IBM i (AS400, iSeries) application performance tuning services

This Software License & Maintenance Agreement ('Agreement') is made and entered into by and between MB Software & Consulting, Inc., with its principal office and place of business at 1101 East Cumberland Ave, Suite 201H-3119, Tampa, FL 33602 USA (hereinafter 'MB Software') and Licensee ('Customer'), as set forth in Exhibit A.

1. Definitions

1.1 Customer means the Licensee set forth in Exhibit A and any person, corporation, company, limited liability company, affiliate or other legal or business entity(ies) directly or indirectly, controlling, controlled by, or under common control.

1.2 Designated Equipment means the equipment described in Exhibit A.

1.3 Documentation means the user documentation provided by MB Software to Customer regarding the functionality and use of the Licensed Software.

1.4 Logical Partition (LPAR) is the division of a computer's processors, memory, and storage into multiple sets of resources so that each set of resources can be operated independently with its own operating system instance and applications.

1.5 Licensed Date is the date the Customer executes this Agreement.

1.6 Licensed Software means the application software owned by MB Software as described in Exhibit A, its Documentation, and subsequent modifications, updates, enhancements, revisions, or similar changes to the Licensed Software or Documentation that is developed and delivered by MB Software pursuant to the Maintenance provisions herein. The Licensed Software shall be delivered in machine readable object code form only.

1.7 Warranty Period shall mean the period of ninety (90) days from the Licensed Date.

2. License

2.1 Upon payment in full of the license fees set forth in Exhibit A, MB Software grants to Customer a non-exclusive, non-transferable, non-assignable, perpetual license to use the Licensed Software only for Customer's own internal business purposes on the Designated Equipment.

2.2 If Customer upgrades the hardware (as defined as Designated Equipment in Exhibit A) it may transfer the Licensed Software, at no charge, to the new hardware upon notice to MB Software. MB Software shall promptly provide the authorization and necessary access codes. Temporary access codes will be provided upon request for testing hardware upgrades.

2.3 The Licensed Software may not be used on or with equipment other than the Designated Equipment unless explicitly authorized in writing by MB Software whose authorization will not be unreasonably withheld and upon payment of an appropriate additional license fee.

2.4 Customer may make up to two copies of the Licensed Software in machine-readable object code form, for non-productive archival and backup/disaster recovery purposes only for each Designated Equipment, provided that: (a) reasonable security precautions are taken to prevent the unauthorized copying or disclosure of the Licensed Software; and (b) that at all times, Customer does not change, remove or interfere with any of MB Software's prominent display of its copyright notices.

2.5 Customer shall not otherwise copy, reverse engineer, decompile, disassemble, modify or create any derivative works or otherwise use the Licensed Software except as specifically permitted in this Agreement. Customer will not attempt to defeat, modify, copy, work around or duplicate any security devices protecting the Licensed Software.

2.6 Customer shall not market, rent, lease, sublicense, allow access to, or transfer the Licensed Software to any other party.

3. License Fee

3.1 License Fee. Customer shall pay MB Software a license fee for each copy of the Licensed Software on each system and Logical Partition as specified in Exhibit A.

3.2 Taxes. In addition to the fees set forth above, Customer shall pay all applicable taxes arising out of this Agreement or any services hereunder.

4. Delivery of Licensed Software

4.1 Delivery. Once Customer has paid the License Fee in full, MB Software shall deliver the permanent access codes to Customer per the Designated Equipment as set forth in Exhibit A.

5. Customer Responsibilities

5.1 Installation. Customer shall have the sole responsibility for installation of the Licensed Software on the Designated Equipment.

6. Limited Warranty

6.1 Warranty. During the Warranty Period, MB Software warrants that the Licensed Software, if properly installed and used, will fully perform the functions described in the Documentation, and shall be free of defects that substantially affect its performance.

6.2 Notice. During the Warranty Period, Customer must notify MB Software in writing, within thirty (30) days of discovery of any problem. Customer shall provide reasonable assistance to MB Software in its evaluation of the problem, including without limitation, providing MB Software with copies of all data and other files reasonably required to verify, reproduce, diagnose and resolve the reported problem. If MB Software can reproduce such defect and verify that such defect is due to MB Software, MB Software's obligation under this warranty is, as its option, to either (a) remedy, at its expense, such defect in a manner consistent with MB Software's regular business practices, or (b) render a prorated refund to Customer.

6.3 MB Software represents and warrants that it has the full right, power and authority to grant to Customer the rights granted in this Agreement without violating the rights of any third party and to the best of its knowledge, there is no actual or, threatened suit by any third party based on alleged violations of its rights.

6.4 To the extent MB Software incorporates third party software into the Licensed Software, MB Software shall have obtained the rights from such third parties to vest in or grant to Customer the various rights under this Agreement.

6.5 MB Software warrants that when delivered, the Licensed Software does not contain any malicious code, program or other internal component (e.g., computer virus, computer worm, computer time bomb, or similar component), which could damage, destroy, or alter any computer program, firmware, or hardware or which could, in any matter, reveal, damage, destroy, or alter any data or other information accessed through or processed by the Licensed Software in any manner. MB Software shall immediately advise Customer, in writing upon reasonable suspicion or actual knowledge that the Licensed Software and/or information accessed may result in the harm described above.

6.6 Exclusions. The Warranty shall be void if (a) the Licensed Software has been subjected to accident, neglect, misuse, abuse, or vandalism; (b) the Licensed Software has been modified by any party other than MB Software; or © the Licensed Software has been used on equipment other than the Designated Equipment. Any work by MB Software for Customer for repairs for any excluded warranty services shall be billed at MB Software's hourly rate.



7. Ownership and Confidentiality

7.1 Ownership. MB Software shall have, and warrants that it has, sole and exclusive ownership of all rights, title and interest in and to the Licensed Software, including all applicable rights to patents, copyrights, trade secrets and other proprietary rights.

7.2 Customer acknowledges and agrees that the Licensed Software, all Documentation, all modules, modifications and related materials developed hereunder by MB Software and all copies thereof are proprietary to MB Software and all rights, title and interest in and to the Licensed Software and all modifications and enhancements thereof, including all applicable rights to patents, copyrights, trade secrets and other proprietary rights belong to MB Software.

7.3 Customer acknowledges and agrees that all modifications or changes to the Licensed Software made by MB Software hereunder or otherwise at Customer's request shall not be considered as constituting, producing or resulting in a 'work for hire' under the Copyright Laws. MB Software shall for all purposes be deemed the author and originator of all products directly resulting from any work performed by MB Software pursuant to this agreement. At all times, Customer shall own its data.

7.4 Customer shall advise its, officers, employees and agents who utilize the Licensed Software of the terms of these proprietary rights.

7.5 Any and all trademarks and trade names under which MB Software markets or promotes the Licensed Software remain the exclusive property of MB Software. This Agreement gives neither party any rights to the trademarks or trade names of the other party.

7.6 Confidentiality. Each party agrees that during the course of this Agreement it may be furnished with, or otherwise have access to, information that the other party considers to be confidential, including but not limited to, business and technical information, research, data, software, whether tangible or intangible, compiled or memorialized physically, electronically, graphically or in writing (the 'Confidential Information'). Each party agrees to secure and protect the Confidential Information of the other in a manner consistent with the maintenance of the other party's rights therein, using at least as great a degree of care as it uses to maintain the confidentiality of its own confidential information of a similar nature. Neither party nor its employees will improperly disclose, use, or otherwise make available any portion of the Confidential Information of the other party to third parties without the other party's written consent.

7.7 Remedies. Each party acknowledges that in the event of a breach of this Section, the other party will not be adequately compensated by money damages and shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. Such action shall not limit its right to seek further remedies.

7.8 Survival. The provisions of this Section 7 shall survive termination of the Agreement.

8. Support & Maintenance

8.1 MB Software will provide technical support necessary to install and utilize the Licensed Software via phone support during the term of the Agreement as specified in Exhibit A. Support services shall be scheduled with the appropriate employees on an as-needed basis. MB Software and Customer recognize that installation and support services must, of necessity, be a mutual and joint effort and will require the support and cooperation of the management of Customer. If Customer requests support services beyond the amount specified in Exhibit A and not within the Maintenance Services set forth herein, it shall pay pursuant to MB Software's current rates prior to the rendering of such services.

8.2 At Customer's election and payment of the annual Maintenance Fees, MB Software shall provide the following maintenance and support services for the Licensed Software: (a) MB Software shall correct or replace the Licensed Software or provide the necessary services to remedy any programming error which significantly affects Customer's use of the Licensed Software. Such correction, replacement or services shall be done promptly after Customer has identified and notified MB Software of any such error in writing; (b) MB Software shall provide Customer telephone support services during the hours of 8am to 5pm US EST Monday through Friday. Customer may also utilize email inquiries by sending it to mailto(; © MB Software shall use all reasonable efforts to remedy any verifiable errors or such other problem experienced by Customer; and (d) MB Software agrees to deliver to Customer, when completed, without charge any and all new versions of the Licensed Software, including upgrades and enhancements.

8.3 Maintenance Services are contingent upon the proper use of the Licensed Software in accordance with MB Software's published specifications and does not include any of the following: (a) service resulting from Customer's alterations, improper use, or misuse of the Licensed Software as necessitated by adjustments and changes attempted by non-MB Software personnel; (b) service to a version other than the most current and previous version of the Licensed Software; © efforts to restore the software version and/or data beyond the most recent full back-up; (d) service related to software other than the Licensed Software; and (e) service related to non-Designated Equipment or unqualified hardware or software.

8.4 In the event that customized services are requested for reasons other than MB Software's inability to resolve errors attributable to MB Software, then Customer shall be charged MB Software's then current hourly rates for Maintenance Services performed.

8.5 Customer shall pay the annual charges for these services in the amount set forth in Exhibit A ('Maintenance Fees'). The Maintenance Fees may be modified by MB Software after the one (1) year period with written notice prior to the expiration of this Agreement. If the Maintenance Fees are increased, Customer may elect in writing not to renew the Maintenance obligation. Increases in the Maintenance Fees will not exceed the 10% per annum of the previous year's fees paid. As long as there are no breaches of this Agreement, Customer has the right to continue paying for Maintenance Service for as long as MB Software provides such to other licensed customers.

8.6 Payment for the Maintenance Fees for the first year and any renewals thereafter is due prior to each anniversary of the Licensed Date.

8.7 If Customer does not pay the Maintenance Fees when due, MB Software shall terminate all Maintenance Services.

8.8 In the event of termination of this Agreement, all Maintenance Fees will remain the property of MB Software, and MB Software's obligations under this Agreement shall immediately end.

9. Termination

9.1 MB Software shall have the right to terminate this Agreement and all other rights granted herein in the event Customer violates any provision of this Agreement provided MB Software has provided Customer with 30 days written notice of the violation and if Customer has not cured the violation.

9.2 Notwithstanding the foregoing, MB Software may immediately terminate this Agreement if Customer has improperly copied or violated MB Software's intellectual property rights.

9.3 Termination of this agreement shall result in forfeiture to MB Software of all sums already paid by Customer. Termination, as provided herein, shall be in addition to and not in lieu of any or all legal and equitable remedies available to MB Software. Upon termination, MB Software shall deactivate the Licensed Software access code(s).

10. Escrowed Software

10.1 During the term of this Agreement, MB Software shall, if elected on Exhibit A, place and maintain the Licensed Software's most recent version of its Source Code with an independent third-party software escrow service ('Escrow Agent').

10.2 Upon the execution of this Agreement, MB Software shall notify the Escrow agent of the name, address and contact person for Customer to be kept on file during the term of this Agreement.

10.3 The Escrow Agent shall hold the Source Code in a secure, climatized facility and shall release the same upon the conditions stated herein.

10.4 Pursuant to the terms of the Escrow Agreement, Escrow Agent shall release the Escrowed Source Code to Customer in the event of any of the following: (a) any sale, assignment or other transfer by MB Software of its business such as it would prevent it or its successor from discharging its obligations with respect to the Licensed Software or any maintenance obligations; or (b) MB Software becomes insolvent, files for bankruptcy, makes a general assignment for the benefit of creditors, or suffers or permits the appointment of a receiver for its business, where its assets become subject to any proceeding under any insolvency law, domestic or foreign, or has wound up or liquidated its business and the Customer has reason to believe that any such event will cause MB Software to fail to meet its warranty and maintenance obligations in the foreseeable future.

10.5 On the happening of any of the above events, Customer shall give written notice to the Escrow Agent of the default, identifying and specifying the nature of default and demand the delivery of a complete copy of the Source Code.

10.6 Pursuant to the terms of the Escrow Agreement, the Escrow Agent shall provide notice to MB Software who shall have an opportunity to respond prior to the release of the Source Code to Customer. Customer shall be entitled to a copy of the Escrow Agreement between MB Software & Escrow Agent.

11. Dispute Resolution

11.1 If a dispute arises between the parties relating to MB Software's obligations, and such dispute cannot be settled through negotiation, then the parties shall first try in good faith to promptly settle the dispute through non-binding mediation before resorting to any other dispute resolution procedure, including but not limited to arbitration or litigation. If the parties cannot agree on a mediator or fail to arrive at a mutually satisfactory solution through mediation within ten (10) business days following the commencement of such mediation then the parties are free to commence litigation.

12. Indemnification

12.1 MB Software shall indemnify, defend and hold harmless Customer, its subsidiaries and affiliates, and their respective directors, officers, members, managers, employees, representatives, contractors, and agents, from and against any and all claims, demands, losses, damages, judgments, costs, or expenses, including reasonable attorneys' fees, to the extent relating to or arising out of, directly or indirectly, any third party claim that the Licensed Software and/or associated materials infringes or misappropriates a patent, trademark, copyright, trade secret, or other proprietary right.

12.2 MB Software shall pay any costs, all resulting damages, or awards of settlement including court costs and reasonable attorneys' fees arising out of any such claim, demand or action; provided, that Customer shall give prompt written notice of any such claim, demand, or action to MB Software which shall have sole control of the defense and settlement thereof.

12.3 In the event that any software is held in such suit or proceedings to infringe such proprietary right, and the use of the software, or portion thereof, is enjoined, MB Software shall, within thirty (30) days of the court order, do one or more of the following at its expense: (a) procure for Customer the right to continue using the software, or portion thereof: or (b) replace the same with non-infringing software of equivalent functions; or © remove the software, or portion thereof. In the event that MB Software so removes the software or portion thereof, Customer shall receive a pro rata refund of all of the fees paid in connection with the specific services or software that was affected.

13. General

13.1 Governing Law. This Agreement shall be governed in all respects by the laws of the State of New York in the United States.

13.2 Notices. All notices given hereunder shall be in writing and (a) personally delivered; (b) sent by fax (with a copy by ordinary mail); © by overnight delivery service, or (d) by registered or certified mail, at the address set forth herein or such other address as requested by either party.

13.3 Assignment. This Agreement shall inure to the benefit of, and shall be binding upon each of the parties hereto and their respective successor and assignees, but shall not be assigned in whole or in part by either party without prior written consent of the other party except to an entity which acquires all or substantially all of the assets or stock of the business related to this Agreement, in which case such party shall give prior written notice to the other party of such assignment.

13.4 Entire Agreement. This Agreement constitutes the entire agreement between the parties and shall supersede all previous representations and agreements between the parties with respect to the subject matter hereof. Any amendment or modification shall be binding only if in writing and signed by the duly authorized representatives of both parties.

13.5 No action, regardless of form, arising out of this Agreement may be brought by either Customer or MB Software more than one year after the cause of action has arisen.

13.6 Either Party shall have the right to collect from the other party its reasonable expenses incurred in enforcing this Agreement, including reasonable attorneys' fees.

13.7 The waiver or failure of MB Software to exercise in any respects any right provided for herein shall not be deemed a waiver of any further right hereunder.

13.8 Neither party shall be held responsible for any delay or failure to perform hereunder for which delay or failure is due to directives of the government or governmental agency or Acts of Nature, fire, flood, acts of terrorism, power failure or communications failure, in accordance with this Agreement that make such performance hereunder impossible.

IN WITNESS WHEREOF, the parties have caused their duly authorized representatives to execute this Agreement to be effective as of the date indicated in Exhibit A.






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