1.1 “Application” means software application(s) created by You or a Third Party (as defined below) using a Rogue Wave Development license (as defined below).

1.2 “Computer” means primarily a single computing device containing not more than 16 processing cores used by a single end user and that utilizes an operating system that runs the Software (as defined below). A “Computer” can be either a PC (defined as having up to but not more than eight (8) processing cores), or a workstation (defined as having at least eight (8) but not more than sixteen (16) processing cores).

1.3 “Copy” means a physical copy, as on a CD, or loading the Software or an Application into RAM or permanent memory of a Computer.

1.4 “Deploy” or “Deployment” means each time You make a Copy of an Application, when the Application calls upon the Software to execute pursuant to an Application Run-Time License (as defined below) for PV-WAVE or JWAVE, as applicable.

1.5 “Development” means a license for Internal use of the Software to create Applications, and/or a license for Internal use of the Software as a standalone analytics tool, as applicable.

1.6 “Documentation” means printed, electronic or online documentation purchased from Rogue Wave or provided by Rogue Wave to licensees of its corresponding proprietary PV-WAVE and JWAVE software libraries.

1.7 “Floating” Users mean Users that may concurrently use the Software via access to one or more Servers at the Site for development or in connection with Deployment pursuant to an Application Run-Time license, as the case may be.

1.8 “Internal” means use is limited to Licensee, its employees, and contractors performing work for Licensee's benefit, but not Licensee's customers or other third parties.

1.9 “License Fee Agreement” means the business transaction document(s) between You and Rogue Wave (such as, but not limited to Rogue Wave quotations, Your purchase orders and Rogue Wave's corresponding acknowledgements, and Rogue Wave invoices) which define the agreed parameters of use of the Software, including pricing and the types of licenses (Development and/or Run-Time licenses), and which identify the applicable Server(s) and/or Computer(s) and/or Platforms on which You may use the Software.

1.10 “Maintenance and Support” means the technical support and software maintenance services on the Software for which Licensee has paid the Maintenance and Support fees.

1.11 “Node Lock” means use is limited to a specifically identified Computer or Server at the Site.

1.12 “Pack” means the number of authorized Development or Application Run-Time Node Lock licenses of the Software, as the case may be, allowing access via a Server to the Software for Development of one (1) or more Applications, or enabling display via a Server of the Software output pursuant Application Run-Time Node Lock licenses, respectively, when sold as a group of Development or Application Run-Time licenses. Packs only apply to use of the Software or Application(s) using a Run-Time version of the Software via a Server.

1.13 “Platform” means the operating system on which You are licensed to use the Software via access to one or more Servers at the Site for development or in connection with Deployment pursuant to an Application Run-Time license, as the case may be .

1.14 “Run-Time(s)” means the authority for one (1) or more Users to run an Application, developed pursuant to a Rogue Wave Software Development license, with a particular application version of the Software, whether PV-WAVE or JWAVE. Each Run-Time only applies to those versions of the Software that consist of an executable PV-WAVE or JWAVE procedure (i.e. previously compiled in .cpr file format). A Run-Time can only be run or executed in connection with an Application and cannot be used for creating or modifying Software code or for other Development purposes.

1.15 “Seat(s)” means the maximum authorized number of Node Lock or Floating Users of the Software.

1.16 “Server” means a multiple processor-computing device accessed and used by more than a single end user that has more than four (4) processors and that utilizes an operating system that runs the Software.

1.17 “Site” is the geographical location of the Server(s) and/or Computers (i) on which the Software is to be installed and used, as specified in Your License Fee Agreement with Rogue Wave, or, if not specified therein (ii) where the Software is delivered to You by Rogue Wave.

1.18 “Software” means Rogue Wave's proprietary PV-WAVE and JWAVE software, as specified in the applicable License Fee Agreement, and includes the corresponding Documentation and, if You have purchased support and maintenance, any Updates and New Releases (as those terms are defined in Exhibit A attached hereto and made a part hereof) subsequently provided by Rogue Wave to Licensee. Software does not include any third-party software products that may be embedded in or bundled with the Software, which products are separately licensed by the copyright holder.

1.19 “Third Party” means (i) if You are an individual, and are the only authorized User of the Software pursuant to this License Agreement, any other individual (including co-workers), and any legal entity (including Your employer), or (ii) if You are a legal entity, any individual not employed by You, and any other legal entity such as Your customers, suppliers and affiliated companies.

1.20 “User” refers (i) for Development licenses, to one or more individuals each of whom will Internally use a Copy of Software on only one (1) Computer, or multiple users who may access the Software via a Server for development of one (1) or more Application(s), and/or use the Software as a standalone analytics tool; and (ii) for Application Run-Time licenses, to each user of a Copy of one (1) or more Application(s), which Application(s) calls upon the Software to execute on a Computer, or via a Server.

2.1 Development License Grant. Subject to the terms and conditions of this License Agreement, and upon payment of the applicable fees, You are granted a perpetual, non-transferable, non-exclusive, fee bearing Development license to install one (1) Copy of the Software in object code for Internal use by the number of Users and on the type of Computer(s) and/or Server(s) and/or Platform(s) specified in Your License Fee Agreement with Rogue Wave, for purpose(s) of allowing Users to create and test Applications, and/or for standalone use as an analytic tool, as the case may be. This Development license is limited to Internal use of the Software with the authorized operating system(s) (i) on the number of Computers with the number of individual Users specified in Your License Fee Agreement with Rogue Wave (and for which You have paid the applicable license fees), which License Fee Agreement may also specify Floating User and/or Node Lock limitations corresponding to the number and type of licensed Computers, (ii) on one or more Servers permitting access as specified in Your License Fee Agreement with Rogue Wave, which License Fee Agreement may also specify Floating User, Seat and/or Node Lock limitations corresponding to the number and type of licensed Servers, and/or (iii) on a Computer or a Server as a standalone analytics tool, as the case may be. IF NOT OTHERWISE SPECIFIED IN THE APPLICABLE LICENSE FEE AGREEMENT BETWEEN YOU AND ROGUE WAVE, YOUR DEVELOPMENT LICENSE SHALL BE FOR A SINGLE USER ON A PC RUNNING THE WINDOWS (R) OPERATING SYSTEM. You may make a single backup Copy of the Software for archival purposes, but You shall not make any Copies of the Software for use on any Computer, or on any Server, located outside the Site (except to access one (1) copy of the Software on a Computer's memory for purposes authorized by this License Agreement while off-Site for transitory, temporary business purposes). You shall not (x) allow more than the authorized numbers of Users to use the Software or Documentation for development of Applications, (y) allow any Users to use the Software or Documentation for any purpose except for development of Applications, and (z) allow more than one (1) User to use the Software or Documentation on each Computer, unless specifically authorized otherwise by Rogue Wave. The Software may be used by You for development purposes to create Application(s) that use calls to compile and link to the Software.

2.2 Application Run-Time License Grant.

11.1 Severability. If any term or provision of the License Agreement is found to be invalid under any applicable statute or rule of law, then, that provision notwithstanding, the License Agreement will remain in full force and effect, and in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.

11.2 Force Majeure. Neither party will be deemed to be in breach of this License Agreement, nor otherwise liable to the other, by reason of any delay in performance or non-performance of any of its obligations under this License Agreement arising out matters beyond the reasonable control of a party, including, war, strikes, lock outs, or industrial disputes (except in relation to a party's own workforce), outbreak of hostilities, riots, civil disturbances, pandemics, epidemics, or quarantines, acts or orders of any government department or constituted body, fire, explosion, earthquake, flood, acts of God, or acts of terrorism; provided, however, that no event will be treated as beyond the reasonable control of a party if it is attributable to a willful act or omission by such party, or any failure by such party to take reasonable precautions or any failure to mitigate or take reasonable steps to overcome such event. If the performance of the impacted party is prevented for a period of thirty (30) days or more, the party not affected may terminate this Agreement upon providing seven (7) days’ advance written notice.

11.3 Governing Law/Forum Selection. This License Agreement and any claim, cause of action or dispute arising out of, or related thereto, shall be governed by and construed in accordance with the laws of the State of Delaware, regardless of Licensee’s country of origin or where Licensee uses the licenses from, without giving effect to any conflict of law principles, which would result in the application of the laws of a jurisdiction other than the State of Delaware. Any dispute, claim, or controversy arising out of, connected with, or relating to this License Agreement, the Software, or any use related thereto, will be submitted to the sole and exclusive jurisdiction of the competent court located in State of Delaware. The 1980 United Nations Convention on Contracts for the International Sale of Goods, any state’s enactment of the Uniform Computer Information Transactions Act, and the United Nations Convention on the Limitation Period in the International Sale of Goods, and any subsequent revisions thereto, do not apply to this License Agreement.

11.4 No Joint Venture. Nothing contained in the License Agreement will be construed so as to make the parties partners or joint venturers or to permit either party to bind the other party to any agreement or purport to act on behalf of the other party in any respect.

11.5 Waiver and Modifications. Failure by either party to enforce any rights under this License Agreement will not be construed as a waiver of such rights, and a waiver by either party of a default hereunder in one or more instances will not be construed as constituting a continuing waiver or as a waiver in other instances. No modification of this License Agreement shall be binding unless it is in writing and is signed by an authorized representative of the party against whom enforcement of the modification is sought.

11.6 Import/Export Law. Licensee may not import, use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained.

11.7 Taxes. License fees and Maintenance and Support fees are exclusive of, and Licensee will pay, all shipping charges and all taxes, duties and other charges or fees imposed by governmental authorities arising out of the License Agreement or the use of the Software by Licensee and its Users(s). In addition, if any Software will be delivered to points outside of the United States, all export duties, import duties, tariffs, value added taxes, licenses and other similar taxes, duties and fees will be paid by Licensee. If Licensee is required by the laws of any jurisdiction to deduct or withhold from any payment to Rogue Wave any income taxes which may be levied against Rogue Wave, then Licensee’s payment shall be increased to an amount equal to the pre-tax payment due divided by a factor equal to one minus the applicable foreign tax rate. The tax shall then be applied to and deducted from the increased payment.

11.8 Entire Agreement. This License Agreement, including all invoices hereunder, constitutes the sole and entire agreement of the parties with respect to the subject matter hereof and supersedes and cancels any prior and contemporaneous oral or written proposals, promises, or agreements. There are no promises, covenants or undertakings other than those expressly set forth in this License Agreement. If Licensee issues a Licensee purchase order, or any other Licensee-generated documentation, and the terms and conditions conflict with this License Agreement, the terms and conditions contained in this License Agreement, including all invoices incorporated hereunder, will control. For purposes of clarity, no terms or conditions, including any pre-printed or boilerplate terms and conditions, stated in any Licensee purchase order, or in any other Licensee documentation, will be incorporated into or form any part of this License Agreement, and all such terms or conditions will be null and void and of no force and effect.

11.9 Assignment. This License Agreement, or any of your rights and obligations under this License Agreement, cannot be assigned or otherwise transferred in whole or in part, and any such attempted assignment or transfer by Licensee in violation of the foregoing will be null and void.

11.10 U.S. Government Rights. The Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth in this License Agreement. The software licensed to civilian agencies is licensed with Restricted Rights pursuant to FAR 52.227-19.