SilverMark Software Products License Agreement Legal Notice from SilverMark, Inc.: This is a legal agreement (the "Agreement") between you and SilverMark, Inc. It is important that you read this Agreement before opening the package containing the SilverMark, Inc. software or, if you are acquiring the software by electronic means, downloading or installing the SilverMark, Inc. software. By opening the package containing the software, or by downloading or installing the software, you are accepting and agreeing to all the terms of this Agreement. If you do not agree with the terms of this Agreement, then do not open the package containing the software or, if you are acquiring the software by electronic means, then do not download or install the software; instead, return it to SilverMark, Inc. or to the place where you acquired it for a refund. If at any time you violate the terms of this Agreement, then your license to use the SilverMark, Inc. software product will terminate. Upon termination, you must destroy all copies of the software product. This Software License Agreement (the "Agreement") is made as of _________ (the "Effective Date"), by and between SilverMark, Inc., a North Carolina__________ corporation, with a principal place of business at 5511 Capital Center Drive, Raleigh, NC 27606_ ("SilverMark"), and _______________________________________________________________________ The software ("Software" which specifically means the Smalltalk Test Mentor?, and all whole or partial copies of it, including portions merged into other programs) and documentation (together, the "Materials") are furnished to the individual or legal entity ordering the Materials ("Licensee") subject to these terms and conditions. This is the entire agreement ("Agreement", which specifically means the terms and conditions governing the use of the Materials) between the parties with respect to the materials and all other terms are rejected. This Agreement may only be modified in writing by the Licensing Manager of SilverMark. PROPRIETARY PROTECTION AND RESTRICTIONS The Materials are owned by SilverMark, and are copyrighted and licensed, not sold. The Materials are protected under United States intellectual property laws and applicable international laws and treaties. The Licensee may not remove or alter ownership and copyright notices embedded in or on the Materials. No title to any intellectual property in the Materials is assigned under this Agreement. The Licensee does receive title to the media on which the Materials are delivered. SilverMark grants Licensee a nonexclusive license ("License", specifically meaning permission under the terms and conditions of this Agreement) for the Software. If SilverMark grants Licensee multiple Licenses for the Materials, the terms of this Agreement apply to each License. LICENSE GRANT The Licensee is granted the right to provide each copy of purchased Software to a designated, single person ("Designate") for the sole purpose of using the Software on behalf of the Licensee under these terms and conditions. If Software are provided to a Designate, this Agreement must be provided with it. During the time Software are provided to a Designate, the Licensee retains all obligations but waives any rights to use the Software and the Designate is bound by the terms of this Agreement. In addition to the rights provided under United States copyright law and except as required by local law and treaties, Licensee or Designate, is granted the following rights: o For each licensed copy, Licensee or Designate may use the Software on only one machine at any one time. Licensee agrees to ensure that anyone who uses the Software (accessed either locally or remotely) does so only for authorized use and complies with the terms of this Agreement. o The Licensee or Designate may copy the Software for backup consistent with current industry practices. o The Licensee may not include any parts of the Materials in a deployment system. A "Deployment System" means any end-user software application. The copyright notice from the Materials and any other legend of ownership on each Deployment System copy or partial copy must be included with each Deployment System. o The Licensee may transfer all rights and obligations to another individual or entity, provided that the transferring Licensee permanently ceases use of the Materials and destroys all copies, backups and Deployment Systems that have any parts of the Software embedded within them. To transfer such rights and obligations, Licensee must transfer a copy of this Agreement, and at least one complete, unaltered copy of the Software to the other party. The License is then terminated. This transfer right does not authorize The Licensee to act as a distributor. CHARGES, PAYMENT AND TAXES Payment must be made to the party (either SilverMark or its reseller) from whom the Licensee acquired the Materials. If the Program was acquired from SilverMark, the Licensee agrees to pay SilverMark the fees listed in the Attachments. If any authority imposes a duty, tax, levy or fee (excluding those based on SilverMark's net income) on the Materials supplied by SilverMark under this Agreement, the Licensee agrees to pay that amount as SilverMark specifies. The Licensee agrees to notify SilverMark or its reseller and pay any applicable charges if the number of users is increased. UPDATES AND SUPPORT This license Agreement does not grant the Licensee rights to any improvements, modifications, enhancements, or updates to the Materials. Such updates may be purchased separately from SilverMark as Premium Support, when available, Telephone support and training, if available, shall be provided at SilverMark's standard rates, terms , and conditions then in effect. The Licensee is granted support in the form of responses to questions posed through E-mail ( "E-Mail", which specifically means electronic correspondence over the Internet) for a period of three (3) months from the date of purchase. LIMITED WARRANTY AND WARRANTY DISCLAIMER THE MATERIALS ARE BEING PROVIDED ON AN "AS IS" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND EXCEPT AS OTHERWISE SPECIFIED. SilverMark does not warrant uninterrupted or error-free operation of the Software. Unless otherwise required by applicable law, SilverMark warrants that the media on which the Software are furnished and that SilverMark's intended encoding of the Software on the media will be free from material defects and that the software will perform substantially in accordance with the technical specifications included or referred to in the documentation for a period of three (3) months from the date of shipment. If any valid claim of medium or intended encoding defect is made during this warrantee period, SilverMark will provide a replacement. SilverMark does not warrant uninterrupted or error-free operation of the Materials. THESE WARRANTIES REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT OR ANY ANALOGUES THERETO. These warranties give you specific legal rights, and you may also have other rights which vary from jurisdiction to jurisdiction. Some jurisdictions do not allow the exclusion or limitation of implied warranties, so the above exclusion or limitation may not apply to you. In that event, such warranties are limited in duration to the warranty period. No warranties apply after that period. LIMITATION OF LIABILITY The Licensee is responsible for the selection of the Software and for the use of and results obtained from the Software. Unless otherwise required by applicable law, SILVERMARK WILL NOT BE LIABLE FOR ANY SPECIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS), IRRESPECTIVE OF WHETHER SILVERMARK, OR ITS RESELLER, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.AND SILVERMARK'S TOTAL LIABILITY INCLUDING BUT NOT LIMITED TO ANY POSSIBLE LIABILITY FOR INDEMNITY, DEFENSE AND HOLD HARMLESS OBLIGATIONS SHALL NOT EXCEED THE TOTAL AMOUNT PAID TO SILVERMARK BY LICENSEE UNDER THIS AGREEMENT. LICENSEE AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS SILVERMARK FROM AND AGAINST ANY AMOUNT IN EXCESS OF THIS LIMITATION AND THIS LIMITATION SHALL APPLY EVEN IN THE EVENT OF BREACH OF CONTRACT, ACTIVE OR PASSIVE NEGLIGENSE OR OTHERWISE OF SILVERMAK OR ANY CLAIM OF FAILURE OF ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. SilverMark will not be liable for 1) loss of, or damage to, your records or data or 2) any damages claimed by you based on any third party claim. TERM AND TERMINATION This License shall be valid from the date purchased by the Licensee and is perpetual unless terminated by mutual consent, by the Licensee's election or by SilverMark upon the Licensee's breach of this License Agreement. In the event of any termination of this license Agreement, the Licensee must immediately return to SilverMark all Materials and certify to SilverMark that all copies of the Software have been destroyed. RESTRICTIONS You agree that you may not, for each licensed copy: (a) use the Software simultaneously on more than one central processing unit. (b) copy the Software, except and to the extent provided herein. (c) sublicense, distribute, disclose or transfer the Materials in whole or in part, to any third party, without the consent of SilverMark. (d) use the Materials or any portion thereof after any expiration, termination or cancellation of this Agreement or any License granted hereunder. (e) utilize the Software in any manner to create a new testing product based upon the content of the Software. GENERAL The Licensee agrees to comply with all applicable export laws and regulations. This Agreement is governed by the laws of the State of North Carolina and the United States of America without conflict of laws principals. All questions concerning this Agreement should be directed to: Licensing, SilverMark, Inc. 5511 Capital Center Drive, Suite 510, Raleigh, NC 27606 (919) 858-8300. In the event of a dispute over the terms of this Agreement, the parties hereto consent that venue for the purposes of this Agreement, shall be considered the County of Wake and the State of North Carolina. In the event of a legal dispute concerning this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and costs of suit as may be determined by the court. DISTRIBUTION WITHIN DEPLOYMENT SYSTEMS Deployment Systems containing any part of the Materials not specifically excluded must be labeled as follows: CONTAINS Smalltalk Test Mentor Runtime code (c) Copyright SilverMark, Inc. 1996-2002 All Rights Reserved NOTICE OF U.S. GOVERNMENT USERS RESTRICTED RIGHTS If provided to the US Government, the Materials are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the US Government is subject to restrictions as set forth in subparagraph (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR Supplement. Contractor is , SilverMark, Inc. 5511 Capital Center Drive, Suite 510, Raleigh, NC 27606. ------------------------------------------------------------------------------------------------------------ PREMIUM SUPPORT MEMBERSHIP AGREEMENT If the product version you have acquired includes "Premium Support", the following information applies to you: THIS PREMIUM SUPPORT MEMBERSHIP AGREEMENT (this "Support Agreement") is entered into between SilverMark, Inc. and the company or person who has purchased a license for The Product that includes Premium Support Membership ("Licensee") SilverMark, Inc. licenses the software product line known as Smalltalk Test Mentor. You warrant that Licensee has purchased a license(s) to use one or more product(s) ("The Product") in the Smalltalk Test Mentor product line. SilverMark, Inc. and you agree to the following: 1. SilverMark, Inc. agrees to provide Licensee with access to no-added-cost updates of the Product (via Supplier's web site, ftp site, or both) during the term of this Support Agreement. 2. SilverMark, Inc. agrees to provide priority technical support service to Licensee in the English language via e-mail, between the hours of 9:00am and 5:00pm EST, Monday through Friday during the term of this Support Agreement. Priority technical support in languages other than English is available on a more limited basis. See the Support section of SilverMark, Inc.'s website (www.silvermark.com) for contact and service information and information about support availability in other languages. 3. At each renewal, you shall pay the then current price for Premium Support for each of your copies of the Product. 4. You agree to pay when due (or, if necessary, reimburse SilverMark, Inc. for) any applicable sales, use, property, excise, VAT, and other similar taxes. 5. This Support Agreement has an initial term and extends in successive terms until cancelled in writing by SilverMark, Inc. or by you. Cancellation shall be effective upon delivery of the written notice. You acknowledge that any unused time during a one-year time will not result in a refund, and You further acknowledge that cancellation will have the effects described in paragraph 6, below. 6. SilverMark, Inc. shall invoice you for renewal payments for Premium Support until cancelled. Failure to make payment will cancel Licensee's Premium Support. You acknowledge that, in the event Premium Support is cancelled, you will not be able to re-establish Premium Support coverage except by purchasing a new license(s). 7. This Support Agreement is entered and is to be performed in the State of North Carolina, USA. This Support Agreement shall be governed by and construed under the laws of the State of North Carolina, USA. 8. By purchasing a version of The Product that includes Premium Support Membership, You agree to be bound by the terms of the Premium Support Membership Agreement provisions described herein. 9. You and SilverMark agree to be bound by any additional terms listed in attachments relating to Premium Support, if provided here. BY OPENING THE PACKAGE CONTAINING THE SOFTWARE, OR BY INSTALLING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE FOREGOING AND THAT YOU AGREE TO BE BOUND THEREBY. 3