AUTHORIZED RAINING DATA DISTRIBUTOR OR AFFILILATE ("AUTHORIZED DISTRIBUTOR"), THEN YOU MAY NOT ENTER INTO THIS AGREEMENT OR USE OMNIS. NO OTHER PARTY HAS THE RIGHT TO TRANSFER A COPY OF OMNIS TO YOU. RAINING DATA'S AUTHORIZED DISTRIBUTORS AND AFFILIATES ARE LISTED ON ITS WEB SITE. IF YOU ARE UNWILLING TO ACCEPT THIS AGREEMENT, DO NOT USE OMNIS. IF YOU HAVE ALREADY PAID FOR OMNIS WITHOUT HAVING A PRIOR OPPORTUNITY TO REVIEW THIS AGREEMENT, AND ARE NOW UNWILLING TO AGREE TO THESE TERMS, YOU MAY, WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH YOU ACQUIRED OMNIS, RETURN IT TO RAINING DATA, OR THE AUTHORIZED DISTRIBUTOR FROM WHOM YOU ACQUIRED IT, ALONG WITH ITS ORIGINAL PACKAGING AND PROOF-OF-PURCHASE, FOR A FULL REFUND. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, RAINING DATA AUTHORIZED DISTRIBUTORS DO NOT ACT AS AGENTS OF RAINING DATA, AND SUCH DISTRIBUTORS MAY NOT ENTER INTO ANY CONTRACTS ON BEHALF OF RAINING DATA. NO AUTHORIZED DISTRIBUTOR HAS THE AUTHORITY TO MODIFY THE TERMS OF THIS AGREEMENT. ================================================== A WORD TO OUR VALUED CUSTOMERS. Our goal is to help you succeed using Omnis. We have crafted this Agreement to provide you the flexibility that you need to successfully develop and distribute products using Omnis, while at the same time protecting Raining Data's intellectual property. If you need to use Omnis in a manner that is not permitted under this Agreement, please contact Raining Data to discuss alternative licensing arrangements. If you have any questions or concerns about this license, please contact Raining Data at license@rainingdata.com. 1. OWNERSHIP. Omnis (exclusive of its physical packaging) is licensed. It is not sold, even if for convenience we make reference to words such as "sale" or "purchase." Omnis is protected by copyrights and other intellectual property rights. You agree that all worldwide copyright and other intellectual property rights in Omnis and all copies of Omnis, however made, are the exclusive property of Raining Data and its suppliers. All rights in Omnis not expressly granted to you in this Agreement are reserved by Raining Data and its suppliers. There are no implied licenses under this Agreement. 2. HOW OMNIS IS LICENSED. Omnis is a tool that enables you to develop and deploy Applications. If you want to use Omnis to develop Applications, then you must purchase, from Raining Data or its Authorized Distributor, one or more development licenses under Section 4. If you want to use Omnis to deploy Applications on a production or "runtime" basis, then you must purchase, from Raining Data or its Authorized Distributor, one or more deployment licenses under Section 5. You may only acquire a deployment license for a particular version of Omnis if you have also acquired at least one development license for that same version. If you are a commercial developer, or you are otherwise developing applications for distribution to third parties, please see Section 6 for details on distributing deployment licenses to your customers. The term "Application" means a program that you create using Omnis that has substantial added value and functionality over Omnis, is not merely a set or subset of the functions provided by Omnis, and that does not directly expose the interfaces of Omnis to end users of the Application. Applications do not include programs that substantially duplicate the capabilities of or compete with Omnis. 3. ACTIVATION CODES. For each license granted to you under this Agreement, other than evaluation licenses, Raining Data or its Authorized Distributor will provide you with a unique activation code for use by you or the end customer who ultimately uses your Application ("Customer") and, in some cases, a license certificate describing the license that you have acquired. The activation code, together with any accompanying license certificate, is your proof-of-license. Retain a copy for your records. To install or use a copy of Omnis, you or your Customer may be required to enter an authorized activation code. If you have acquired a license for distribution to a Customer, you must deliver the corresponding activation code, along with a copy of any accompanying license certificate, to that Customer. Once an activation code is used - either by you or your Customer - to install Omnis under a particular license, it cannot be transferred to another party or used under a different license. If a particular license granted under this Agreement is for a specified term, then the activation code issued under that license will expire - and the corresponding copy of Omnis will no longer continue to operate - upon expiration of the limited license term. IN THAT CASE, YOU WILL NO LONGER BE ABLE TO ACCESS ANY DATA OR PROGRAMS THAT YOU HAVE CREATED USING THAT COPY OF OMNIS. To continue using Omnis after such expiration, you will need to purchase a new license from Raining Data, if available, at then-current prices and terms. 4. DEVELOPMENT LICENSE. For each development license that you purchase under this Agreement, Raining Data grants you a personal, non-exclusive, non-transferable, limited license during the term of this Agreement to install and execute the accompanying version of Omnis, in object code format only on computers in your possession solely for use by you (if you are an individual) or by one (1) person in your employ (if you are an entity) to develop, test, support and maintain Applications, so long as you comply with this Agreement. You may not distribute, sublicense or otherwise transfer development licenses, and you may not use Omnis under this Section 4 to deploy an Application on a production basis. 5. DEPLOYMENT LICENSES. 5.1 Two Types of Deployment Licenses. You must purchase one or more deployment licenses to run each Application that you create using Omnis. There are two types of deployment licenses available under this Agreement, the Client Access license and the WebApp Server license. These are described in Sections 5.3 through 5.6. The type of deployment license that you purchase will be indicated on the applicable invoice or license certificate provided to you by Raining Data or its Authorized Distributor. You may purchase a Client Access license on either a single-user or multi-user basis. If you purchase a multi-user Client Access license, then you must purchase license rights for each User (defined below) who uses or otherwise accesses an Application, whether directly or via remote access tools, regardless of how frequent that access may be. You may purchase a WebApp Server license on either a per-concurrent-user basis or a per-CPU basis. If your Application requires a different deployment model, please contact Raining Data or an Authorized Distributor in your territory to discuss alternative license arrangements. 5.2 Why Are Deployment Licenses Required? Applications require the Omnis Runtime Environment to operate on a deployment basis. The "Runtime Environment" is a subset of Omnis that does not include functionality for creating or modifying Applications. Like the rest of Omnis, the Runtime Environment is proprietary to Raining Data, and therefore it may not be installed or executed without a deployment license. 5.3 Client Access License - Single-User. For each single-user Client Access license that you purchase under this Agreement, Raining Data grants you a non-exclusive, non-transferable, limited license to install and execute the Runtime Environment, in object code format only, on one (1) single-user computer for use by one (1) User (defined below) with one (1) Application only, so long as you comply with this Agreement. 5.4 Client Access License - Multi-User. For each multi-user Client Access license that you purchase under this Agreement, Raining Data grants you a non-exclusive, non-transferable, limited license to install and execute the Runtime Environment for use with one (1) Application only on as many single-user computers as the maximum number of Users authorized by Raining Data under that license, so long as you comply with this Agreement. The total number of Users over any time period who use or otherwise access the Runtime Environment under such license, whether directly or via remote access tools, may not exceed the maximum number of authorized Users. The maximum number of authorized Users is that number specified in your multi-user Client Access license. 5.5 WebApp Server License - Per CPU. You may purchase WebApp Server licenses under this Agreement on a per-CPU or per-User basis. For each WebApp Server license that you purchase on a per-CPU basis, Raining Data grants you a non-exclusive, non-transferable limited license to install and execute the Runtime Environment, in object code format only, on one (1) application server or Web server for use by an unlimited number of Users with one (1) Application only, so long as the total number of CPUs on that server does not exceed the number authorized by Raining Data under that WebApp Server license and so long as you comply with this Agreement. The number of authorized CPUs will be expressly indicated on the applicable license certificate provided to you by Raining Data or its Authorized Distributor. If a number of permitted CPUs is not so indicated, then that number will be one (1). 5.6 WebApp Server License - Per User. For each WebApp Server license that you purchase under this Agreement on a per-User basis, Raining Data grants you a non-exclusive, non-transferable limited license to install and execute the Runtime Environment, in object code format only, on one (1) application server or Web server for use with one (1) Application only, so long as the total number of Users of the Application does not exceed, at any one time, the number of concurrent users authorized by Raining Data under that WebApp Server license and so long as you comply with this Agreement. 5.7 Users. "User" means an individual, program or device that ultimately makes use of the data, functionality or services of the Runtime Environment through an Application. If your license is granted on a per-User basis, then the maximum number of authorized Users under that license will be expressly indicated on the applicable license certificate provided to you by Raining Data or its Authorized Distributor and, if not so indicated, will be one (1). When you install the Runtime Environment under such licenses, it will be configured to block access by Users in excess of this number. 5.8 No Multiplexing. Multiplexing is the use of hardware or software to allow multiple Users to access a Runtime Environment concurrently while sharing a session or otherwise consuming only a single license seat. Multiplexing is not permitted under this Agreement. Regardless of how many tiers of hardware or software exist between Users and a Runtime Environment, your Applications must always provide a separate persistent session for each User who accesses the Runtime Environment, and you may only have as many sessions open at one time as the number of Users authorized by Raining Data for the license under which that Runtime Environment is used. You may not combine transactions from multiple users onto a single session. Note that these multiplexing restrictions do not apply to Web Server licenses purchased on a per-CPU basis. If you are concerned about how to apply these multiplexing license restrictions for a particular Application, please contact Raining Data or an Authorized Distributor in your territory for clarification or to request an alternative license arrangement. 6. DISTRIBUTION. 6.1 Distribution Is Permitted. Raining Data grants you a personal, non-exclusive, non-transferable license to distribute the Runtime Environment, in object code format only, with Applications that you create under this Agreement, so long as you purchase and sublicense one or more deployment licenses for each Application that you distribute to each Customer. 6.2 Working with Channel Partners. Under Section 6.1, you may distribute Runtime Environment through distributors, VARS and OEMs and other resellers, so long as each copy of the Runtime Environment that you distribute is bundled with or incorporated into one of your Applications, you make it clear to your resellers that the Runtime Environment is licensed not sold, and you require your resellers to comply with all of the obligations imposed on you under this Agreement with respect to the Runtime Environment. 6.3 Contracts with Customers. Before you or your reseller provides a copy of the Runtime Environment to a Customer, you or your reseller, as the case may be, must enter into a written, legally-enforceable sublicense agreement with that Customer which: (a) expressly affirms that the Runtime Environment is "licensed not sold"; (b) grants the Customer a nontransferable, nonexclusive license install and execute the Runtime Environment for use with a single Application in accordance with the corresponding deployment license or licenses that you have purchased for that Customer; (c) prohibits the Customer from distributing, sublicensing, leasing, renting, assigning, or otherwise transferring the Runtime Environment or any activation code; (d) prohibits the Customer from decompiling or disassembling the Runtime Environment except to the extent expressly permitted by applicable law and then only for the limited purposes specified in that law; (e) prohibits the Customer from using the same activation code to install the Runtime Environment in any manner that exceeds the scope of the deployment license under which the activation code is provided; (f) effectively excludes for the express benefit of Raining Data all warranties and conditions, express and implied, including warranties or conditions of title, and non-infringement, and implied warranties or conditions of merchantability and fitness for a particular purpose; and (g) effectively excludes for the express benefit of Raining Data all liability for damages, including direct, indirect, special, incidental and consequential damages (such as lost profits) or other damages of any kind arising out of the use of Applications or the Runtime Environment. Such sublicense agreements must name Raining Data as an express third party beneficiary. You must enforce such agreements with the same diligence that you use to enforce similar agreements for other software that you distribute, but in no event less than reasonable efforts. Customers need not physically sign the sublicense agreement unless a signature is required under applicable law to create an enforceable contract. 6.4 Distribution Restrictions. If you distribute the Runtime Environment, then you must include any and all third party license files. You will not: (a) grant (or authorize your resellers to grant) a Customer rights to use the Runtime Environment that are broader than the deployment license you have purchased for distribution to that Customer; (b) distribute, sublicense, lease, rent, assign, or otherwise transfer Omnis to any other party except as expressly permitted in Section 6.1; or (c) distribute any component of Omnis that can be used to develop an Omnis Application. You must provide a valid copyright notice in your name on each Application that you distribute with the Runtime Environment. The distribution rights of Section 6.1 are personal to you and cannot be sublicensed, assigned or otherwise transferred. 6.5 Relationship with Customers. You will be solely responsible for your Applications and any services provided to your Customers. Raining Data and its Authorized Distributors make no warranty, and have no obligation to provide support or other services to your Customers. You will defend and indemnify Raining Data and its suppliers and Authorized Distributors from any claims or liabilities arising from or related to your Applications or Customers, including claims based on the performance or non-performance of the Runtime Environment. You must enter into transactions with your Customers on your own account and not on behalf of Raining Data. 6.6 Open Source. You may not incorporate into any Application that you distribute to others any "open source" or other code that is licensed to you by a third party under the condition or requirement that any programs incorporated into, derived from or distributed with such code be disclosed or distributed in source code form or distributed at no charge. 7. Other License Rights. 7.1 Plug-Ins. Omnis includes plug-in components for use with Internet browser software. These plug-in components are specifically designated in the technical documentation that accompanies Omnis. So long as you comply with this Agreement, Raining Data grants you a non-exclusive limited license during the term of this Agreement to install and execute (and sublicense your Customers to install and execute) such browser plug-ins on single-user computers for the sole purpose of enabling browser software resident on such computers to communicate with Applications deployed on a Runtime Environment that is resident on a separate computer. The rights granted under this Section do not expand the number of individuals who may use the Runtime Environment under a particular deployment license. 7.2 Evaluation License. If you have received a copy of Omnis from Raining Data or its Authorized Distributor, but have not yet purchased a license to use Omnis, then Raining Data grants you a personal, non-transferable, non-exclusive, limited license to install and execute Omnis, in object code format only, for your own internal use solely for purposes of evaluating Omnis for no more than sixty (60) days. You will not be required to enter an authorization code to install and use Omnis under this evaluation license. When Omnis is used on an evaluation basis, it will not have the full functionality described in its accompanying documentation. 7.3 Demonstration License. Raining Data may at your request grant you a deployment license in accordance with Section 5 on a demonstration basis. Runtime Environments deployed under a demonstration deployment license may have limited features and functionality. You may sublicense such demonstration licenses to your Customers and prospective Customers for the sole purpose of allowing them to evaluate an Application for up to forty-five (45) days from the date of installation or such shorter time period as specified by Raining Data. UPON EXPIRATION OF THIS TIME PERIOD, THE RUNTIME ENVIRONMENT WILL STOP WORKING AND YOU AND YOUR CUSTOMERS WILL NO LONGER BE ABLE TO USE THE APPLICATION UNLESS YOU PURCHASE A REGULAR DEPLOYMENT LICENSE AT RAINING DATA'S THEN-CURRENT TERMS AND PRICES. 7.4 Backup Copies. You may make a reasonable number of backup copies of Omnis during the term of this Agreement so long as you do not use such backup copies for any purpose other than to replace the original copy of Omnis provided to you by Raining Data if such copy is damaged or destroyed. You may make and authorize others to make a reasonable number of backup copies of the Runtime Environment solely to replace copies of Applications that are damaged or destroyed. 8. ADDITIONAL RESTRICTIONS AND CONDITIONS. 8.1 Prohibited Uses of Omnis. You may not do (or permit others to do) any of the following: (a) modify, adapt, alter, translate, or create derivative works of Omnis; (b) merge or otherwise integrate Omnis with any external components or software, other than an Application; (c) reverse engineer, decompile or disassemble Omnis, or otherwise attempt to derive the source code of Omnis except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (d) remove, alter, or obscure any confidentiality or proprietary notices (including copyright and trademark notices) of Raining Data or its suppliers on Omnis, including any copies of Omnis that you are permitted to make under this Agreement; (e) use the Runtime Environment as a tool to create other Omnis Applications; (f) circumvent, or provide or use a program intended to circumvent, technological measures (such as activation codes) that control installation or use of Omnis; (g) use an activation code to install or use copies of Omnis in any manner that exceeds the scope of the license under which the activation code is provided to you; or (h) otherwise reproduce or use Omnis except as expressly permitted under this Agreement. 8.2 Hosting. You and your Customers may host Applications and Runtime Environments for other parties under a WebApp Server deployment license so long as you do not exceed the usage and other limitations set forth in this Agreement. However, you may not otherwise allow third parties to access or use the other functions of Omnis (including the development functions) whether in a time-sharing, hosted, ASP, service bureau or other arrangement. 8.3 Upgrades. The licenses granted under this Agreement cover any future maintenance releases, upgrades or other releases of Omnis that you may acquire, at then-current prices and terms, from Raining Data and Authorized Distributors unless such releases are subject to a separate license agreement. The provision of upgrades or other new versions or releases does not expand your license rights under this Agreement. If you acquired the accompanying copy of Omnis as an "upgrade" to a previously-installed release (as indicated on the packaging that accompanies Omnis or on the invoice, license certificate or product documentation provided to you by Raining Data or its Authorized Distributor in connection with Omnis, or on the screens displayed by Omnis when it is initially installed), then you may only use the upgrade if you have a valid license to that previously-installed release. Your rights to the previously-installed release terminate once you install the upgrade. 8.4 No Separation or Reuse of Components. You may not break Omnis up into components and install the components on separate computers under a given license, except as provided in Section 7.1. Each deployment license under this Agreement is limited to use with the specific Application on which the Runtime Environment is initially deployed. The Runtime Environment may not be used with a different application, even if the end user ceases use of the initial Application. 8.5 Confidentiality. Technical information provided to you under this Agreement, including APIs (other than published documentation), is confidential and proprietary to Raining Data and may not be disclosed by you to third parties without Raining Data's express permission. 8.6 High Risk Activities. Omnis is not fault tolerant and is not intended for use in high-risk activities. You may not use Omnis, including any Runtime Environment, in the design, construction, operation or maintenance of any nuclear facility or weapon of mass destruction, or for the purpose of aircraft navigation or control or any other activity in which the failure of Omnis could result in loss of human life, personal injury or property damage. 9. SERVICES. There are no services provided under this Agreement. You are responsible for installing Omnis on your computers as permitted under this Agreement. Support, maintenance and other services must be purchased separately. 10. FEES. License fees are subject to change. Please consult Raining Data or its Authorized Distributor as to current fees before placing an order. All license fees are non-refundable and non-cancelable except as expressly provided in this Agreement and do not include shipping, sales or use tax, withholding tax, excise tax, VAT or customs duties, all of which you are responsible for paying above and beyond the license fees due to Raining Data or its Authorized Distributor. 11. LIMITED WARRANTY. Raining Data warrants to you, the original purchaser, and to no one else, that, for a period of thirty (30) days after the initial delivery of Omnis to you, the media, if any, on which Omnis is provided to you will be free of defects in materials and workmanship. Your exclusive remedy for breach of this limited warranty is that Raining Data will replace any defective media that you return to Raining Data (or the Authorized Distributor from whom you acquired Omnis) within the thirty (30) day warranty period. Any replacement media will be warranted as provided in this Section for the remainder of the original thirty (30) day warranty period or ten (10) days whichever is longer. This limited warranty does not apply to damage resulting from misuse, abuse or neglect. This limited warranty does not apply to any supplements or updates to Omnis that are provided to you after expiration of the thirty (30) day warranty period. 12. DISCLAIMER OF WARRANTY. EXCEPT FOR THE EXPRESS LIMITED WARRANTY OF SECTION 11, OMNIS IS PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND. RAINING DATA HEREBY EXCLUDES AND DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, RESULTS, EFFORTS OR QUIET ENJOYMENT. THERE IS NO WARRANTY THAT OMNIS IS ERROR-FREE OR WILL FUNCTION WITHOUT INTERRUPTION. YOU ASSUME THE ENTIRE RISK ARISING OUT OF THE PERFORMANCE OR USE OF OMNIS. TO THE EXTENT THAT RAINING DATA MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. 13. LIMITATION OF LIABILITY. IN NO EVENT WILL RAINING DATA OR ITS AUTHORIZED DISTRIBUTORS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF OR INABILITY TO USE OMNIS, EVEN IF RAINING DATA OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY OF RAINING DATA AND ITS AUTHORIZED DISTRIBUTORS IN CONNECTION WITH THIS AGREEMENT AND OMNIS, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF LICENSE FEES THAT YOU PAID TO USE OMNIS FOR THE PARTICULAR LICENSE UNDER WHICH LIABILITY HAS ARISEN (NOT INCLUDING FEES FOR SERVICES OR PRODUCTS OTHER THAN OMNIS). THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMIT. YOU ACKNOWLEDGE THAT THE LICENSE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT RAINING DATA WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NO LICENSOR OR OTHER SUPPLIER OF RAINING DATA WILL HAVE ANY LIABILITY TO YOU, WHETHER IN CONTRACT, IN TORT OR OTHERWISE UNDER THIS AGREEMENT OR IN RELATION TO OMNIS. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION WILL APPLY EVEN IF AN EXCLUSIVE REMEDY UNDER THIS AGREEMENT HAS FAILED OF ITS ESSENTIAL PURPOSE. 14. TERMINATION. This Agreement will remain in effect until the expiration of the copyrights in Omnis or until terminated as provided below. If a particular license granted to you is for a limited term (as indicated on the packaging that accompanies Omnis or on the applicable invoice, license certificate or other product documentation provided to you by Raining Data or its Authorized Distributor in connection with Omnis, or on the screens displayed by Omnis when it is initially installed), then that license terminates upon expiration of that term. You may terminate this Agreement at any time and for any reason, by giving written notice to Raining Data. Raining Data may terminate this Agreement, effective immediately upon written notice to you if you (a) fail to pay any portion of the license fees when due and fail to cure such non-payment within thirty (30) days after receipt of notice of same, or (b) if you otherwise breach any provision of this Agreement. Upon expiration or termination of this Agreement, you must erase or otherwise destroy all copies of Omnis other than copies of the Runtime Environment that you have distributed to Customers in accordance with this Agreement, and your rights hereunder will immediately end. Notwithstanding the foregoing, Sections 1, 3, 6.5, 8, 12, 13, 15, 16, and 17 will survive expiration or termination of this Agreement for any reason. The termination of this Agreement will not affect the authorized sublicense rights granted by you to Customers to use the Runtime Environment in or with Applications that you provide, so long as you or your Customers have paid the applicable deployment license fees. 15. THIRD PARTY SOFTWARE PROGRAMS. Omnis contains or may be accompanied by certain open source and other programs ("Third Party Programs") licensed by third party developers ("Third Party Developers"), including the Jikes program supplied by International Business Machines Corporation ("IBM") and other third-party contributors. Copyright notices for Third Party Programs will be provided in Omnis' "About" screen or in the documentation that accompanies Omnis. Certain Third Party Programs are subject to separate third-party license terms as specified by their respective Third Party Developers, and these terms are included in the documentation provided with Omnis. By using Omnis, you agree to comply with these third-party license terms for the benefit of the applicable Third Party Developer. Subject to any applicable third-party license terms, your use of Third Party Software contained in Omnis is subject to this Agreement. Notwithstanding any provision in this Agreement to the contrary, the following terms will apply to IBM's Jikes program: IBM AND ITS CONTRIBUTORS PROVIDE THEIR RESPECTIVE THIRD PARTY PROGRAMS TO YOU ON AN "AS IS" BASIS, AND EACH DISCLAIMS ANY EXPRESSED OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL IBM OR ITS CONTRIBUTORS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) WHETHER IN CONTRACT, STRICT LIABILITY OR TORT ARISING IN ANY WAY OUT OF THE USE OF THE THIRD PARTY PROGRAMS. THE PROVISIONS OF THIS SECTION ARE SOLELY FOR THE BENEFIT OF IBM AND ITS THIRD PARTY CONTRIBUTORS AND DO NOT LIMIT OR AFFECT RAINING DATA'S OBLIGATIONS OR LIABILITIES UNDER THIS AGREEMENT IN ANY WAY. Any provision of this Agreement that differ from those set forth in this paragraph are made solely by Raining Data do not obligate IBM or its third party contributors. A copy of the source code for the IBM Jikes program is available upon without charge via electronic transmission by submitting a written request to Raining Data, at the address set forth below, to the attention of the Legal Department. 16. GENERAL. 16.1 Trademarks. No rights to use Raining Data's logos or other trademarks are granted under this Agreement. If you would like to use Raining Data's logos or other trademarks, please contact Raining Data to discuss becoming an authorized value-added reseller. 16.2 Choice of Law. If you acquire Omnis directly from Raining Data or from an Authorized Distributor located in the United States, then this Agreement will be governed by the laws of the State of California without giving effect to any choice of law principles that would require the application of the laws of a different country or state. If you acquired Omnis from an Authorized Distributor located outside of the United States, then this Agreement will be governed by the law of the jurisdiction where such distributor's principal place of business is located. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (USA) do not apply to this Agreement. 16.3 Compliance with Laws. You will comply with all applicable export and import control laws and regulations in your use of Omnis and, in particular, you will not export or re-export Omnis, including the Runtime Environment, without all required government licenses. You will defend, indemnify, and hold harmless Raining Data and its suppliers and Authorized Distributors from and against any violation of such laws or regulations by you. If any approval or registration of this Agreement, or any sublicense under this Agreement, is required with government authorities where you reside, operate or distribute Applications, then you will secure such approval or registration at your own expense as a condition to your right to use or distribute Omnis under this Agreement. 16.4 Records. Raining Data is entrusting you to keep track of the sublicenses that you grant to your Customers. Therefore, during the term of this Agreement and for one (1) year after its expiration or termination, you will keep reasonably complete records of your distribution of the Runtime Environment (including the names and addresses of third parties to whom you distribute the Runtime Environment) and will permit Raining Data or its representatives to review and verify those records to ensure compliance with this Agreement, unless such review is prohibited by applicable law, including any privacy or other law that restricts your ability to share personally-identifiable information. Raining Data will give you at least ten (10) days advance notice of any such review and will conduct the same during normal business hours in a manner that does not unreasonably interfere with your normal operations. Raining Data will treat your records as your confidential information. 16.5 Relationship between the Parties. The parties are independent contractors and neither party is the agent, partner, employee, fiduciary or joint venturer of the other party under this Agreement. You may not act for, bind, or otherwise create or assume any obligation on behalf of Raining Data. 16.6 Assignments. You may not assign or transfer, by operation of law or otherwise, any of your rights under this Agreement to any third party without Raining Data's prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void. Raining Data may freely assign its rights or delegate its obligations under this Agreement. 16.7 Language. This Agreement is in the English language, and its English language version will be controlling over any other translation except as otherwise required by applicable law. 16.8 Remedies. Except as otherwise provided in this Agreement, the parties' rights and remedies under this Agreement are cumulative. You acknowledge that Omnis contains valuable trade secrets and proprietary information of Raining Data and its suppliers, that any actual or threatened breach by you of this Agreement by you will constitute immediate, irreparable harm for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive. 16.9 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. 16.10 Severability. If any provision of this Agreement is held unenforceable by a court, such provision may be changed and interpreted by the court to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, you agree that Section 13 will remain in effect notwithstanding the unenforceability of any other provision of this Agreement. 16.11 Entire Agreement. This Agreement constitutes the final and entire agreement between the parties regarding the subject of this Agreement and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both parties. The terms of any purchase order or similar document submitted by you to Raining Data or its Authorized Distributor will have no effect. 17. INTERNATIONAL PROVISIONS. If by virtue of Section 16.2 ("Choice of Law") or otherwise, the law governing this Agreement is one of the jurisdictions listed below, then the provisions set forth below that jurisdiction will apply to this Agreement notwithstanding any contrary provision in Sections 1-16: AUSTRALIA Limitation of Liability. Where any applicable legislation implies any term, condition or warranty into this Agreement, and that legislation or any other legislation renders void or prohibits provisions excluding or modifying the application of, exercise of or liability under such implied term, condition, warranty or remedy, Raining Data's liability for any breach of such imposed term, condition or warranty or under such remedy, will be limited at Raining Data's option in any one or more of the ways permitted in that legislation including, where so permitted the ways set out in clauses (a) or (b), as applicable. (a) If the breach of an implied term relates to goods, Raining Data may elect any one or more of the following remedies: (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of such goods; (iii) the payment of the cost of replacing the goods or acquiring goods; or (iv) the payment of the cost of having the goods repaired; and (b) If the breach of an implied term relates to services, Raining Data may elect any one or more of the following remedies: (i) supply of those service again; or (ii) the payment of the cost of having those services supplied again. Consequential Loss. In this Agreement "consequential, indirect, special or incidental damages" includes but is not limited to loss of profits, loss of or damage to goodwill or any other expectation benefit, and any liability to any third party. Contracts with Customers. In addition to the matters set out in section 6.3(a) to (g) of this Agreement, each sublicense agreement entered into by you or your reseller ("Sublicense") must contain: (a) clauses of similar effect as the above Limitation of Liability clauses, and an exclusion of liability for "consequential, indirect, special or incidental damages" (as defined); and (b) the right to assign the Sublicense to Raining Data at any time. You agree that upon request you will assign your rights under any Sublicense to Raining Data. CANADA Language. The parties to this Agreement have expressly required that the present Agreement and its Exhibits be drawn up in the English language. / Les parties aux presents ont expressement exige que la presente convention et ses Annexes soient redigees en langue anglaise. EUROPEAN UNION Reverse Engineering. Notwithstanding the provisions against reverse engineering set forth in Section 8 above, you may reverse engineer, decompile, disassemble or otherwise attempt to derive the source code of Omnis only as expressly and strictly permitted by the applicable laws implementing Articles 5 and 6 of European Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, and then only for the limited purposes of achieving interoperability with other independently-developed computer programs. Before exercising the rights set out in this paragraph, you must first notify Raining Data of your intention to do so, so that Raining Data may first have the opportunity of providing you with the information you need to achieve interoperability. You may not: (i) perform any acts beyond those that are strictly necessary to achieve the interoperability as permitted under applicable law; (ii) supply the information obtained by reverse engineering Omnis to any person to whom it is not necessary to supply it in order to achieve interoperability; (iii) use such information to create a program that is substantially similar in its expression to Omnis or to do any act restricted by copyright; or (iv) retain or use any such information that is not required for use in achieving interoperability. FRANCE Jurisdiction. Any dispute, controversy or claim relating to or in connection with this Agreement and arising between you and Raining Data or its Authorized Distributor will be brought before the French courts. Reverse Engineering. See provisions above under European Union. Liability. Limitation of liability provided in Section 13 will not apply in case of willful misconduct or gross negligence of Raining Data or its Authorized Distributor. Termination. For the avoidance of doubt, when the Agreement is governed by French law, "termination" will have the meaning of "résiliation de plein droit". GERMANY Reverse Engineering. See provisions above under European Union. Nothing in this Agreement will be deemed to exclude or limit your rights under Section 69d and 69e of the Copyright Act. Limited Warranty. Raining Data warrants to you that Omnis and its accompanying documentation will be free from defects. If a deployment or development license granted under this Agreement is for an unlimited term and a one-time license fee, then claims for defects with respect to that license are time barred if not made within one (1) year after the inception of the license or delivery of Omnis, whichever is later. Further, upon delivery of Omnis, you will inspect it and the accompanying documentation for completeness and potential defects and will notify Raining Data immediately of any nonconformity. If you fail to so notify Raining Data, then you may not raise claims for re-delivery, reduction, cancellation, damages or compensation with respect to such defects that would have been obvious upon inspection. The parties agree that Section 377 of the German Commercial Code is applicable. If a development or deployment license granted under this Agreement is for a limited term or requires recurring license fees, then you must notify Raining Data of any obvious defect of Omnis within one (1) week after the defect appears. If you fail to so notify Raining Data, then you may not reduce the license fee pursuant to Section 536, paragraph 1 of the Civil Code. Raining Data will cure defects of Omnis or accompanying documentation within a reasonable time after having received such notice. Disclaimer of Warranty. Neither Raining Data nor its Authorized Distributor warrants fitness for a particular purpose, a particular quality or particular results of Omnis. Omnis is expressly not designed and suitable for High Risk Activities as laid down in Section 8.6. Raining Data and its Authorized Distributors also disclaim all warranty insofar as you change Omnis yourself or through a third person without the expressed consent of Raining Data. This disclaimer does not apply as far insofar as you are entitled to change Omnis according to this Agreement or by law, especially according to Section 536a paragraph 2 of the Civil Code, and you prove that the changes are done professionally and documented comprehensively so that the curing of defects remains possible and reasonable for Raining Data. LIMITATION OF LIABILITY. TOTAL CUMULATIVE LIABILITY OF RAINING DATA AND ITS AUTHORIZED DISTRIBUTORS IN CONNECTION WITH THIS AGREEMENT AND OMNIS, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THREE (3) TIMES THE AMOUNT OF LICENSE FEES THAT YOU PAID TO USE OMNIS FOR THE PARTICULAR LICENSE UNDER WHICH LIABLITY HAS ARISEN (NOT INCLUDING FEES FOR SERVICES OR PRODUCTS OTHER THAN OMNIS). THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMIT. Neither Raining Data nor its Authorized Distributor is liable for damages from defects that have been present at the time of entering into the contract and that occurred without default of either Raining Data or its Authorized Distributor. Neither Raining Data nor its Authorized Distributor is liable for acts of simple negligence except if they are caused by a breach of any substantial contractual obligation (cardinal obligation). Raining Data's liability is limited to the loss that is predictable and that is typical for the contract. Neither Raining Data nor its Authorized Distributor finally is liable for the loss of data and/or programs as far as the loss is based on the fact that you have refrained from making back-up copies and therefore from ensuring that lost data can be restored with reasonable effort. Nothing in this agreement will be deemed to exclude or limit Raining Data or its Authorized Distributor's liability in respect of (1) injuries to or death of any person, caused by willful intent or negligence of Raining Data or its Authorized Distributor, or such parties' representatives, auxiliary persons (executive and non-executive staff) and subcontractors; (2) loss and damages caused by willful intent or gross negligence by Raining Data or its Authorized Distributor, or Raining Data's or its Authorized Distributor's representatives, auxiliary persons (executive and non-executive staff) and subcontractors; (3) any indemnity or guarantee given by Raining Data or its Authorized Distributor under this agreement - although it is expressly not intended to give any indemnity or guarantee; and (4) any liability according to the German Product Liability Act. Assignment. You expressly agree that Raining Data may assign its rights to any third party any time. In case of an assignment you are entitled to terminate this Agreement. In the event of any such termination, you will not be entitled to any refund of the fees paid by you hereunder. Raining Data may delegate its obligations under this Agreement without restrictions. UNITED KINGDOM Liability. Neither Raining Data nor its Authorized Distributor excludes or limits its liability in respect of (a) its willful default or fraud; or (b) death or personal injury resulting from its negligence (within the meaning of section 2 of the Unfair Contract Terms Act 1977 (UK)); or (c) any breach of implied warranties as to title within the meaning of section 12 of the Sale of Goods Act 1979 (UK); or (d) other liability that cannot be excluded by contract. Reverse Engineering. See provisions above under European Union. UNITED STATES Limited Warranty. Some states do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. The limited warranty of Section 11 gives you specific legal rights, and you may also have other legal rights, which vary from state to state. Liability. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the limitations or exclusions of Section 13 may not apply to you. U.S. Government Rights. If you are a branch or agency of the U.S. Government, then you acknowledge that Omnis is a "commercial item" as that term is defined at 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. Any technical data provided with Omnis is commercial technical data as defined in 48 C.F.R. 12.211. Consistent with 48 C.F.R. 12.211 through 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, and 48 C.F.R. 252.227-7015, all U.S. Government end users acquire Omnis with only those rights set forth in this Agreement. Export Control. Regardless of any disclosure made to Raining Data or its Authorized Distributor of an ultimate destination of Omnis and accompanying technical documentation, you acknowledge that all such materials are being released or transferred to you in the United States and may be subject to U.S. export control laws and regulations including regulations of the U.S. Bureau of Industry and Security. Venue. Any legal action between you and Raining Data or its Authorized Distributor arising out of this Agreement or your use of Omnis must be instituted exclusively in the federal or state courts located in Orange County, California, and you consent to jurisdiction and venue in such courts. * * * * Copyright (c) 2007 Raining Data Corporation 25A Technology Drive Irvine, CA 92618 Visit Raining Data's Web Site at www.rainingdata.com. Omnis is a registered trademark of Raining Data Corporation.