PREAMBLE

This Agreement sets out the conditions under which two parties share Confidential Information with each other and in particular how Confidential Information should be treated by the other party, its managing directors, employees, staff, authorised persons and advisors ("Representatives"). Now therefore, the parties agree as follows:

1. DEFINITIONS

1.1 Documentation means, at any time, the current user documentation in any form or media as made available by Company for use in connection with the Software.

1.2 Evaluation License Order means the ordering document pursuant to which Licensee has placed its order for evaluation licenses of the Software.

1.3 Executable Code refers to a form of computer program or portion thereof that can be executed by a computer without further translation or modification. Examples include, without limitation, binary code and code that can be directly executed by an interpreter.

1.4 Proprietary Information refers to the confidential and valuable information of the respective parties, which the parties desire to protect against disclosure to, or competitive use by, third parties, and which is either in written form and designated as proprietary or confidential or is disclosed orally and is designated in writing as being proprietary or confidential within ten (10) business days of disclosure. Proprietary Information of Company includes, without limitation and without the necessity of designation in writing as proprietary information, the Software licensed herein and any unpublished information related to Software of Company, patents, copyrights, trademarks, trade secrets, inventions, research, development, know-how, experience, prices, costs, personnel, customers, as well as methodologies, techniques, expressions, ideas and concepts contained in or expressed within the Software, and the like.

1.5 Software is a data processing program and associated Documentation identified in the Evaluation License Order that Licensee may receive from Company under this Agreement.

1.6 Third Party Software refers to software provided by third parties to the Licensee.

2. THE LICENSE

2.1 Grant of License. Company grants to Licensee a temporary, free of charge, non-exclusive, non-transferable license and right to use the Software, identified in the Evaluation Licence Order, and the related Documentation, during the term of this Agreement, solely for the purpose of evaluating the Software specifically excluding any production or commercial purposes, and for no other purpose without the prior written permission of Company. In addition, Licensee acknowledges and agrees that Company shall have no obligation to provide any services, support or maintenance for the Software under this Agreement.

2.2 Licensee Limitations. Licensee shall not:
(1) otherwise copy, display, transfer, adapt, modify, reproduce or distribute the Software, electronically or otherwise; except one copy for back-up purposes;
(2) reverse assemble, reverse compile or otherwise translate all or part of Software and the Executable Code unless expressly permitted by applicable law without the pos-sibility of contractual waiver;
(3) transfer, distribute or assign any rights granted by this Agreement unless expressly authorized in writing to do so by Company;
(4) sell, resell, lease, sublease, license or sublicense the Software or any copy of it to any party, unless expressly authorized in writing to do so by Company; or
(5) use the Software for any commercial or production use.

2.3 No Implied License. Licensee acknowledges and agrees that this Agreement in no way shall be construed to provide to Licensee, or any third party, any express or implied right to use, copy or otherwise exploit the Software or any portion thereof, (including any intellectual property embodied therein) other than as specifically set forth in this Agreement.

2.4 Third Party Software License. Licensee must have a valid evaluation license to use any Third Party Software used by the Software as it is executing. Certain Software either may contain third party software components or may be third party software products to which certain Specific Terms for Third Party Software apply. The current Specific Terms for Third Party Software may be found at www.facton.com. Licensee warrants that it has full knowledge of such Specific Terms for Third Party Software, and agrees to be bound by and to comply with such terms.

3. NO WARRANTY DISCLAIMER OF LIABILITY

3.1 Disclaimer of Warranties. The software is provided hereunder on an "as is" basis and company and company’s licensors makes no express or implied representations or warranties whatsoever regarding the use, performance, operation or support of the software. By way of example, but not of limitation, company and company’s licensors disclaim all conditions of quality and all warranties, including implied waranties of title, noninfringement, merchantability, and fitness for a particular purpose.

3.2 Limitation of Liability. Company shall be liable without limitation for intent and gross negligence, claims arising from product liability and for injuriies of life, body or health. In case of infringement of cardinal duties company shall be liable also for simple negligence. The liability is limited in such cases to contractually anticipated damages. Otherwise company is not liable for simple negligence. Any further liability for damages is excluded, especially a liability without fault. This section shall survive any expiration or termination of this agreement. Licensee's use of software shall be at licensee’s sole risk. Licensee shall Indemnify and hold company harmless from any and all liabilty or expense, including reasonable attorney’s fees, arising out of this agreement or licensee’s use of the software under this agreement.

4. OWNERSHIP AND TRADE SECRETS, CONFIDENTIALITY

4.1 Companies Ownership Rights. Except for the license granted hereunder, all rights, title and interests, including, but not limited to, all patent, copyright, trademark, trade secret and any other rights in and to the Software, the Documentation and Company Proprietary Information are retained by Company.

4.2 Protection. Licensee shall preserve and reproduce any copyright, patent and trademark notices which may appear in the Software on all copies thereof, in whole or part. Licensee shall keep full, true and accurate records of all copies of the Software, which records shall be available for audit by Company. Licensee shall not provide, disclose or transmit any Software, nor any results or tests or benchmarks related to the Software, or copy thereof, in whole or part, without the prior written consent of Company.

4.3 Confidentiality. Licensee and Company shall each safeguard the other's Proprietary information in the same manner as they safeguard their own Proprietary Information. The terms and conditions and the specific activities and the results during the evaluation, but not the existence of this Agreement shall be treated as Company Proprietary Information.

4.4 Nondisclosure. Licensee shall, in perpetuity, make reasonable efforts to keep confidential the Software, the Documentation, or any Proprietary Information and to not disclose such to any third party. Licensee shall use reasonable diligence, in no event less than that degree of care used by Licensee to protect its own Proprietary Information and confidential data, to protect the Software, Documentation and Proprietary Information from unauthorized disclosure or reproduction. The Software, Documentation and Proprietary Information shall be examined by and disclosed to only such persons as may require such information in the course of their duties.

4.5 Exceptions. Any provisions herein concerning non disclosure and non use of confidential information of a party shall not apply to any such information which (a) is already rightfully known to the other party when received; (b) is or becomes publicly known through publication or otherwise and through no wrongful act of the other party; (c) is received from a third party without similar restriction and without breach of this Agreement; (d) is approved for release or use by written authorization of the other party; or (e) is required to be disclosed pursuant to any government statute, regulation or order.

5. TERM, TERMINATION

5.1 Term. The term of this Agreement shall come into full force and effect on the date on which the Software and passwords, if applicable, have been made available to Licensee, and for the term specified in the Evaluation License Order unless earlier terminated under Section 5.2.

5.2 Termination. Either party may terminate this Agreement immediately upon written notice to the other party.

5.3 Licensee Obligations on Termination. Upon termination of this Agreement, all licenses granted hereunder shall immediately terminate and Licensee shall return all Software and the Documentation in its possession or control to Company and shall discontinue use of Software. After termination, Articles 4-6 shall survive in perpetuity.

6. GENERAL

6.1 No Assignments. Licensee may not assign this Agreement (or any of its rights hereunder), or delegate its obligations hereunder to any other party. For purposes of this section, assignments shall include, without limitation, merger and acquisition.

6.2 Amendment; Waiver. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, shall be effective unless assented to in writing by both parties. The waiver of any breach or default shall not constitute a waiver of any other right hereunder or any subsequent breach or default.

6.3 Relationship. Nothing contained herein shall in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship.

6.4 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforce¬able, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms. To the extent any provision cannot be enforced in accordance with the stated intentions of the parties, such provision shall be deemed not to be a part of this Agreement.

6.5 Governing Law. This Agreement shall be governed by and construed, and the legal relations between the parties shall be determined in accordance with, the laws of the Federal Republic of Germany, excluding application of any conflict of laws principles and excluding application of the United Nations Convention for the International Sale of Goods. Place of Jurisdiction is Munich.

6.6 Notices. All notices required hereunder shall be communicated in English or German and shall be personally delivered or sent by certified or registered mail or reputable express courier service, addressed to the parties at their addresses first mentioned above, or at such other address as either party may designate to the other by notice served as hereby required, or contained in the relevant order form, or sent by facsimile transmission to the facsimile machine telephone number provided by the receiving party.

6.7 Entire Agreement. This Agreement is the complete agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporaneous proposals, agreements, understandings, representations, purchase orders and communications, whether oral or written. COMPANY Except as expressly permitted herein, this Agreement may be modified only by written amendment signed by the parties and no other act, document, usage or custom shall be deemed to amend or modify this Agreement, including but not limited to Licensee’s terms and conditions. No oral or written information or advice given by Company, its agents or employees shall create a warranty under this Agreement or otherwise.