DirectoryMark Source Code and Executable Code License Agreement

1. Limited License Grant. By using the software distributed with this Agreement, Mindcraft grants to you ("Licensee") a non-exclusive, non-transferable limited license to use the DirectoryMark Source Code, DirectoryMark Executable Code, all executable scripts, and accompanying documentation ("DirectoryMark") subject to the terms specified herein. Licensee may make as many copies of DirectoryMark Executable Code and executable scripts as needed to test servers within one physical test laboratory, provided that this License conspicuously appears with all copies of DirectoryMark. Except for the foregoing, Licensee may not re-distribute DirectoryMark in whole or in part, either separately or included with a product or service. Licensee agrees to keep DirectoryMark Source Code confidential and not to disclose it to any third party. When publishing test results produced by DirectoryMark, Licensee agrees: (i) to follow the run rules for the version of DirectoryMark used, including updates to the run rules made prior to the test; (ii) to use the phrase "Mindcraft's DirectoryMark <version>" in a prominent place, where <version> is replaced by the version identifier for the version of DirectoryMark used; and (ii) to provide the Universal Resource Locator ("URL") for DirectoryMark (http://www.mindcraft.com/directorymark) either as a link or in print.

2. Restrictions. DirectoryMark is copyrighted information of Mindcraft and/or Netscape Communications Corporation ("Netscape") and Mindcraft and Netscape as indicated in the copyright notice in each file retain title to all copies. DirectoryMark may not be leased, assigned, or sublicensed, in whole or in part. Licensee may create derivative works of DirectoryMark for its own internal purposes but may not distribute them in whole or in part to any third party without Mindcraft’s prior written approval. New test scripts and new test databases are not considered derivative works and may be distributed to third parties.

3. Trademarks and Logos. Except as specified in Paragraph 1 of this License, Licensee is not authorized to use any Mindcraft name, trademark or logo in any other way. Licensee acknowledges that Mindcraft owns the Mindcraft trademark, that Mindcraft is a registered trademark of Mindcraft, Inc. in the United States, and that Mindcraft has exclusive rights to the DirectoryMark trademark.

4. Disclaimer of Warranty. Licensee expressly acknowledges and agrees that use of DirectoryMark is at its sole risk. DirectoryMark is provided "AS IS," without a warranty of any kind. ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE HEREBY EXCLUDED.

MINDCRAFT AND NETSCAPE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN DIRECTORYMARK WILL MEET LICENSEE'S REQUIREMENTS, OR THAT THE OPERATION OF DIRECTORYMARK WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN DIRECTORYMARK WILL BE CORRECTED. FURTHERMORE, MINDCRAFT AND NETSCAPE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF DIRECTORYMARK IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MINDCRAFT OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SHOULD DIRECTORYMARK PROVE DEFECTIVE, LICENSEE (AND NOT MINDCRAFT OR ITS AUTHORIZED REPRESENTATIVE) SHALL ASSUME AND PAY THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

5. Limitation of Liability. MINDCRAFT AND NETSCAPE SHALL NOT BE LIABLE FOR ANY DAMAGES SUFFERED BY LICENSEE OR ANY THIRD PARTY AS A RESULT OF USING OR DISTRIBUTING DIRECTORYMARK. IN NO EVENT WILL MINDCRAFT OR NETSCAPE BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OF OR INABILITY TO USE DIRECTORYMARK, EVEN IF MINDCRAFT OR NETSCAPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MINDCRAFT'S OR NETSCAPE’S TOTAL LIABILITY TO LICENSEE FOR ALL DAMAGES, LOSSES, CLAIMS AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT PAID BY LICENSEE FOR DIRECTORYMARK.

6. Termination. Licensee may terminate this License at any time by destroying all copies of DirectoryMark. This License will terminate immediately without notice from Mindcraft if Licensee fails to comply with any provision of this License. Upon such termination, Licensee must destroy all copies of DirectoryMark. The provisions of Paragraphs 3, 4, 5, 9, and 10 survive termination of this Agreement.

7. Export Regulations. DirectoryMark, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import DirectoryMark. DirectoryMark may not be downloaded, or otherwise exported or re-exported (i) into, or to a national or resident of, Cuba, Iraq, Iran, North Korea, Libya, Sudan, Syria or any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nations or the U.S. Commerce Department's Table of Denial Orders.

8. Restricted Rights. DirectoryMark is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire Covered Code with only those rights set forth herein.

9. Governing Law and Disputes. California law and controlling U.S. Federal law will govern any action related to this License. No choice of law rules of any jurisdiction will apply. This License represents the complete agreement concerning subject matter hereof. If any provision of this License is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. This License shall be governed by California law provisions (except to the extent applicable law, if any, provides otherwise), excluding its conflict-of-law provisions. With respect to disputes: (a) unless otherwise agreed in writing, all disputes relating to this License (excepting any dispute relating to intellectual property rights) shall be subject to final and binding arbitration, with the losing party paying all costs of arbitration; (b) any arbitration relating to this Agreement shall be held in Santa Clara County, California, under the auspices of JAMS/EndDispute; and (c) any litigation relating to this Agreement shall be subject to the jurisdiction of the Federal Courts of the Northern District of California, with venue lying in Santa Clara County, California, with the losing party responsible for costs, including without limitation, court costs and reasonable attorneys fees and expenses. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any law or regulation that provides that the language of a contract shall be construed against the drafter shall not apply to this License.

10. Severability. If any of the provisions of this License are held to be in violation of applicable law, void, or unenforceable in any jurisdiction, then such provisions are herewith waived to the extent necessary for the License to be otherwise enforceable in such jurisdiction. However, if in Mindcraft's opinion deletion of any provisions of the License by operation of this paragraph unreasonably compromises the rights or increase the liabilities of Mindcraft or Netscape, Mindcraft reserves the right to terminate the License and refund the fee paid by Licensee, if any, as Licensee's sole and exclusive remedy.

11. Complete Agreement. This License constitutes the entire agreement between the parties with respect to the use of DirectoryMark and supersedes all prior or contemporaneous representations, understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by a duly authorized representative of Mindcraft.