If you do not agree to these terms and conditions, return this package, unused, together with all hardware and documentation provided with the CD ROM or diskettes, to your Software supplier within 30 days. You will receive a whole or fair refund. 1. DEFINITIONS The following definitions apply within this Agreement: Code Generator Module shall mean that feature of the Rapid PLUS Software that automatically generates C and/or Java source code. Code Generator Run Time Fee shall have the meaning set forth in Section 4(b). Generated application Right To Use Fee (RTU), shall have the meaning set forth in Section 4(c). Confidential Information shall mean confidential or other proprietary information that is disclosed by e-SIM to Licensee under this Agreement, including without limitation, software designs and code, product specifications and Documentation, product plans, trade secrets, other confidential business information and any information which is identified by e-SIM as confidential or which is provided orally and is identified as confidential within thirty days thereafter by written confirmation. Confidential Information shall not include information which: (i) is or becomes public knowledge without any action by, or involvement of, Licensee; (ii) is already in Licensee's possession on a non-confidential basis from a source other than e-SIM or its agents, provided that such information was not the subject of a confidentiality agreement with, or contractual, legal or fiduciary obligation of confidentiality to e-SIM or another party; (iii) is disclosed by Licensee with the prior written approval of e-SIM; or (iv) is disclosed pursuant to any judicial or governmental order, provided that Licensee gives e-SIM sufficient prior notice to contest such order. Department shall mean the department within the Licensee where use of the Licensed Software is permitted, at a specific site, as specified in the license order form. Documentation shall mean written materials relating to the Licensed Software provided to Licensee hereunder. Individual Software User shall mean each employee of Licensee who is permitted use of the Licensed Software in accordance with the terms herein. Intellectual Property Rights shall mean all forms of intellectual property rights and protections that may be obtained for, or may pertain to, the Licensed Software, Confidential Information and Documentation, including without limitation, all right, title and interest arising under U.S. common and statutory law or the laws of other countries to all: (i) patents and all filed, pending or potential applications for patents, including any reissue, reexamination, division, continuation or continuation-in-part applications throughout the world now or hereafter filed; (ii) trade secret rights and equivalent rights; (iii) copyrights, other literary property or moral rights, whether or not protected by copyright or as a mask work; and (iv) proprietary indicia, trademarks, trade names, service marks, symbols, logos and/or brand names. License shall have the meaning set forth in Section 2. License Fees shall mean the Code Generator Run Time Fee and the Rapid PLUS License Fee. Licensed Software shall mean the Rapid PLUS Software and the Rapid Embedded Kernel Software and any revisions, bug fixes or corrections thereto distributed by e-SIM to Licensee free of charge and for the purposes of Sections 2,3,11,12,13,14 and 16, shall include any Third Party Software. Network Version shall mean a version of the Rapid PLUS Software which may be used simultaneously by a number of Individual Software Users on a local network, in such number as may be specified in the license order form. Rapid Embedded Kernel Software shall mean the software required on a target embedded system to read and manipulate the source code generated by the Code Generator Module to execute the functionality of the embedded system application, in the configuration specified in the license order form. Rapid PLUS License Fee shall have the meaning set forth in Section 4(a). Rapid PLUS Software shall mean the Rapid PLUS software of e-SIM, in the configuration specified in the license order form. Single User Version shall mean a version of the Rapid PLUS Software that may be used by an Individual Software User on a single CPU with one keyboard and one screen. Third Party Software shall mean the DashO-Pro software of PreEmptive Solutions Inc., The Java Development Kit (JDK) of Sun Microsystems Inc., The Java Runtime Environment (JRE) of Sun Microsystems Inc., or any other software package distributed by e-SIM and developed by other companies. 2. LICENSE e-SIM hereby grants to the Licensee a non-exclusive, non-transferable license (without the right to sub-license) (the "License") to (i) use the Licensed Software as set forth below and (ii) use the Documentation on an internal basis to support the use of the Licensed Software: (a) If a Network Version license has been granted, as specified in the license order form, use may be made by the number of Individual Software Users for whom Licensee has paid the applicable License Fees as specified in the license order form. (b) If a Single User Version license has been granted, as specified in the license order form, use may be made by an Individual Software User on a single CPU, with one keyboard and one screen. The CPU may not be connected to a server. The Licensee may transfer the Licensed Software from one CPU to another within the Department, on condition that the Licensed Software is not used on more than one CPU and by more than one Individual Software User at any given time. (c) Use of the Licensed Software is limited to Individual Software User(s) within the Department and there shall be no access to, or use of, the Licensed Software by an Individual Software User in any other department or division of the Licensee. (d) If so specified in the license order form, use of the Licensed Software will be limited to the projects specified in the license order form. (e) The Rapid Embedded Kernel Software may be used solely for the purpose of testing the functionality of source code generated. The Rapid Embedded Kernel Software may not be used for any other purpose, including without limitation embedding, bundling or resale and may not be copied, other than as specified in Section 2(f). Any other use of the Rapid Embedded Kernel Software will require grant of a Rapid Embedded Kernel Software License on such terms as may be agreed between the parties. (f) Licensee shall have the right to make one copy of the Licensed Software for backup purposes. (g) The RapidPlus Reviewer and RapidPlus Plug-In may be used solely for internal purposes. No other commercial or external use may be made of the RapidPlus Reviewer or the RapidPlus Plug-In, including without limitation embedding, bundling, transfer to third parties or resale and may not be copied, other than as specified in Section 2(f). Any other use of the RapidPlus Reviewer and the RapidPlus Plug-In will require grant of a Software License on such terms as may be agreed between the parties. 3. LIMITATIONS ON USE In addition to other restrictions specified herein, the Licensee hereby undertakes: (a) not to copy the Licensed Software in whole or in part other than as permitted under Section 2(f). (b) not to use the Licensed Software other than for the purposes authorized by this Agreement. (c) not to transmit the Licensed Software electronically over a computer network, provided that if the License is for a Network Version, it may be used as permitted under Section 2(a). (d) to refrain from attempting to modify, reverse-engineer, disassemble, reverse assemble or decompile the Licensed Software for any reason whatsoever or otherwise attempt to derive source code from the Licensed Software (other than the C source code generated by the Code Generator Module as defined in the software documentation). (e) not to tamper, modify or affect in any way operation of any protection device, whether of a hardware or software nature, which has been provided with or as part of the Licensed Software to prevent or hinder unauthorized use or access. (f) not to sell, sublicense, transfer, assign, lease, loan, market, distribute or otherwise grant to any other party any rights in respect of the Licensed Software. (g) not to remove any proprietary marks, notices, legends or copyright notices from the Licensed Software. 4. LICENSE FEE In consideration of the grant of the License, the Licensee shall pay the License Fees to e-SIM on or before the Payment Date set forth on the license order form. The License Fees shall be composed of the following: (a) Rapid PLUS License Fee, as set forth on the license order form, which shall be the fee for use of the Rapid PLUS Software as a development tool for preparing applications. (b) Code Generator Run Time Fee, as set forth on the license order form, which shall be a fee for each time that code generated by the Code Generator Module is compiled or linked with the Rapid Embedded Kernel Software (under a separate license to use the Rapid Embedded Kernel Software granted by e-SIM or its authorized distributor) for the purpose of embedding in, or bundling with, an embedded system to be sold, licensed, distributed or otherwise provided to a third party under any grant of right pursuant to any other agreement, whether such embedded system is sold, licensed, distributed or otherwise provided as a separate unit or as part of another product. No run time fee shall be payable for compilation or linkage of generated code with the Rapid Embedded Kernel Software solely for the purpose permitted under Section 2(e). The License Fees do not include any sales, value added, excise, use and similar tax on the Licensed Software which will be charged separately and paid by the Licensee in accordance with the law of any relevant jurisdiction. (c) Generated application Right To Use Fee (RTU), as set forth on the license order form, which shall be a fee for each time that code generated by the Code Generator Module, is used for distribution over the Internet, by CD ROMs or by any other way. 5. TERM Unless terminated pursuant to Section 12 hereof, the term of this Agreement and the License shall be perpetual. 6. OWNERSHIP RIGHTS Licensee hereby recognizes that e-SIM or its licensors, if any, retain all right, title and interest, including all Intellectual Property Rights, to the Licensed Software, Documentation and Confidential Information, including, without limitation, all corrections, modifications and other derivative works of the Licensed Software. Licensee hereby assigns to e-SIM all Intellectual Property Rights it may now or hereafter possess in the Licensed Software, Documentation and Confidential Information, and all derivative works thereof and agrees (i) to execute all documents and take all actions that may be necessary to confirm such rights, and (ii) to retain all proprietary marks, legends and patent and copyright notices that appear on Licensed Software, Documentation and Confidential Information delivered to Licensee by e-SIM and all whole or partial copies thereof. Licensee undertakes not to contest, oppose, or challenge the Intellectual Property Rights. Licensee hereby recognizes that all rights, title and interest to Third Party Software belongs to each third party, respectively. Licensee recognizes that e-SIM does not warranty the Intellectual Property rights of each third party regarding any Third Party Software. 7. LIMITED WARRANTY e-SIM warrants that the Licensed Software will perform substantially in accordance with the Documentation for a period of ninety (90) days after the date of shipment by e-SIM or its distributor, when properly installed and operated in accordance with the terms under which the License is granted hereunder. e-SIM does not warrant that the Licensed Software will meet Licensee expectations or requirements or operate free from error. e-SIM's sole liability under the limited warranty set forth above shall be, in e-SIM's sole discretion, to replace the Licensed Software or to making a reasonable effort to correct any defect in the Licensed Software so that it meets the limited warranty set forth above. Any replacement Licensed Software will be warranted for the remainder of the original warranty period or (30) days, whichever is longer. The limited warranty set forth above applies only to Licensee. e-SIM shall have no obligation to provide warranty services if (i) failure of the Licensed Software is caused by malfunction of non-e-SIM hardware or software, by modification of the Licensed Software not provided by e-SIM, by operator error, or by use of the Licensed Software that is not in accordance with the operating instructions for the Licensed Software; (ii) Licensee fails to immediately inform e-SIM of the defect(s) in writing; (iii) Licensee fails to promptly provide e-SIM all required data, documentation and/or material necessary to assess such defect(s); or (iv) Licensee fails to afford e-SIM sufficient reasonable time and opportunity to correct the possible defect(s). Correction of the Licensed Software in accordance with this warranty shall occur at e-SIM' s facility, unless mutually agreed otherwise. If e-SIM is unable to conform to the Limited Warranty, e-SIM will refund all or a fair portion of the License Fee paid. e-SIM gives no warranty in respect of Third Party Software and shall not be responsible in any way for the performance of such software nor for any bugs, problems or incorrect functionality that was caused by Third Party Software. e-SIM shall have sole discretion to determine which software was responsible for any incorrect functionality. At the request of Licensee, e-SIM may assign such warranty rights that e-SIM may have, under any license agreement regarding Third Party Software, to Licensee, provided, however, that e-SIM makes no warranty as to the extent of such rights or their adequacy. e-SIM shall not be responsible in any way for damage caused by the generated code to the Licensee or to anyone who may receive the generated code from the Licensee as source code, compiled code or in any other format. 8. INTELLECTUAL PROPERTY INDEMNITY e-SIM will defend, at its expense, any suit brought against Licensee, and will pay all damages finally awarded in such suit insofar as such suit is based on a claim that the Licensed Software, as provided to Licensee, infringes any copyright or patent, provided that e-SIM is notified promptly in writing of such claim, and at its expense, is given full and complete authority (including settlement authority), information, and assistance by Licensee for such defense. In the event that the Licensed Software is held in any such suit to infringe such a right, and its use is enjoined, or if, in the opinion of e-SIM, the Licensed Software is likely to become the subject of such a claim, e-SIM, at its own election and expense, will either (i) procure for Licensee the right to continue using the Licensed Software, or (ii) modify or replace the Licensed Software so that it becomes non-infringing while giving equivalent performance. In the event that (i) or (ii) are not, in e-SIM's sole discretion, reasonably practicable, then e-SIM may terminate this Agreement and refund an equitable portion of the License Fees. Notwithstanding the above, in no event shall e-SIM liability under this section exceed the value of all License Fees paid by the Licensee hereunder. e-SIM shall have no liability for any claim based upon: (i) the combination, operation or use of any License Software with equipment, devices or software not supplied or specified by e-SIM; (ii) the alteration or modification of any Licensed Software that was not made by e-SIM; or (iii) the failure by Licensee to use the most current version of the Licensed Software. e-SIM shall have no liability for any claim connected to Third Party Software, and e-SIM makes no warranty nor indemnification regarding any Third Party Software, whether for damages or otherwise. THE FOREGOING STATES THE ENTIRE LIABILITY OF e-SIM TOWARDS LICENSEE AND ANY AND ALL THIRD PARTIES, WHETHER FOR DAMAGES OR OTHERWISE, FOR INFRINGEMENT OF ANY COPYRIGHT, PATENT, TRADE SECRET OR OTHER PROPRIETARY RIGHT BY ANY LICENSED SOFTWARE FURNISHED BY e-SIM HEREUNDER. 9. DISCLAIMERS AND LIMITS OF LIABILITY EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 7 OF THIS AGREEMENT, e-SIM DISCLAIMS ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY e-SIM, ITS DEALERS, DISTRIBUTORS, AGENTS, OR EMPLOYEES SHALL CREATE A WARRANTY, OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY, AND LICENSEE MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. e-SIM MAKES NO WARRANTIES WHATSOEVER REGARDING ANY THIRD PARTY SOFTWARE. e-SIM'S LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), BREACH OF WARRANTY OR ANY OTHER LEGAL THEORY, SHALL BE LIMITED TO THE LICENSE FEES PAID BY THE LICENSEE FOR THE LICENSED SOFTWARE. IN NO EVENT SHALL e-SIM BE LIABLE TO LICENSEE OR ANY OTHER ENTITY FOR LOSS OR INACCURACY OF DATA, LOSS OF USE OF SYSTEMS, THE COST OF REPLACEMENT SOFTWARE OR SYSTEMS, LOSS OF PROFITS OR ANY OTHER ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT e-SIM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 10. CONFIDENTIALITY The Confidential Information contains valuable trade secrets of e-SIM, and licensors of e-SIM, the unauthorized disclosure of which could cause irreparable harm to e-SIM and its licensors. Licensee shall not copy, reduce to writing, or otherwise use, the Confidential Information except as permitted by this Agreement. The Licensee shall restrict access to the Confidential Information to those employees, agents or representatives of Licensee who have a need for access for work permitted hereunder and shall otherwise not disclose the Confidential Information to any third party. Licensee shall secure that all parties to be provided access have been instructed regarding Licensee's obligations to maintain the confidentiality of the Confidential Information, and have executed written agreements with Licensee obligating them to maintain the confidentiality of the Confidential Information, which agreements shall provide protection to e-SIM no less broad than that provided herein. 11. SUPPORT AND MAINTENANCE This Agreement shall not impose upon e-SIM an obligation to maintain or support the Licensed Software supplied to Licensee, or any applications developed by the Licensee by use of the Licensed Software, and e-SIM has no obligation to furnish Licensee with any maintenance, support, assistance, documentation, or information of any nature, beyond that provided with the package containing the Licensed Software. Maintenance and support services will only be provided under a separate agreement, upon such terms, if any, as may be agreed between the parties. 12. TERMINATION This Agreement, and the License, will terminate automatically if the Licensee breaches any of the terms or conditions of this Agreement or the License, unless the breach is capable of being cured and is cured within seven (7) days after notice by e-SIM. On termination of the Agreement, the Licensee shall cease immediately all use of the Licensed Software and the Documentation, destroy all copies of the Licensed Software and the Documentation in its possession and provide e-SIM with a certificate executed by its Chief Financial Officer confirming such destruction. Without derogating from any other remedies of e-SIM arising out of breach or termination of this Agreement, e-SIM shall be entitled to cease providing any warranty, maintenance or other services under this Agreement or any maintenance agreement upon any breach of any of the terms and conditions of this Agreement by Licensee that remains uncured for seven (7) days after notice by e-SIM. The remedies granted herein shall be cumulative. 13. EXPORT CONTROL Licensee agrees to comply with all applicable export laws as amended from time to time, and shall not knowingly export or transmit the Licensed Software, directly or indirectly, to any restricted countries or in any other manner that would violate U.S. laws and regulations as shall from time to time govern the license and delivery of technology abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, and any export administration regulations issued thereunder. 14. GOVERNMENT END USERS If the Licensed Software is acquired by or on behalf of a unit or agency of the United States government, this Section 14 applies. The Licensed Software (a) was developed at private expense, is existing computer software, and no part of it was developed with government funds; (b) is a trade secret of e-SIM or its licensors for all purposes of the Freedom of Information Act; (c) is "restricted computer software" submitted with restricted rights in accordance with subparagraphs (a) through (d) of the Commercial Computer Software Restricted Rights Section at 52.227-19 (or any successor regulations); (d) in all respects, is proprietary data belonging solely to e-SIM or its licensors; and (e) is unpublished, and all rights are reserved under the copyright laws of the United States. For units of the Department of Defense ("DoD"), the Licensed Software is classified as "Commercial Computer Software" and the DoD is acquiring only "Restricted Rights" in the Licensed Software and the Documentation as that term is de fined in paragraph 252.227-7013(c)(l)(ii) of the DoD Supplement to the Federal Acquisition Regulation (or any successor regulations), and use, duplication, or disclosure is subject to restrictions as set forth in subdivision (c)(l)(ii) of the Rights in Technical Data and Computer Software Section at 252.227-7013. Contractor/manufacturer is e-SIM Ltd., 5 Kiryat Mada St., Har Hozvim, Jerusalem, Israel. If the Licensed Software is acquired under a GSA Schedule, the Government has agreed to refrain from changing or removing any insignia or lettering from the Licensed Software or the Documentation, or from producing copies of manuals or media (except for backup purposes). If the Licensed Software is licensed to NASA, NASA's rights in the Licensed Software and the Documentation shall be defined in paragraph 18.52.227-86(d) of the NASA Supplement to the Federal Acquisition Regulations (or any successor regulations). 15. NOTICES All notices, consents, and other communications required or permitted under this Agreement shall be in writing, and shall be sent by courier service or by registered or certified mail, postage prepaid and return receipt requested. Notice may also be given by fax or electronic mail and confirmed the same day by mail. Notices shall be sent to the addresses indicated in the license order form. Either party may change its address by written notice to the other party. Any notice so delivered or mailed shall be deemed to have been received by the addressee seven (7) days after the time and date of its being so mailed. Any notice given by fax or electronic mail and confirmed the same day by mail as aforesaid shall be deemed to have been received by the addressee on the first business day after such fax or electronic mail message was sent. 16. MISCELLANEOUS PROVISIONS (a) Severability If any of the provisions of this Agreement shall be declared void by a court of final jurisdiction, such provisions shall be several and independent from the other provisions of this Agreement, and the validity of the other provisions and of the entire Agreement shall not be affected thereby. (b) Headings The headings of articles, sections and other subsections here of are inserted only for the purpose of convenient reference and it is recognized that the headings may not adequately or accurately describe the contents of the paragraphs which they head. As such, headings will not be deemed to govern, limit, modify or in any other manner affect the scope, meaning or intent of the provisions of this Agreement or any part or portion thereof, nor shall they otherwise be given any legal effect. (c) Public Disclosure e-SIM may list Licensee as a customer of e-SIM in promotional and advertising materials, provided that e-SIM shall not state that Licensee endorses the Licensed Software and shall, at Licensee's request, provide it with a copy of any published materials. (d) Waiver The failure of either party to enforce, in any one or more instances, any of the terms and conditions of this Agreement, shall not be construed as a waiver of the future performance of any such term or condition. Waiver of any term or condition of this Agreement shall only be deemed to have been made if expressed in writing by the party granting such waiver. (e) Applicable Law and Jurisdiction This agreement shall be construed in accordance with and governed by the laws of the State of Israel, without regard to the conflicts of laws provisions thereof. To the full extent permitted by law, the parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, the District Court of Jerusalem, Israel, in any litigation arising under this Agreement. (f) Attorneys Fees If any party to this Agreement shall bring any action or proceeding for any relief against the other, declaratory or otherwise, arising out of this Agreement, the losing party shall pay to the prevailing party a reasonable sum for attorney fees and costs incurred in bringing or defending such action or proceeding and/or enforcing any judgment granted therein, all of which shall be deemed to have accrued upon the commencement of such action or proceeding and shall be paid whether or not such action or proceeding is prosecuted to final judgment. Any judgment or order entered in such action or proceeding shall contain a specific provision providing for the recovery of attorney fees and costs, separate from the judgment, incurred in enforcing such judgment. The prevailing party shall be determined by the trier of fact based upon an assessment of which party's major arguments or positions taken in the proceedings could fairly be said to have prevailed over the other party's major arguments or positions on major disputed issues. For the purposes of this section, attorney fees shall include, without limitation, fees incurred in the following: (1) post-judgment motions; (2) contempt proceedings; (3) garnishment, levy, and debtor and third party examinations; (4) discovery; and (5) bankruptcy litigation. This Section is intended to be expressly severable from the other provisions of this Agreement, is intended to survive any judgment and is not to be deemed merged into the judgment. (g) Assignment Licensee shall not assign or transfer this Agreement or any rights under the License without the prior written consent of e-SIM. Any prohibited assignment or transfer shall be null and void. e-SIM may freely assign or transfer this Agreement or any rights or obligations hereunder. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. (h) Force Majeure e-SIM shall not be liable in damages for failure to perform any obligation hereunder arising out of causes beyond its reasonable control, including, but not limited to, acts of God or of the public enemy, acts of a governmental authority, civil unrest, fires, floods, earthquakes, unusually severe weather, epidemics, quarantine restrictions, strikes, labor disputes or shortages of labor or freight embargoes. (i) Entire Agreement This Agreement and its Schedule are the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior written agreements and understandings (whether written or oral) between the parties hereto, and of which are merged herein. No waiver, alteration, or modification of the provisions of this Agreement or any of the terms of any Licensee purchase order will be valid unless made in writing and signed by a corporate officer of each of e-SIM and Licensee. (j) Survival Sections 1, 3, 6, 9, 10, 12, 13, 14, 15 and 16 shall survive the termination of this Agreement.