Software Licensing

ARTESYN EMBEDDED TECHNOLOGIES, INC.
SOFTWARE/FIRMWARE LICENSE AGREEMENT

This Agreement” is entered into between Artesyn Embedded Technologies, Inc. (“ARTESYN”), a Florida corporation with its principal place of business located at 2900 S. Diablo Way, Suite B-100, Tempe, Arizona and CUSTOMER", the recipient of the computer files disclosed with or identified in this Agreement (“Software”). Under this Agreement, CUSTOMER is granted a limited license according to the terms and conditions contained herein unless CUSTOMER has a current agreement with ARTESYN regarding the Software, in which case those mutually agreed upon terms and conditions will apply instead.

DOWNLOAD OR USE THE SOFTWARE CONFIRMS THAT CUSTOMER AGREES TO THESE TERMS AND CONDITIONS!

DEFINITIONS:

HARDWARE means the Artesyn or Astec hardware product the SOFTWARE listed in Schedule A is intended by Artesyn to run on.

SOFTWARE means computer programs in Object Code format and related documentation listed in Schedule A or supplied with the HARDWARE, which may be Pre-installed, or not pre-installed, or delivered electronically or by any other method by ARTESYN or its distributors or other authorized third parties.

1. GRANT OF LICENSE:

(a) ARTESYN grants to CUSTOMER a non-exclusive, non-transferable license (i) to execute and use the SOFTWARE, provided that it is executed and used by CUSTOMER solely in connection with operation of the HARDWARE; (ii) to sublicense and distribute to CUSTOMER’s end user customers, the SOFTWARE, provided that copies are sublicensed and distributed by CUSTOMER pre-installed on, and solely for use in connection with the operation of, the HARDWARE; and (iii) to grant CUSTOMER's end user customers a non-exclusive, non-transferable license to execute and use the Object Code copies of such SOFTWARE, provided such Object Code copies are executed and used by CUSTOMER's end user customers solely in connection with operation of the HARDWARE on which such Object Code copies were pre-installed by ARTESYN.

(b) The SOFTWARE licensed under this AGREEMENT may contain certain third party software, which, if applicable, is listed in Schedule A. Such third party software is licensed to CUSTOMER in accordance with the standard license terms and restrictions of the copyright owner which may be attached hereto, unless the copyright owner has granted to ARTESYN the right to sublicense the third party software pursuant to this AGREEMENT (in which case this AGREEMENT applies and the copyright owner will have all of its rights and protections under this AGREEMENT).

(c) The SOFTWARE may contain certain Open Source Software, which, if applicable, is listed in Schedule A. Such Open Source Software is licensed to CUSTOMER in accordance with, and CUSTOMER agrees to abide by, the provisions of the standard license of the copyright owner and not this AGREEMENT. Upon request by CUSTOMER, ARTESYN will provide to CUSTOMER a copy of the applicable standard license (or specify where that license may be found; and provide to CUSTOMER a copy of the Open Source Software source code if it is publicly available without charge (although a distribution fee or a charge for related services may be applicable).

2. RIGHTS AND LIMITATIONS:

(a) CUSTOMER may not reverse engineer, translate, decompile or disassemble the SOFTWARE.

(b) CUSTOMER may not copy the SOFTWARE except as necessary to use the SOFTWARE on the HARDWARE and to support its customers.

(c) With reference to any copies it makes of the SOFTWARE, CUSTOMER agrees to faithfully reproduce any copyright notice(s) and other proprietary legend(s) appearing thereon and to include the same on the copies. Such copyright notice(s) may appear in several forms, including machine-readable form and CUSTOMER agrees to reproduce such notice in each form in which it appears, to the extent it is physically possible to do so.

(d) CUSTOMER may not disclose, transfer, provide, or otherwise make available in any form, the SOFTWARE or any portion thereof to any third party, except as may be permitted under this Agreement. CUSTOMER shall restrict access to the SOFTWARE to those of its employees requiring access to it for the purpose of carrying out the terms of, or exercising the rights authorized by, this AGREEMENT. CUSTOMER shall implement such procedures as ARTESYN may reasonably request from time to time to improve the security of the SOFTWARE in CUSTOMER’S possession.

(e) CUSTOMER may not combine the SOFTWARE with Open Source Software or with other software in such way that the SOFTWARE becomes subject to an Open Source license or any other license.

3. SOFTWARE REMAINS ARTESYN'S PROPERTY:

(a) The SOFTWARE is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The SOFTWARE is licensed only in accordance with this AGREEMENT, not sold.

(b) Title to SOFTWARE, all copies and derivative works thereof and all rights therein, including all rights in patents, copyrights, and trade secrets applicable thereto, shall remain vested in ARTESYN or its licensors.

(c) If CUSTOMER is compelled to disclose or deliver the SOFTWARE in order to comply with a court order or other legal requirement, CUSTOMER will provide ARTESYN with prompt notice of such requirement so that ARTESYN may seek a protective order or other appropriate remedy.

4. TERMINATION: This AGREEMENT may be terminated by CUSTOMER upon one month's prior written notice. ARTESYN may terminate this AGREEMENT if CUSTOMER is in default of any of the terms and conditions of this AGREEMENT, and termination is effective if CUSTOMER fails to correct such default within thirty (30) days after written notice thereof by ARTESYN. Appropriate provisions shall survive termination of this AGREEMENT.

5. MAINTENANCE: ARTESYN shall not be responsible for maintenance or support of SOFTWARE under this AGREEMENT.

6. LIMITED WARRANTY:

(a) For a period of 90 days from the date of delivery to CUSTOMER, ARTESYN warrants that the SOFTWARE as provided substantially conforms to ARTESYN’s relevant specifications and performs the functions described in the documentation accompanying the SOFTWARE and any relevant updates thereto. ARTESYN’s warranty obligations extend to CUSTOMER only, and not to CUSTOMER’s transferees, customers or users of CUSTOMER’s products.

(b) If the SOFTWARE does not meet the Limited Warranty, ARTESYN’s entire liability and CUSTOMER’s exclusive remedy shall be, at ARTESYN’s option, either (1) repair or replacement of the SOFTWARE; or (2) return of the price paid by CUSTOMER for the SOFTWARE.

(c) Except for this Limited Warranty, the SOFTWARE is provided on an "AS IS" basis and without further warranty of any kind. THlS DISCLAIMER OF WARRANTY EXTENDS TO CUSTOMER, TO CUSTOMER'S TRANSFEREES AND TO CUSTOMER'S CUSTOMERS OR USERS OF PRODUCTS AND IS IN LIEU OF ALL WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE.

(d) ARTESYN does not warrant that the functions contained in the SOFTWARE will meet CUSTOMER'S requirements or that the operation of the SOFTWARE will be uninterrupted or error free.

(e) ARTESYN does not represent or warrant that SOFTWARE furnished hereunder is free of infringement of any third party patents, copyrights, or trade secrets.

7. LIMITATION OF LIABILITY:

(a) ARTESYN'S TOTAL LIABILITY HEREUNDER FOR DAMAGES OF ANY NATURE SHALL NOT EXCEED THE TOTAL PAYMENTS MADE BY CUSTOMER FOR THE SOFTWARE. ARTESYN'S LIMITATION OF LIABILITY IS CUMULATIVE WITH ALL OF CUSTOMER'S PAYMENTS FOR THE SOFTWARE TO ARTESYN BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM OR SUIT WILL NOT ENLARGE OR EXTEND THE LIMIT. CUSTOMER RELEASES ARTESYN FROM ALL OBLIGATIONS, LIABILITIES, CLAIMS OR DEMANDS IN EXCESS OF THE LIMITATION.

(b) IN NO EVENT SHALL EMEROSN BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM CUSTOMER’S USE OF OR INABILITY TO USE THE SOFTWARE.

8. DISCLAIMER FOR HIGH RISK APPLICATIONS: Unless specifically otherwise agreed in writing by ARTESYN, CUSTOMER acknowledges that SOFTWARE and HARDWARE are not intended for and will not be used in life support systems, human implantation, nuclear facilities or systems, or any other high risk applications where product failure could lead to loss of life or catastrophic property damage. CUSTOMER will indemnify and hold ARTESYN harmless from any loss, cost or damage, including attorney fees and costs, resulting from CUSTOMER’s breach of the provisions of this paragraph.

9. EXPORT: CUSTOMER agrees that it will not, and that CUSTOMER will inform its customers that they may not, in any form export, re-export, resell, ship or divert or cause to be exported, re-exported, resold, shipped or diverted directly or indirectly any Product, parts, software, documentation, technical data or a direct product thereof to any country for which the U.S. Government, any agency thereof, or any other Sovereign Government, requires an export license or other governmental approval without first obtaining such license or approval. ARTESYN products with encryption are marketed and distributed in every country in the world, except those restricted under U.S. law. A number of countries have laws on the books that could potentially affect the import or use of encryption. Some countries regulate the import or export of strong encryption software by either a system of waivers, Open General (comprehensive) or individual (specific) licenses. All exporters must observe the specific licensing processes and policies of those countries. ARTESYN is unable to provide legal advice to its customers. When in doubt, customers should consult their own legal counsel.

10. NOTICE: All notices in connection with this AGREEMENT shall be in writing and shall be given by certified mail, return receipt requested at the following address: ARTESYN EMBEDDED TECHNOLOGOES, INC., General Counsel, 2900 S. Diablo Way, Suite B-100, Tempe, Arizona 85282.

11. GOVERNING LAW: This AGREEMENT shall be governed and interpreted by the laws of the State of Arizona in the United States of America.

12. ASSIGNMENT: This AGREEMENT may not be assigned or otherwise transferred without the prior written consent of ARTESYN.

13. COMPLIANCE AND AUDIT RIGHTS: Licensee agrees to notify ARTESYN promptly upon discovery of any failure to comply with one or more Licenses granted under this Agreement, or any failure to comply with any other material term of this Agreement. To confirm Licensee’s compliance with the terms and conditions of this Agreement, Licensee agrees to allow ARTESYN to audit Licensee’s use of the Programs, and to provide ARTESYN access to Licensee’s facilities and Computers, and cooperation from Licensee’s employees and consultants, as reasonably requested by ARTESYN in order to perform such audit, all during normal business hours, and after reasonable prior notice from ARTESYN. If an audit discloses that Licensee has failed to comply with one or more Licenses, and such failure to comply could have in part or in whole been avoided by Licensee having paid additional License fees to expand the scope of the License or Licenses, then Licensee shall promptly pay ARTESYN such Licensing fees (at ARTESYN’s then current rates) and, if such unpaid License fees exceed 5% of the License fees paid to ARTESYN for the applicable Programs during the applicable period during which such underpayment occurred, then Licensee shall, in addition to paying the unpaid License fees, also reimburse ARTESYN the full cost of such audit.

14. ENTIRE AGREEMENT: This AGREEMENT sets forth the entire understanding between the parties with respect to the subject matter herein, and merges and supersedes all prior written agreements, discussions, and understandings, express or implied, concerning such matters, except a Master Software License Agreement, executed by both parties and intended to be the presiding agreement for the license of this SOFTWARE and, notwithstanding any provisions to the contrary, shall take precedence over any conflicting terms which may be contained in CUSTOMER's purchase order or ARTESYN's purchase order acknowledgement form. This AGREEMENT states the entire obligation of ARTESYN in connection with this transaction.

15. SEVERABILITY: The invalidity or unenforceability of any particular provision of this AGREEMENT shall not affect the other provisions, and this AGREEMENT shall be construed as if the invalid or unenforceable provision were omitted.

SCHEDULE A: