License Agreement

License Agreement

1. License Agreement

1.1	Grant of License. Subject to all of the terms and conditions of this Agreement, Vendor grants to Customer:

(a) Development Tool: a non-transferable, non-sublicensable, non-exclusive license to use the object code form of the software development tool specified in an Order Form (" Development Tool") internally in order to package each application set forth on such Order Form (each, a " Customer Application") together with Vendor's application virtualization platform specified in an Order Form (the " Vendor Virtual Machine") into a single executable (each such Customer Application packaged with the Vendor Virtual Machine, a " Combined Application"), but only in accordance with (i) the technical specification documentation generally made available by Vendor to its customers with regard to the Development Tool and the Vendor Virtual Machine (" Documentation"), (ii) this Agreement and (iii) any term, user, central processing unit (" CPU"), computer, website, field of use or other restrictions set forth in the applicable Order Form. Licenses designated as "subscription" licenses are for a 12 month period only (unless otherwise designated in the Order Form) and shall automatically renew for subsequent periods of the same length at the then-current price unless either party provides the other with notice of cancellation 30 days or more prior to expiration of the then-current term. The term " Software" shall mean the Development Tool and the Vendor Virtual Machine and shall also include any Documentation and any Support and Maintenance releases of the same Software product provided to Customer under this Agreement; and

(b) Vendor Virtual Machine: a non-transferable, non-sublicensable, non-exclusive license to combine or incorporate a Customer Application with the Vendor Virtual Machine for the sole purpose and only to the extent necessary to create a Combined Application and to distribute Combined Applications directly to Customer's end-users specified in an Order Form (" End User(s)"), but solely (i) for use only by such End Users and without any right of redistribution, subject to any term, copy, seat, CPU, application, user or other restrictions on use of the Combined Application specified on the applicable Order Form, and (iii) pursuant to an enforceable end-user license agreement between Customer and each End User (" EULA") that is equally as protective of Vendor as Vendor's End User License Agreement, a copy of which is delivered to Customer with the Software.

1.2 Installation and Copies. Customer may copy and install on Customer's computers for use only by Customer's employees as many copies of the Development Tool as is designated in the applicable Order Form. Customer may also make a reasonable number of copies of the Development Tool for back-up and archival purposes.
1.3 Use by Affiliates. Subject to the terms and conditions of this Agreement, Customer's Affiliates may use the licenses granted to Customer, provided that (a) such use is only for Customer's benefit, (b) Customer agrees to remain responsible for each such Affiliate's compliance with the terms and conditions of this Agreement and (c) Customer provides Vendor advance written notice of each such Affiliate. Use of the Software by the Affiliates and Customer in the aggregate must be within the restrictions in the applicable Order Form. "Affiliate" means any entity under the control of Customer where "control" means ownership of or the right to control greater than fifty percent (50%) of the voting securities of such entity. The Affiliate rights granted in this section shall not apply to any "enterprise wide" licenses unless Affiliate usage is designated in the applicable Order Form.
1.4. License Restrictions. Customer shall not (and shall not allow any third party to):

(a) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, and then only with prior written notice to Vendor);

(b) distribute, sell, sublicense, rent, lease or use the Software (or any portion thereof) for time sharing, hosting, service provider or like purposes;

(d) modify any part of the Software, create a derivative work of any part of the Software, or incorporate the Software into or with other software, except to the extent expressly authorized in this Agreement or in writing by Vendor; or

(e) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software.

1.5 Conditions on Distribution of Combined Application

(a) Enforcement of EULA; Indemnification. Customer agrees to include Vendor's End User License Agreement with any copy of the Vendor Virtual Machine that Customer distributes, except that Customer may replace Vendor's End User License Agreement with, or Customer may separately enter into, a written license agreement as protective of Vendor as Vendor's End User License Agreement. Customer agrees to enforce the terms of each EULA and to notify Vendor of any known breach of such terms. Customer will defend, indemnify and hold harmless Vendor from and against any loss, cost, liability or damage, including attorneys' fees, that Vendor incurs or for which Vendor becomes liable arising from or relating to: (i) any breach by Customer of any term of this Agreement, (ii) any breach of the EULA by End Users, (iii) the EULA not being as protective of Vendor as Vendor's End User License Agreement, and (iv) third-party claims arising on account of Customer's combination or incorporation of a Customer Application with the Vendor Virtual Machine to create a Combined Application or on account of Customer's distribution of the Combined Application, provided that Customer shall have received from Vendor: (x) prompt notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (y) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (z) all reasonable necessary cooperation and assistance of Vendor.

(b) Branding. Each Combined Application shall display the following when run: (a) Vendor's splash screen and (b) the following notice: "Powered by Thinstall. Portions of this software contain Thinstall technology. Copyright © 1999-2005 Jitit. All Rights Reserved."
2. Ownership. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Vendor and its suppliers have and will retain all rights, title and interest in and to the Software (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) and all copies, modifications and derivative works thereof. Customer acknowledges that it is obtaining only a limited license right to the Software and that irrespective of any use of the words "purchase", "sale" or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement or otherwise.
3. Payment. All payments are non-refundable (except as expressly set forth in this Agreement) and shall be made in U.S. dollars within 30 days of Customer's receipt of the applicable invoice, unless otherwise specified in the applicable Order Form. Customer shall be responsible for all taxes, withholdings, duties and levies arising from the order (excluding taxes based on the net income of Vendor). Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
4. Term of Agreement.
4.1 Term. This Agreement is effective as of the Effective Date and expires on the day that the term of license for all Software licensed hereunder has expired (the "Term"). Either party may terminate this Agreement (including all related Order Forms) if the other party: (a) fails to cure any material breach of this Agreement within 30 days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 60 days thereafter)). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
4.2 Termination. Upon any expiration or termination of this Agreement, Customer shall: (a) cease any and all use of any Software and destroy all copies thereof and so certify to Vendor in writing and (b) cease all modification and distribution of the Combined Applications. Vendor shall have no liability to Customer of any type arising from termination of this Agreement. Any End User licenses granted prior to the termination of the Agreement shall survive in accordance with the terms of the applicable EULA, provided that in no event may such licenses be extended or renewed without the prior written consent of Vendor.
4.3 Survival. Sections 1.4 (License Restrictions), 1.5 (Conditions on Distribution of Combined Application), 2 (Ownership), 3 (Payment), 4 (Term of Agreement), 5.3 (Disclaimer of Warranties), 8 (Limitation of Remedies and Damages), 10 (Confidential Information) and 12 (General) shall survive any termination or expiration of this Agreement.
5. Limited Warranty and Disclaimer.
5.1 Limited Warranty. Vendor warrants to Customer that for a period of 60 days from the Effective Date (the "Warranty Period"), the Software shall operate in substantial conformity with the Documentation. Vendor does not warrant that Customer's use of the Software will be uninterrupted or error-free or that any security mechanisms implemented by the Software will not have inherent limitations. Vendor's sole liability (and Customer's exclusive remedy) for any breach of this warranty shall be, in Vendor's sole discretion, to use commercially reasonable efforts to provide Customer with an error-correction or work-around which corrects the reported non-conformity, or if Vendor determines such remedies to be impracticable within a reasonable period of time, to refund the license fee paid for the Software. Vendor shall have no obligation with respect to a warranty claim unless notified of such claim within the Warranty Period.
5.2 Exclusions. The above warranty shall not apply: (i) if the Software is used with hardware or software not specified in the Documentation; (ii) if any modifications are made to the Software by Customer or any third party; (iii) to defects in the Software due to accident, abuse or improper use by Customer; (iv) to any failure of the Vendor Virtual Machine in a Combined Application to the extent such failure is due to flaws outside of the Vendor Virtual Machine itself (v) items provided on a no charge or evaluation basis.
5.3 Disclaimer. THIS SECTION 5 IS A LIMITED WARRANTY AND EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5 THE SOFTWARE AND ALL SERVICES ARE PROVIDED "AS IS". NEITHER VENDOR NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD.
6. Support & Maintenance. Vendor shall not be liable for providing any support or maintenance services directly to End Users. Vendor shall provide the support and maintenance services set forth on Exhibit A (" Support and Maintenance") to Customer during such period as Customer has paid the applicable fee.
7. Professional Services. Vendor shall provide the number of person-days of professional consulting services (" Professional Services") purchased in the applicable Order Form. The parties acknowledge that the scope of the Professional Services provided hereunder consists solely of: (i) assistance with Software installation, deployment, and usage; and/or (ii) development and/or delivery of additional related Vendor copyrighted software or code. Customer shall have a license right to use anything delivered as part of the Professional Services subject to the terms of its license to use the Software, but Vendor shall retain all right, title and interest in and to any such work product, code or Software and any derivative, enhancement or modification thereof created by Vendor (or its agents). Professional Services may be ordered by Customer pursuant to a Statement of Work (" SOW") describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information. Each SOW must be signed by both parties before Vendor shall commence work under such SOW. If the parties do not execute a separate Statement of Work, the Services shall be provided as stated on the Order Form. Customer will reimburse Vendor for reasonable travel and lodging expenses as incurred.
8. Limitation of Remedies and Damages.
8.1 NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
8.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, VENDOR'S AND ITS SUPPLIERS' ENTIRE LIABILITY TO CUSTOMER SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO VENDOR UNDER THIS AGREEMENT.
8.3 THIS SECTION 8 SHALL NOT APPLY TO CUSTOMER WITH RESPECT TO ANY CLAIM ARISING UNDER THE SECTIONS TITLED "GRANT OF LICENSE," "LICENSE RESTRICTIONS" OR "CONFIDENTIAL INFORMATION".
8.4 The parties agree that the limitations specified in this Section 8 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
9. Indemnification. Vendor shall indemnify and hold harmless Customer from and against any claim of infringement of a U.S. patent, U.S. copyright, or U.S. trademark asserted against Customer by a third party based upon Customer's use of the Software in accordance with the terms of this Agreement, provided that Vendor shall have received from Customer: (i) prompt notice of such claim (but in any event notice in sufficient time for Vendor to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer's use of any of the Software is, or in Vendor's opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Vendor may, in its sole discretion: (a) substitute for the Software substantially functionally similar programs and documentation; (b) procure for Customer the right to continue using the Software; or if (a) and (b) are commercially impracticable, (c) terminate the Agreement and refund to Customer the license fee paid by Customer as reduced to reflect a five year straight-line depreciation from the applicable license purchase date. The foregoing indemnification obligation of Vendor shall not apply: (1) if the Software is modified by any party other than Vendor, but solely to the extent the alleged infringement is caused by such modification; (2) if the Software is combined with non-Vendor products or processes (including the combination of Customer Applications with the Vendor Virtual Machine to create Combined Applications), but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Software; (4) to any release of the Software other than the most current release; or (5) to any third-party code contained within the Software. THIS SECTION 9 SETS FORTH VENDOR'S AND ITS SUPPLIERS' SOLE LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
10. Confidential Information. Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (" Receiving Party") from the disclosing party (" Disclosing Party") constitute the confidential property of the Disclosing Party (" Confidential Information"), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, documentation or technical information provided by Vendor (or its agents), performance information relating to the Software, and the terms of this Agreement shall be deemed Confidential Information of Vendor without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party's nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
11. Co-Marketing.
11.1 Joint Press Release. At the request of Vendor, Customer agrees to the issuance of a joint press release (" Press Release") on a mutually agreed upon date or the 90 ^th day from the Effective Date, whichever is earlier. Each party will have the right to approve the Press Release in advance, but such approval will not be unreasonably delayed or withheld.
11.2 Case Study. Customer agrees to be the subject of a case study written by Vendor which will discuss Customer's use and distribution of the Software. Customer will be able to approve the case study in advance, but such approval will not be unreasonably delayed or withheld.
11.3 Customer Acknowledgement. Customer agrees that Vendor may disclose Customer as a customer of Vendor.

12. General.
12.1 Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of the other party's assets and/or voting securities. Any attempt to transfer or assign this Agreement without such written consent will be null and void.
12.2 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
12.3 Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Unless waived by Vendor in its sole discretion, the jurisdiction and venue for actions related to the subject matter hereof shall be the California state and United States federal courts located in San Francisco, California, and both parties hereby submit to the personal jurisdiction of such courts.
12.4 Attorneys' Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys' fees and costs in connection with such action.
12.5 Notices and Reports. Any notice or report hereunder shall be in writing to the notice address set forth above and shall be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered U.S. mail (return receipt requested); or (iii) one day after it is sent if by next day delivery by a major commercial delivery service.
12.6 Amendments; Waivers. 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. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
12.7 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
12.8 Audit Rights. Upon Vendor's written request, Customer shall certify in a signed writing that Customer's use of the Software is in full compliance with the terms of this Agreement (including any copy and user limitations). With prior reasonable notice of at least 10 days, Vendor may audit the copies of the Software in use by Customer provided such audit is during regular business hours; Customer is responsible for such audit costs only in the event the audit reveals a discrepancy, of 5% or greater, on the part of Customer.
12.9 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent.
12.10 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster or refusal of a license by a government agency.
12.11 Government End-Users. As defined in U.S. Federal Acquisition Regulations (FAR), the Software and accompanying documentation licensed in this Agreement are deemed to be "commercial items" and "commercial computer software" and "commercial computer software documentation." Consistent with applicable FAR sections, any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement. Further, Customer represents and warrants that it is not a governmental entity or agency nor a quasi-governmental entity or agency.
12.12 Export Compliance. Customer acknowledges that the Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer shall not and shall not allow any third-party to remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department's Table of Denial Orders or U.S. Treasury Department's list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Software is further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.

13.

EXHIBIT A

SUPPORT & MAINTENANCE TERMS

For such period as Customer has paid the applicable annual fee (the " Support Term"), Vendor shall provide Customer with the Support and Maintenance (as defined below) set forth below. Vendor offers three levels of Support; Customer must purchase the same level of support for all Software. Vendor shall not be obligated to provide any Maintenance or Support to or otherwise communicate directly with any End User.

1. Definitions.
Error: means any Priority A Error, Priority B Error or Priority C Error.
Incident: means a request for assistance submitted through Vendor's online support system or through calls to Vendor's phone support desk, provided that requests for assistance caused by an Error in the Software shall not be considered an Incident.
Maintenance: means Major and Minor Releases of the same Software product(s) licensed by Customer.
Major Releases: means generally commercially released major new releases, modifications and/or enhancements to the same Software product as designated by a change in the number to the left of the decimal in the version number. Major Releases do not include separate or different products marketed by Vendor under a different name even if such products are compatible with the Software.
Minor Releases: means generally commercially released code corrections, patches, updates and minor version releases of the same Software product as designated by a change in the number to the right of the decimal in the version number.
Priority A Error: means an error that renders the Software inoperative or causes catastrophic failure in a production environment.
Priority B Errors: means an error that significantly degrades performance of the Software or materially restricts Customer's use of the functionality of the Software.
Priority C Errors: means an error that causes only a minor impact on Customer's use of the Software.
Support: means telephone or email support regarding use and deployment of the Software

2. Standard Service. For such period as Customer has paid the applicable annual fee, Vendor shall provide Customer with "Standard" service consisting of the following: (i) email support regarding use and deployment of the Software from 9:00 a.m. to 5:00 p.m. Pacific Time on Monday through Friday (excluding Vendor holidays) for up to 5 Incidents; (ii) Maintenance, and (iii) support with respect to Errors as set forth below.
3. Extended Service. For such period as Customer has paid the applicable annual fee, Vendor shall provide Customer with "Extended" service consisting of the following: (i) email or telephone support regarding use and deployment of the Software from 9:00 a.m. to 5:00 p.m. Pacific Time on Monday through Friday (excluding Vendor holidays) for up to 10 Incidents; (ii) Maintenance, and (iii) support with respect to Errors as set forth below.
4. Premium Service. For such period as Customer has paid the applicable annual fee, Vendor shall provide Customer with "Premium" service consisting of the following: (i) email or telephone support regarding use and deployment of the Software 24 hours per day Monday through Friday (excluding Vendor holidays) for an unlimited number of Incidents; (ii) Maintenance, and (iii) support with respect to Errors as set forth below.
5. Error Designation. Vendor's support personnel will (a) verify Customer detected Errors, provided that the Errors can be recreated with an unmodified version of the Software and (b) determine the severity of the support request and whether the support request is a Priority A Error, a Priority B Error, a Priority C Error or not an Error.
6. Error Response. Upon receipt of notice of an Error, Vendor shall assign appropriate technical personnel to the issue and use reasonable commercial efforts to resolve the Error in accordance with the target response times set forth below.
Support Level: Initial Response Time
Standard 48 hours
Extended 24 hours
Premium 4 hours

7. Back Support. Support and Maintenance is provided for the current release of the Software and the immediately prior sequential release for a period of 6 months from the date of the current release.
8. Renewals. Support and Maintenance shall renew automatically at Vendor's then-current rates upon each anniversary of the Effective Date, unless either Customer or Vendor has given the other party 30 days prior written notice of cancellation. Any price increase to the Support and Maintenance renewal fees for the first 3 year annual renewal periods shall not exceed 10%. If Customer elects not to renew Support and Maintenance for successive terms, in order to bring Customer's Software up to date with the then-current Maintenance, Customer may reenroll only upon payment to Vendor of the then-applicable annual fee plus the fees which would have been due had Customer remained enrolled during the lapse period.
9. Exclusions. The following are excluded from Vendor's Support and Maintenance obligations: (i) Software that is used on or in conjunction with hardware or software other than as specified in the Documentation; (ii) altered or modified Software, unless altered or modified by Vendor; (iii) defects in the Software due to accident, hardware malfunction, abuse or improper use; (iv) any version of the Software for which Maintenance services have been discontinued by Vendor; (v) evaluation software or other software provided at no charge; or (vi) any Software sold separately by Vendor, including, without limitation, consulting code, unless generally made available to Vendor's Support and Maintenance customers at no additional charge for the applicable Software.