NetCharts for Developers Software License Agreement

IMPORTANT: READ THE FOLLOWING CAREFULLY BEFORE USING THE PRODUCT

1. LICENSE GRANT

Visual Mining grants and User (Licensee) accepts, during the term of this Agreement, a non-exclusive and nontransferable license to use the Visual Mining Software (in machine-readable, object-code form only) and its related documentation, subject to the terms and conditions of this Agreement, the type of License granted as defined in Section 2 below. Licensee may make copies of the Software for back-up purposes only, provided that Licensee reproduces the Visual Mining copyright and other proprietary rights notices on all such copies. This license does not include any rights to disclose, license, or otherwise transfer the Software, related documentation, or other proprietary information of Visual Mining.

Licensee shall keep complete and accurate records relating to its use of the Product in accordance with standard business practices in the computer industry. Licensee grants to Visual Mining or its independent accountants the right to examine its books, records and accounts during Licensee’s normal business hours upon at least ten (10) days advance written notice at mutually agreeable times, no more frequently than once annually, to verify compliance with the provisions of this agreement. Visual Mining or its independent accountants shall, at Licensee’s request, agree in writing to maintain in confidence any proprietary information obtained during the course of such audit. In the event such audit discloses that the permitted number of Central Processing Units (CPUs), as described in Section 2B is exceeded, Licensee shall promptly pay Visual Mining the appropriate license fee for the additional CPUs plus interest equivalent to ten percent (10%) per annum and shall promptly reimburse Visual Mining for all expenses associated with such examination within thirty (30) days notice by Visual Mining. At Visual Mining’s option, Visual Mining may terminate this license for failure to pay the required license fees.

2. TYPE OF LICENSE

A. Evaluation License: The Product is available for use free-of-charge for the purpose of evaluating and testing only. Section 5A of this Agreement is not applicable to this license. This evaluation and testing period is not to exceed thirty (30) days unless otherwise agreed to by both parties in writing. At the end of the evaluation period, Licensee must secure and pay for a Full License or stop using the Product and erase or otherwise destroy all copies of the Software that are fixed or resident in the memory or hard disks of computers owned or controlled by Licensee and return to Visual Mining all other existing copies (including original copies) of part or all of the Product and related documentation. In the event Licensee chooses to discontinue using the Product, Licensee shall still be bound by the terms as set forth in Section 5, CONFIDENTIALITY. The Product is delivered "AS IS" with no support, warranty, or other obligation to you. The entire risk as to the quality and suitability of the Product is borne by Licensee.

B. End User License: An End User License is a perpetual license to use the Product solely for Licensee’s internal use and operations within Licensee’s application(s) for up to the licensed number of central processing units (CPU’s). CPUs are calculated and aggregated by machine (e.g. if the Software is installed on two computers each having a dual processor, the total CPUs required is four (4)). The license will become effective only upon your payment in full of all license fees payable under Visual Mining order confirmation or invoice. Section 5 and 6 of this Agreement is applicable to this license. Licensee may make only as many copies of the Product as necessary to effectuate the foregoing, provided, however, that Visual Mining grants to Licensee permission to make one additional copy of the Software for archival purposes. Licensee must contact Visual Mining and pay additional license fees if Licensee desires to change the type of End User license or add additional CPU’s.

C. Visual Mining Order Confirmation: Visual Mining order confirmation or invoice, if any, will specify which plan is applicable to you. In the absence of any such specification, the "Evaluation License" plan is applicable. The permitted maximum number of CPU’s on which the Software may be stored and used is stated on the Visual Mining invoice or order confirmation. If the maximum number of CPUs is not so indicated, this is a dual (2) CPU license, and the Software may be stored and used on no more than two CPUs. This license is NOT a site or enterprise license. Licensee may make only as many copies of the Product as necessary to effectuate the foregoing, provided, however, that Visual Mining grants to Licensee permission to make one additional copy of the Software for archival purposes. Licensee must contact Visual Mining and pay additional license fees if Licensee desires to increase the number of computer systems on which Licensee is authorized to store and operate the Software, or change the type of license to a site or enterprise license.

D. Early Availability Software Evaluation. If Licensee is using an early availability evaluation copy of the Product, Attachment B is incorporated into and made a part of this Agreement.

3. OWNERSHIP AND RESTRICTIONS

A. Licensee acknowledges and agrees that, as between Visual Mining and Licensee, the Product and all authorized copies thereof and all copyrights, trademarks and other intellectual property rights with respect thereto, are and will at all times be the property of Visual Mining and is protected under U.S. and foreign copyright, trade secret and other laws. The Product is licensed, not sold, and all right, title, and interest in and to the Product remains with Visual Mining. This Agreement does not convey to you an interest in or to the Product but only a limited right to use revocable in accordance with the terms of this Agreement.

B. Licensee may not incorporate all or part of the Product in any toolkit, development kit or other software product that duplicates all or part of the functionality of the Product. Licensee may not decompile, disassemble, reverse engineering, reverse compile, translate, disassemble, modify, or create derivative works of the Product or any portion thereof. Except as specifically permitted in Section 2 of this Agreement, Licensee may not assign, sublicense, distribute, sell, transfer, pledge, lease, rent, share or use the Product in a time sharing arrangement or online subscription service, disclose the Product or any portion thereof to or with any third party or use the Software in any other unauthorized manner unless with prior written permission of Visual Mining management. Additionally, Licensee shall not distribute to any third party any documentation, users guides, examples or chart templates that Visual Mining provides for or with its Software, nor shall Licensee directly expose Visual Mining’s license key(s) to any third party.

C. Acknowledgements: If the licensed Software includes or is otherwise applicable to Visual Mining’s NetCharts Designer, Licensee shall be aware that the NetCharts Designer Software includes open source software developed by the Eclipse Foundation, namely the Eclipse framework. The Eclipse software is covered by the following license agreement: Common Public License - v 1.0. Source code for the Eclipse software is available through their website, www.eclipse.org.

4. PROPRIETARY RIGHTS

Licensee shall acquire no rights in the Software or Product other than as set forth herein. Title and ownership of all proprietary rights in the Product, including any copyright, patent, trade secret, trademark or other intellectual property rights, will at all times remain the property of Visual Mining and, if applicable, the Visual Mining Licensors. All use of such proprietary assets shall inure to Visual Mining’s benefit. Licensee agrees not to remove or obliterate any copyright, trademark or proprietary rights notices of Visual Mining or Visual Mining Licensors from the Software and/or Product.

5. PAYMENT AND RELATED TERMS

Fees for the Software and for all related support, training and other services offered by Visual Mining are set forth in an applicable invoice, as outlined in Section 2C above. Licensee is responsible for all applicable shipping charges and taxes (except for taxes based upon Visual Mining’s net revenues or net income). All amounts owed to Visual Mining on Licensee’s Initial Purchase shall be paid within thirty (30) days from the Effective Date of this Agreement. A late payment charge of one and one-half percent (1½%) per month or the maximum allowed by law, whichever is less, shall apply to all overdue invoices.

6. TECHNICAL SUPPORT

For individual Licensees for a period of thirty (30) days from the date of purchase, only one (1) registered user of licensee who purchased the Product shall have access to technical support free of charge. After such period, unless Licensee pays for subscription support under Visual Mining’s Product Support and Enhancement program, Licensee will be billed on a per call or email basis. Upgrades and enhancements to the Product and documentation are not included with free support, but are however, part of the paid Enhanced Product Support and Enhancement program. Visual Mining reserves the right to modify and/or enhance Software and/or documentation without obligation to notify any person or organization of such changes.

A. Error Corrections: Visual Mining shall exercise commercially reasonable efforts to correct significant errors reported by the Licensee in the current unmodified release of the Software in accordance with the priority levels described below reasonably assigned to such error by Visual Mining. If a reported error has caused the Software to be inoperable, or the Licensee's notice to Visual Mining states that the reported error is substantial and material with respect to the Licensee's use of the product, Visual Mining shall use its best commercial efforts to correct such error or to provide expeditiously a software patch or bypass around such error. The Licensee acknowledges that not all non-material reported errors are corrected.

B. Software Upgrades and Enhancements: On an if-and-when-available basis, Visual Mining, Inc. provides, at no additional cost for Licensees enrolled in the Enhanced Support plan, one electronic copy of all published revisions to the printed documentation and one (1) copy of (or authorization to copy): updates, upgrades, and new releases of the products, which are not designated by Visual Mining as new products for which it charges a separate fee.

C. Supported Platforms: The current supported platforms for the Software are AIX, Windows NT, Windows 2000, Windows XP, HP-UX, Linux, and Solaris.

D. Technical Support: Visual Mining provides technical assistance (via telephone, e-mail or fax) for up to four (4) of Licensee's registered users of the Software, provided Licensee is enrolled and paid for the Enhanced Support Plan. Enhanced Support members receive priority over basic support calls, and senior level support personnel will answer questions related to Visual Mining's Software and how it performs with compatible hardware systems and provide, for the current release and most previous release of the software:

Assistance with installation on Supported Platforms.

Explanation of any terms in our product documentation.

Product compatibility and operation with the latest (GA) release of Internet Explorer, Netscape and Java Development Kit (JDK) Java Virtual Machines (JVM’s).

Explanation of our product’s software and hardware requirements.

Explanation of common performance pitfalls and suggested workarounds.

Explanation of Visual Mining Inc.’s licensing issues and policy.

Suggested solutions and code fragments for common Visual Mining product programming issues.

Assistance in the development of custom applications for Visual Mining’ products is not included in Product Support, however, such support is available separately through Visual Mining’s consulting group. Unless Licensee pays for annual PS&E Plan, Licensee will be billed on a per-call or email basis. All support beyond the scope of the above must be paid for on a per call basis, with an initial minimum charge of $80 for the first 30 minutes and $2.00 per minute for each additional minute. Our technical support staff are available Monday through Friday, between the hours of 9:00am through 5:00pm Eastern Standard Time. Our support staff can be accessed by telephone at (301) 795-2200, e-mail support@visualmining.com, or fax (301) 947-8293.

7. CONFIDENTIAL INFORMATION:

"Confidential Information" shall mean any information provided by either Party or prepared by either Party (in oral, written, or digital form) upon review of such information, technical data, or know-how provided to either Party by the other (whether through a director, officer, employee, agent or representative) including, but not limited to, that which relates to trade secrets, research, product plans, products, services, markets, software, programming code, algorithms, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, marketing or finances of the disclosing Party. Notwithstanding the above, however, Confidential Information shall not include (i) information that is publicly known or available, or becomes publicly known or available without breach of this Agreement; (ii) any information that has been publicly disclosed by either Party or is released for public disclosure by either Party with its prior written consent; (iii) any information already ( i.e. , prior to disclosure by the other Party) rightfully in the possession of the receiving Party without an obligation of confidence; (iv) any information that is rightfully received by the receiving Party from a third party without an obligation of confidence; or (v) any information that is independently developed by the receiving Party without the use of Confidential Information of the disclosing Party.

Each Party agrees that it will hold in strict confidence and not directly or indirectly disclose the Confidential Information of the other Party to any third party at any time without the express written permission of the other Party, excepting either Party's employees, officers, directors, agents, and contractors acting for each Party who have a need to know for the purposes of this Agreement, and to use the Confidential Information of the other Party for no purpose other than the purposes expressly permitted by this Agreement. Each Party shall maintain the confidentiality and prevent accidental and other loss or disclosure of any Confidential Information of the other Party with at least the same degree of care as it uses to protect its own Confidential Information but in no event with less than reasonable care. Upon written request by either Party, the other Party shall promptly return all documents and other tangible materials representing the requesting Party's Confidential Information and all copies thereof.

Licensee acknowledges that the Product, related documentation and other related materials provided by Visual Mining are confidential information of Visual Mining ("Confidential Information"). Licensee agrees to use the Confidential Information only for the limited term of this license and solely for the purposes of this Agreement, and to take all steps reasonably necessary to prevent and restrain unauthorized or inadvertent use, disclosure, delivery, publication, dissemination or reproduction of such Confidential Information.

The obligations with respect to this Section 7 shall survive termination of this Agreement for a period of twelve (12) months following such termination by either Party for any reason.

8. WARRANTIES; DISCLAIMER OF CERTAIN WARRANTIES:

A. Warranties: Visual Mining will replace, at no charge, defective media and Product materials that are returned within thirty (30) days of the original date of license. For Visual Mining's proprietary Software only, Visual Mining warrants, for a period of thirty (30) days from the original date of license, that the Software will perform in substantial compliance with the documentation accompanying the Software. If Licensee reports in writing, within thirty (30) days of the original date of license, a significant defect in the Software to Visual Mining, Licensee's sole and exclusive remedy shall be for Visual Mining to modify or correct the Software. If Visual Mining is unable to correct it or provide a reasonable workaround within ninety (90) days of the date Licensee reported the defect, Licensee may return the defective Product, and Visual Mining will refund the license fee paid. Licensee agrees that the only remedy available to Licensee will be a refund of the actual license fee paid to Visual Mining.

This warranty does not apply if the Product (a) has been altered, except by Visual Mining, (b) has not been installed, operated, repaired or maintained in accordance with any instructions provided by Visual Mining, or (c) has been subject to abnormal misuse, negligence or accident. Nor does this warranty apply to any beta software, any software made available for testing or demonstration purposes, temporary software, or any software for which Visual Mining has not or did not receive a license fee; such software is provided AS IS without any warranty whatsoever.

B. Disclaimer of Certain Warranties: Use of the Software with hardware and/or other software other than that for which it was designed is not warranted or supported by Visual Mining. Visual Mining is not responsible for problems caused by changes in the operating characteristics of the computer hardware or other software which are made after delivery of the Product. Visual Mining does not warrant that the Product will meet your requirements or that the operation of the Software will be uninterrupted or error-free.

EXCEPT AS SET FORTH IN THIS AGREEMENT, VISUAL MINING AND VISUAL MINING'S LICENSORS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED. THE PRODUCT IS PROVIDED BY THE AUTHOR AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABILITY OF COMPUTER PROGRAM, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, INFORMATIONAL CONTENT, AND NON-INFRINGEMENT ARE DISCLAIMED. VISUAL MINING AND VISUAL MINING'S CONTRIBUTORS DO NOT WARRANT THAT THE SOFTWARE OR DOCUMENTATION OR ANY PART THEREOF WILL BE SECURE OR UNITERRUPTED. IN NO EVENT SHALL THE AUTHOR OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. The Software is warranted only to Licensee by Visual Mining, and Licensee shall not extend any warranties for or on behalf of Visual Mining or Visual Mining's Licensors to End Users, Resellers, or any other third parties.

9. DISCLAIMER OF LIABILITY

VISUAL MINING'S AGGREGATE LIABILITY UNDER ANY CLAIMS ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY LICENSEE TO VISUAL MINING PURSUANT TO THIS AGREEMENT. VISUAL MINING AND VISUAL MINING LICENSORS WILL NOT BE LIABLE FOR LOST PROFITS OR FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN IF LICENSEE OR VISUAL MINING (AS APPROPRIATE) IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE ABOVE, THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO THE EXTENT LICENSEE OR VISUAL MINING CAN BE SHOWN TO HAVE FAILED TO EXERCISE REASONABLE CARE IN THE PRODUCTION AND/OR SUPPLY OF THE SOFTWARE AND/OR DOCUMENTATION AND/OR THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND SUCH FAILURE RESULTS IN DEATH OR PERSONAL PHYSICAL INJURY. THE PARTIES AGREE THAT THE LIMITATIONS IN THIS SECTION ARE A BARGAINED-FOR-EXCHANGE AND A MATERIAL CONDITION AND PREMISE OF THIS AGREEMENT.

10. TERM AND TERMINATION

This Agreement hereunder may be terminated by Visual Mining: (1) if Licensee breaches any Confidentiality provisions herein, (2) in the event of a material breach by Licensee of any provision of this Agreement where Licensee fails to correct such breach within thirty (30) days of written notice, or (3) for failure to pay the required licensee fees, or (4) upon the insolvency, bankruptcy, reorganization, or assignment for the benefit of creditors of Licensee. Within thirty (30) days after termination of this Agreement, Licensee shall furnish to Visual Mining written notice certifying that Licensee has (i) erased or otherwise destroyed all copies of the Software that are fixed or resident in the memory or hard disks of computers owned or controlled by Licensee and (ii) returned to Visual Mining all other existing copies (including original copies) of part or all of the Product and related documentation. Licensee shall make prompt payment in full to Visual Mining for all amounts outstanding as of the date of termination.

11. GENERAL PROVISIONS

A. Commercial Software. The Product was developed at private expense, is not in the public domain, and is commercial computer software under U.S. Defense Department and other U.S. Government acquisition regulations. No rights other than those set forth herein are granted to the U.S. Government or any other government or agency.

B. Assignment. This Agreement may not be assigned by Licensee or by operation of law to any other person, persons, firms, or corporation without the express written approval of Visual Mining, except in the instance of a corporate restructuring, re-incorporation, merger, acquisition of a majority of the assignor's assets or stock, or similar corporate activity.

C. Notices. Any notice required under this Agreement shall be given in writing and shall be deemed effective upon delivery to the party to whom addressed by (i) express courier upon written verification of actual receipt or (ii) facsimile upon confirmation of receipt generated by the sending device. All notices shall be sent to the applicable address or other address as the parties may designate in writing, with a copy to the president or to the legal department of such party. The applicable address, in the instance of Licensee, shall be the Bill To Address on the Visual Mining Order Confirmation. The applicable address for Visual Mining, Inc. shall be:

Visual Mining, Inc.
Attn: Tristan M. Ziegler
Park Plaza II
2099 Gaither Road, Suite 220
Rockville, MD 20850
USA

D. Governing Law. This Agreement shall be governed by and constructed in accordance with the substantive laws of the State of Maryland , without regard to its rules governing conflicts of law.

E. Severability. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of the remaining provisions of this Agreement.

F. Failure To Enforce. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

G. Relationship of the Parties. Each party is acting as an independent contractor and not as an agent, partner, or joint venturer with the other party for any purpose. Except as provided in this Agreement, neither party shall have any right, power, or authority to act or to create any obligation, express or implied, on behalf of the other.

H. Survival of Certain Provisions. The obligation of confidentiality set forth in Section 6 of this Agreement shall survive the termination of the Agreement by either party for any reason.

I. All Amendments in Writing. No provisions in either party's purchase orders, confirmations, invoices or in any other business forms employed by either party will supersede the terms and conditions of this Agreement, and no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement.

J. General Announcement. Both parties may communicate the general existence of this Agreement to other parties provided that no specific terms and conditions in this Agreement are disclosed.

K. Entire Agreement. If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion shall be deemed eliminated and the remainder of this Agreement shall remain in effect in accordance with its terms as modified by such deletion. The waiver by either party of a breach or violation of any provision of this Agreement shall not operate as, or be construed to be, a waiver of any subsequent breach of this Agreement. No waiver of any breach of this Agreement shall be effective unless in writing. This Agreement (including all Exhibits) contains the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements, negotiations, proposals and communications between the parties relating to the subject matter hereof. Moreover, this Agreement shall replace and supersede any Visual Mining end user license agreement included with the package of any Software used by Licensee. The parties have read this Agreement and agree to be bound by its terms. No representations or statements of any kind made by either party, which are not expressly stated herein, shall be binding on such party. This Agreement may be executed in counterparts.

Attachment A - Products

This Attachment A is a part of the Visual Mining License Agreement.

Product Name Version:

NetCharts and NetCharts Applets 4.5 and point releases
NetCharts Pro 4.5 and point releases
NetCharts Designer 4.5 and point releases
NetCharts Server 4.5 and point releases
NetCharts Reporting Suite 4.5 and point releases

Documentation and Other Materials:

Visual Mining Chart Definition Reference Manual, Installation, User, Programmer, and Administrator Guides, Online Tutorials, Example charts, programs and scripts, and Release Notes.

NetCharts Performance Dashboards Software License Agreement

IMPORTANT: READ THE FOLLOWING CAREFULLY BEFORE USING THE PRODUCT

WHEREAS VISUAL MINING, INC. HAS DEVELOPED COMPUTER SOFTWARE PROGRAMS AS DESCRIBED IN ATTACHMENT A, CONSISTING OF COMPUTER SOFTWARE (THE "SOFTWARE"), AND ACCOMPANYING DATA, DOCUMENTATION AND OTHER MATERIALS, THE COMBINATION OF WHICH ARE REFERRED TO AS THE "PRODUCT", TO WHICH THIS LICENSE AGREEMENT (THIS "AGREEMENT") APPLIES IS THE PROPERTY OF VISUAL MINING, INC. ("VISUAL MINING"). YOUR RIGHT TO USE, COPY, AND GRANT ACCESS THE PRODUCT IS GOVERNED IN ALL RESPECTS BY THIS AGREEMENT. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU AND VISUAL MINING GOVERNING YOUR USE OF THE PRODUCT. BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED OR BY DOWNLOADING, INSTALLING OR USING THE PRODUCT, YOU (AND YOUR ORGANIZATION, IF APPLICABLE) AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THUS THE TERMS "YOU", "YOUR" AND "LICENSEE" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, OR USE THE PRODUCT AND YOU MUST SELECT THE "I DECLINE" BUTTON. THIS AGREEMENT SHALL BECOME EFFECTIVE ON THE DATE THIS AGREEMENT IS ACCEPTED BY CHOSING THE "I ACCEPT" OPTION PRESENTED ON THE SCREEN AFTER THIS AGREEMENT IS DISPLAYED AND, IF APPLICABLE, UPON YOUR ISSUANCE OF A PURCHASE ORDER OR PAYMENT IN FULL OF ALL UNDISPUTED LICENSE FEES PAYABLE UNDER VISUAL MINING'S ORDER CONFIRMATION OR INVOICE, AS APPLICABLE. IF YOU HAVE ANY QUESTIONS CONCERNING THIS AGREEMENT, CONTACT VISUAL MINING AT INFO@VISUALMINING.COM OR CALL (301) 795-2200 or 1.800.308.0731.

1. LICENSE GRANT

Subject to payment of the terms and conditions of this Agreement, Visual Mining grants and User (Licensee) accepts, during the term of this Agreement, a non-exclusive, nontransferable limited license to use the Software (in machine-readable, object-code form only) and its related documentation, for testing and evaluation purposes only. This is an Evaluation License only. The Product is available for use free-of-charge only for the purpose of evaluating and testing the Software's suitability for your internal use. Sections 4, 5, 7 and 8A of this Agreement is not applicable to this license. This evaluation and testing period is not to exceed thirty (30) days unless otherwise agreed to by both parties in writing. At the end of the evaluation period, your Evaluation License will be deactivated, and Licensee must secure and pay for a Single End User Desktop License or an End User license or stop using the Product and erase or otherwise destroy all copies of the Software that are fixed or resident in the memory or hard disks of computers owned or controlled by Licensee and return to Visual Mining all other existing copies (including original copies) of part or all of the Product and related documentation. In the event Licensee chooses to discontinue using the Product, Licensee shall still be bound by the terms as set forth in Section 7, Confidential Information. The Product is delivered "AS IS" with no support, warranty, or other obligation to you. The entire risk as to the quality and suitability of the Product is borne by Licensee. This license does not include any rights to disclose, license, or otherwise transfer the Software, related documentation, or other proprietary information of Visual Mining. Licensee shall keep complete and accurate records relating to its use and installation of the Product in accordance with standard business practices in the computer industry.

2. OWNERSHIP AND RESTRICTIONS

A. Licensee acknowledges and agrees that, as between Visual Mining and Licensee, the Product and all authorized copies thereof and all copyrights, trademarks and other intellectual property rights with respect thereto, are and will at all times be the property of Visual Mining and is protected under U.S. and foreign copyright, trade secret and other laws. The Product is licensed, not sold, and all right, title, and interest in and to the Product remains with Visual Mining. This Agreement does not convey to you an interest in or to the Product but only a limited right to use revocable in accordance with the terms of this Agreement.

B. Licensee may not incorporate all or part of the Product in any toolkit, development kit or other software product that duplicates all or part of the functionality of the Product. Licensee may not decompile, disassemble, reverse engineering, reverse compile, translate, disassemble, modify, or create derivative works of the Product or any portion thereof. Except as specifically permitted in Section 2 of this Agreement, Licensee may not assign, sublicense, distribute, sell, transfer, pledge, lease, rent, share or use the Product in a time sharing arrangement or online subscription service, disclose the Product or any portion thereof to or with any third party or use the Software in any other unauthorized manner unless with prior written permission of Visual Mining management. Additionally, Licensee shall not distribute to any third party any documentation, users guides, examples or chart templates that Visual Mining provides for or with its Software, nor shall Licensee directly expose Visual Mining's License Key(s) to any third party. Licensee may not otherwise use the Software to process data for any other person or entity (third party) nor may Licensee use the Software, in whole or in part, to support Internet sites owned by any third parties.

C. Acknowledgements: Licensee shall be aware that the Software includes open source software developed by and copyrighted by various third parties. The use of such third party software shall not be construed as Visual Mining either endorsing or promoting such software or being endorsed or promoted by such third party. The open source software is distributed or otherwise incorporated within the Software on an "AS IS" BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. IN NO EVENT SHALL THE COPYRIGHT HOLDER OR HOLDERS INCLUDED IN THIS NOTICE BE LIABLE FOR ANY CLAIM, OR ANY SPECIAL INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THIS SOFTWARE. Third Party library acknowledgments and license terms can be found in the "About" screen within the product GUI and/or the "About" section of the product documentation.

3. PROPRIETARY RIGHTS

Licensee shall acquire no rights in the Software or Product other than as set forth herein. Title and ownership of all proprietary rights in the Product, including any copyright, patent, trade secret, trademark or other intellectual property rights, will at all times remain the property of Visual Mining and, if applicable, the Visual Mining Licensors. All use of such proprietary assets shall inure to Visual Mining's benefit. Licensee agrees not to remove or obliterate any copyright, trademark or proprietary rights notices of Visual Mining or Visual Mining Licensors from the Software and/or Product.

4. PAYMENT AND RELATED TERMS

Fees for the Software and for all related support, training and other services offered by Visual Mining are set forth in an applicable invoice, as outlined in Section 1 above. Once a license for use of the Software is purchased: a) Licensee is responsible for all applicable shipping charges and taxes (except for taxes based upon Visual Mining's net revenues or net income); b) all amounts owed to Visual Mining on Licensee's purchases shall be paid within thirty (30) days from the Effective Date of this Agreement; and c) a late payment charge of one and one-half percent (1 1/2%) per month or the maximum allowed by law, whichever is less, shall apply to all overdue invoices.

5. TECHNICAL SUPPORT

Provided Licensee has elected and paid the applicable fee, Visual Mining provides optional support in the form of telephone support, error corrections and Software upgrades and enhancements for the licensed Software to Licensees enrolled in Visual Mining's Enhanced annual Product Support and Enhancement Plan ("PS&E"). The annual fee for the PS&E plan, covering a consecutive twelve month period from the Effective Date, is calculated at twenty percent (20%) of the list price of the Software license fee, and renewable each successive year on the anniversary of the Effective Date. Visual Mining reserves the right to modify and/or enhance Software and/or documentation without obligation to notify any person or organization of such changes. For twelve (12) months after the initial introduction of a generally available enhancement or major release, Visual Mining shall use its reasonable efforts to support one previously released version of the Software.

A. Error Corrections: Visual Mining shall exercise commercially reasonable efforts to correct significant errors reported by the Licensee in the current unmodified release of the Software in accordance with the priority levels described below reasonably assigned to such error by Visual Mining. If a reported error has caused the Software to be inoperable, or the Licensee's notice to Visual Mining states that the reported error is substantial and material with respect to the Licensee's use of the product, Visual Mining shall use its best commercial efforts to correct such error or to provide expeditiously a software patch or bypass around such error. The Licensee acknowledges that not all non-material reported errors are corrected.

B. Software Upgrades and Enhancements: On an if-and-when-available basis, Visual Mining, Inc. provides, at no additional cost for Licensees enrolled in the PS&E plan, one electronic copy of all published revisions to the printed documentation and one (1) copy of (or authorization to copy): updates, upgrades, and new releases of the products, which are not designated by Visual Mining as new products for which it charges a separate fee.

C. Supported Platforms: The supported platforms for the Software include the current release of the following, dependent upon the Product:
NetCharts Performance Dashboards: Windows 2000, Windows Server 2003, Windows XP, and Windows Vista (Business and Enterprise).

NetCharts Server, Designer, Pro, and Applets: Microsoft Windows NT, Microsoft Windows 2000, Microsoft Windows XP Professional, Microsoft Windows Vista (Business and Enterprise), Microsoft Windows Server 2003, Linux, Solaris, HP-UX, and AIX (all Non-Windows versions restricted by JVM compatibility).

D. Technical Support Visual Mining provides technical assistance (via telephone, e-mail or fax) for up to three (3) of Licensee's registered users of the Software, provided Licensee is enrolled and paid for the PS&E plan. PS&E plan members receive priority over basic support calls, and senior level support personnel will answer questions related to Visual Mining's Software and how it performs with compatible hardware systems and provide, for the current release and most previous release of the software:

Assistance with installation on Supported Platforms.

Explanation of any terms in our product documentation.

Product compatibility and operation with the latest (GA) releases of other software.

Explanation of our product's software and hardware requirements.

Explanation of common performance pitfalls and suggested workarounds.

Suggested solutions and code fragments for common Visual Mining product programming issues.

Assistance in the development of custom applications for Visual Mining' products is not included in PS&E, however, such support is available separately through Visual Mining's consulting group. Unless Licensee pays for the annual PS&E plan, Licensee will be billed on a per-call or email basis. All support beyond the scope of the above must be paid for on a per call basis, with an initial minimum charge of $80 for the first 30 minutes and $2.00 per minute for each additional minute. Our technical support staff are available Monday through Friday, between the hours of 9:00am through 5:00pm Eastern Standard Time. Our support staff can be accessed by telephone at (301) 795-2200, e-mail support@visualmining.com or fax (301) 947-8293.

6. CONFIDENTIAL INFORMATION

"Confidential Information" shall mean any information and data of a confidential nature belonging to and disclosed by either Party or prepared by either Party (in oral, written, or digital form) in connection with this Agreement, including but not limited to, technical data or know-how provided to either Party by the other (whether through a director, officer, employee, agent or representative), trade secrets, research, product plans, products, services, markets, software, programming code, algorithms, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, marketing or financial information of the disclosing Party. Notwithstanding the above, however, Confidential Information shall not include (i) information that is publicly known or available, or becomes publicly known or available without breach of this Agreement; (ii) any information that has been publicly disclosed by either Party or is released for public disclosure by either Party with its prior written consent; (iii) any information already (i.e., prior to disclosure by the other Party) rightfully in the possession of the receiving Party without an obligation of confidence; (iv) any information that is rightfully received by the receiving Party from a non-party without an obligation of confidence; or (v) any information that is independently developed by the receiving Party without the use of Confidential Information of the disclosing Party.

Each Party agrees that it will hold in strict confidence and not directly or indirectly disclose the Confidential Information of the other Party to any third party at any time without the express written permission of the other Party, excepting either Party's employees, officers, directors, agents, and contractors acting for each Party who have a need to know for the purposes of this Agreement, and to use the Confidential Information of the other Party for no purpose other than the purposes expressly permitted by this Agreement. Each Party shall maintain the confidentiality and prevent accidental and other loss or disclosure of any Confidential Information of the other Party with at least the same degree of care as it uses to protect its own Confidential Information but in no event with less than reasonable care. Upon written request by either Party, the other Party shall promptly return all documents and other tangible materials representing the requesting Party's Confidential Information and all copies thereof.

Licensee acknowledges that the Product, related documentation and other related materials provided by Visual Mining are confidential information of Visual Mining. Licensee agrees to use the Confidential Information only for the limited term of this license and solely for the purposes of this Agreement, and to take all steps reasonably necessary to prevent and restrain unauthorized or inadvertent use, disclosure, delivery, publication, dissemination or reproduction of such Confidential Information.

The obligations with respect to this Section 7 shall survive termination of this Agreement for a period of twelve (12) months following such termination by either Party for any reason.

7. INFRINGEMENT INDEMNIFICATION

Visual Mining agrees to, at its own expense, defend, indemnify and hold Licensee harmless from and against any and all liabilities, damages, awards, losses, costs and expenses (including costs and attorney's fees) arising out of any claims, demands, suits, or causes of action brought by third parties based on the alleged fact that the Software as delivered to Licensee infringes or misappropriates a copyright, patent, trademark, or other intellectual property right of a third party arising under U.S. law. Such obligation is subject to the following conditions (i) Licensee shall notify Visual Mining in writing within thirty (30) days of the date Licensee first becomes aware of a claim, provided that Visual Mining shall not be excused from its obligations hereunder if it is not prejudiced by late notice; (ii) Visual Mining has sole control of the settlement, compromise, selection of legal counsel, negotiation and defense of any such action; and (iii) Licensee gives Visual Mining all reasonably available information, assistance and authority, at Visual Mining's reasonable expense, to enable Visual Mining to do so. Visual Mining may, at its option but not in lieu of the foregoing indemnification obligations, obtain the right to continued use of the Software, substitute other equivalent software, or modify the Software so it is no longer infringing, or, if none of the foregoing remedies are available, terminate Licensee's right to the allegedly infringing Software and refund to Licensee the amount which Licensee has paid for such Software for the current year of the Agreement. The foregoing indemnity shall not apply to any infringement claim based on the Software having been modified by parties other than Visual Mining or used in conjunction with other software or hardware where the use with such other software or hardware gives rise to the infringement claim. THE FOREGOING STATES LICENSEE'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS OF ANY KIND, AND VISUAL MINING EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF NONINFRINGEMENT.

8. WARRANTIES; DISCLAIMER OF CERTAIN WARRANTIES

A. Warranties: Visual Mining will replace, at no charge, defective media and Product materials that are returned within thirty (30) days of the original date of license. For Visual Mining's proprietary Software only, Visual Mining warrants, for a period of thirty (30) days from the original date of license, that the Software will perform in substantial compliance with the documentation accompanying the Software. If Licensee reports in writing, within thirty (30) days of the original date of license, a significant defect in the Software to Visual Mining, Licensee's sole and exclusive remedy shall be for Visual Mining to modify or correct the Software. If Visual Mining is unable to correct it or provide a reasonable workaround within ninety (90) days of the date Licensee reported the defect, Licensee may return the defective Product, and Visual Mining will refund the license fee paid. Licensee agrees that the only remedy available to Licensee will be a refund of the actual license fee paid to Visual Mining.

This warranty does not apply if the Product (a) has been altered, except by Visual Mining, (b) has not been installed, operated, repaired or maintained in accordance with any instructions provided by Visual Mining, or (c) has been subject to abnormal misuse, negligence or accident. Nor does this warranty apply to any beta software, any software made available for testing or demonstration purposes, temporary software, or any software for which Visual Mining has not or did not receive a license fee; such software is provided AS IS without any warranty whatsoever.

B. Disclaimer of Certain Warranties: Use of the Software with hardware and/or other software other than that for which it was designed is not warranted or supported by Visual Mining. Visual Mining is not responsible for problems caused by changes in the operating characteristics of the computer hardware or other software which are made after delivery of the Product. Visual Mining does not warrant that the Product will meet your requirements or that the operation of the Software will be uninterrupted or error-free.

EXCEPT AS SET FORTH IN THIS AGREEMENT, VISUAL MINING AND VISUAL MINING'S LICENSORS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED. THE PRODUCT IS PROVIDED BY THE AUTHOR AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABILITY OF COMPUTER PROGRAM, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, INFORMATIONAL CONTENT, AND NON-INFRINGEMENT ARE DISCLAIMED. VISUAL MINING AND VISUAL MINING'S CONTRIBUTORS DO NOT WARRANT THAT THE SOFTWARE OR DOCUMENTATION OR ANY PART THEREOF WILL BE SECURE OR UNINTERRUPTED. IN NO EVENT SHALL THE AUTHOR OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. The Software is warranted only to Licensee by Visual Mining, and Licensee shall not extend any warranties for or on behalf of Visual Mining or Visual Mining's Licensors to End Users, Resellers, or any other third parties.

9. LIMITATION OF LIABILITY

10. TERM AND TERMINATION

This Agreement hereunder may be terminated by Visual Mining on the earlier of the date the Evaluation License expires or: (1) if Licensee breaches any Confidentiality provisions herein, (2) in the event of a material breach by Licensee of any provision of this Agreement where Licensee fails to correct such breach within thirty (30) days of written notice, or (4) upon the insolvency, bankruptcy, reorganization, or assignment for the benefit of creditors of Licensee. Within thirty (30) days after termination of this Agreement, Licensee shall furnish to Visual Mining written notice certifying that Licensee has (i) erased or otherwise destroyed all copies of the Software that are fixed or resident in the memory or hard disks of computers owned or controlled by Licensee and (ii) returned to Visual Mining all other existing copies (including original copies) of part or all of the Product and related documentation. Licensee shall make prompt payment in full to Visual Mining for all amounts outstanding as of the date of termination.

11. GENERAL PROVISIONS

A. Commercial Software. The Product was developed at private expense, is not in the public domain, and is commercial computer software under U.S. Defense Department and other U.S. Government acquisition regulations. No rights other than those set forth herein are granted to the U.S. Government or any other government or agency.

B. Assignment. This Agreement may not be assigned by Licensee or by operation of law to any other person, persons, firms, or corporation without the express written approval of Visual Mining, except in the instance of a corporate restructuring, re-incorporation, merger, acquisition of a majority of the assignor's assets or stock, or similar corporate activity

C. Notices. Any notice required under this Agreement shall be given in writing and shall be deemed effective upon delivery to the party to whom addressed by (i) express courier upon written verification of actual receipt or (ii) facsimile upon confirmation of receipt generated by the sending device. All notices shall be sent to the applicable address or other address as the parties may designate in writing, with a copy to the president or to the legal department of such party. The applicable address, in the instance of Licensee, shall be the Bill To Address on the Visual Mining Order Confirmation. The applicable address for Visual Mining shall be:

Visual Mining, Inc.
Attn: Legal Counsel
Park Plaza II
2099 Gaither Road, Suite 220
Rockville, MD 20850 USA

D. Governing Law. This Agreement shall be governed by and constructed in accordance with the substantive laws of the State of Maryland, without regard to its rules governing conflicts of law.

E. Severability. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of the remaining provisions of this Agreement.

F. Failure To Enforce. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

G. Injunctive Relief. It is expressly agreed that a material breach of this Agreement will cause irreparable harm to Visual Mining and that a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, Visual Mining and/or Visual Mining Licensors shall be entitled to seek injunctive relief against Licensee in the event of any threatened or actual violation of any material provisions in this Agreement.

H. Relationship of the Parties. Each party is acting as an independent contractor and not as an agent, partner, or joint venturer with the other party for any purpose. Except as provided in this Agreement, neither party shall have any right, power, or authority to act or to create any obligation, express or implied, on behalf of the other.

I. General Announcement. Both parties may communicate the general existence of this Agreement to other parties provided that no specific terms in this Agreement are disclosed.

J. Survival of Certain Provisions. The obligation of confidentiality set forth in Section 7 of this Agreement shall survive the termination of the Agreement by either party for any reason.

K. All Amendments in Writing. No provisions in either party's purchase orders, confirmations, invoices or in any other business forms employed by either party will supersede the terms and conditions of this Agreement, and no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement.

L. Force Majeure. Neither party will be deemed in breach of this Agreement to the extent that performance of its obligations are delayed or prevented by reason of any act of God, war, terrorism, fire, explosion, flood, act of government or any act or omission of a third party over whom the party invoking this clause exercises no control (contractually or otherwise), including telecommunications carriers and utilities. Notwithstanding anything to the contrary set forth in this Agreement, no failure or inability of either party to perform will be excused to the extent caused by the acts or omissions of such party.

M. Entire Agreement. If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion shall be deemed eliminated and the remainder of this Agreement shall remain in effect in accordance with its terms as modified by such deletion. The waiver by either party of a breach or violation of any provision of this Agreement shall not operate as, or be construed to be, a waiver of any subsequent breach of this Agreement. No waiver of any breach of this Agreement shall be effective unless in writing. This Agreement (including all Attachments) contains the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements, negotiations, proposals and communications between the parties relating to the subject matter hereof. Moreover, this Agreement shall replace and supersede any Visual Mining end user license agreement included with the package of any Software used by Licensee. The parties have read this Agreement and agree to be bound by its terms. No representations or statements of any kind made by either party, which are not expressly stated herein, shall be binding on such party. This Agreement may be executed in counterparts.

Attachment A

Products

This Attachment A is a part of the Visual Mining License Agreement.

Applicable Product Name and Version, if applicable:

This is based on the License evaluated by Licensee and includes one or more of the following Products:

NetCharts Performance Dashboards - Excel Edition version 1.x and subsequent point releases;
NetCharts Performance Dashboards - Desktop Edition version 1.x and subsequent point releases;
NetCharts Performance Dashboards Enterprise Edition version 1.x and subsequent point releases;
NetCharts Designer version 5. and subsequent point releases;
NetCharts Applets version 6. and subsequent point releases;
NetCharts Pro version 6. and subsequent point releases;
NetCharts Server version 5. and subsequent point releases;
NetCharts Analytics

Documentation and Other Materials:

Visual Mining Chart Definition Reference Manual, Installation, User, Programmer, and Administrator Guides, Online Tutorials, Example charts, programs and scripts, and Release Notes.