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ZEND LICENSE AGREEMENT
Zend Optimizer

ZEND TECHNOLOGIES LTD. ("ZEND") SOFTWARE LICENSE AGREEMENT ("AGREEMENT")

IMPORTANT: READ THESE TERMS CAREFULLY BEFORE INSTALLING THE SOFTWARE KNOWN AS THE "ZEND OPTIMIZER," AS INSTALLED BY THIS INSTALLATION PROCESS, IN MACHINE-EXECUTABLE FORM ONLY, AND ANY RELATED DOCUMENTATION (COLLECTIVELY, THE "SOFTWARE") BY INSTALLING, OR OTHERWISE USING THIS SOFTWARE, YOU (THE "LICENSEE") ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT AN AUTHORIZED USER OF THE SOFTWARE AND IT IS YOUR RESPONSIBILITY TO EXIT THIS INSTALLATION PROGRAM WITHOUT INSTALLING THE SOFTWARE, OR TO DELETE THE SOFTWARE FROM YOUR COMPUTER.

1. License. Subject to the terms and conditions of this Agreement, including, without limitation, Section 2 hereof, Zend hereby grants to Licensee, during the Term (as defined below), a limited, a non-exclusive license (the "License") to: (i) install and operate the Software on a computer or a computer network owned or operated by Licensee; (ii) make copies of the Software; and (iii) sublicense and distribute a limited, non-exclusive sublicense to install, use and sublicense such copies of the Software, provided that any sub-license granted hereunder shall be subject to the limitations and restrictions set forth in this Agreement.

2. Restrictions. Except as otherwise expressly set forth herein, Licensee or any of its sub-licensees shall not: (a) translate or decompile, or create or attempt to create, by reverse engineering or otherwise, the source code form from the object code supplied hereunder; (b) modify, adapt, translate or create a derivative work from the Software; (c) remove any proprietary notices, labels, or marks on the Software.

3. Termination. This Agreement and the License hereunder shall be in effect from and after the date Licensee installs the Software on a computer in accordance with the terms and conditions hereof and shall continue perpetually unless terminated in accordance with this Section 3. This Agreement shall be automatically terminated upon any breach by Licensee of any term or condition of this Agreement. Such period shall be referred to herein as the "Term". Within five (5) business days of any such termination, Licensee shall return the Software to Zend (or, at Zend's sole discretion and only at Zend's direction, destroy the Software and certify in writing to Zend that said Software has been destroyed). Upon return of the Software or upon receipt of notice of the destruction of the Software, as appropriate, this Agreement shall terminate and Zend shall have no further obligations to Licensee. Articles 2, 4, 5, 6, 7, 8 and 10 hereof shall survive the expiration or termination of this Agreement for any reason.

4. Intellectual Property Rights. Licensee hereby acknowledges and agrees that Zend or its licensors own and retain all rights, title, and interest in and to the Software, regardless of the form or media in or on which the original or other copies may subsequently exist including, without limitation, all copyrights, trademarks, patents and trade secret rights inherent therein or appurtenant thereto. This Agreement shall not constitute a sale of the Software and no title or proprietary rights to the Software are transferred to the Licensee hereby. Licensee acknowledges that the Software is a unique, confidential and valuable asset and trade secret of Zend or its licensors, and Zend or its licensors shall have the right to obtain all equitable and legal redress which may be available to it for the breach or threatened breach of this Agreement including, without limitation, injunctive relief.

5. Warranty; Disclaimer. THE SOFTWARE IS BEING LICENSED HEREUNDER WITH NO WARRANTY WHATSOEVER. LICENSEE ACKNOWLEDGES THAT ITS USE OF THE SOFTWARE IS AT ITS OWN RISK. THE SOFTWARE IS PROVIDED SOLELY ON AN "AS-IS" BASIS. ZEND AND ITS LICENSORS MAKE, AND LICENSEE RECEIVES, NO WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE. ZEND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NONINFRINGEMENT. ZEND DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE SHALL BE OPERABLE, UNINTERRUPTED OR ERROR FREE OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT.

6. No Liability. IN NO EVENT SHALL ZEND OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR LOST PROFITS (EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, INCLUDING WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF DATA, OR ANY OTHER DAMAGES, HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND IN SUCH CASE AND ONLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW, THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO LICENSEE. WITHOUT LIMITATION OF THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL LICENSOR'S TOTAL AGGREGATE LIABILITY TO LICENSEE AND ANY OF ITS SUB-LICENSEES (REGARDLESS OF THE LENGTH OF THE TRAIL OF SUBLICENSES) FOR ANY AND ALL CLAIMS ARISING HEREUNDER, INCLUDING WITHOUT LIMITATION ARISING OUT OF YOUR USE OF THE SOFTWARE, EXCEED THE SUM OF $100.

7. Indemnity. Licensee will, at its own expense, defend any action brought by a third party against Zend to the extent that such action is based on a claim arising from or relating to: (a) Licensee's use of the Software, (ii) any distribution of the Software by Licensee or by any of or by any sub-licensee, regardless of privity of contract and regardless of the length of the trail of sublicenses, (iii) any claims based upon warranties, guarantees or representations made by Licensee or any of its employees, agents or sub-licensees; or (iv) any use of the Software by any of the foregoing sub-licensees. Zend shall have the exclusive right to control such defense. In no event shall Licensee settle any such claim, lawsuit or proceeding without Zend's prior written approval.

8. U.s. Government restricted rights. The Software provided hereunder is a "commercial item," as that term is defined in 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, the Software made available to the United States of America, its agencies and/or instrumentalities, is provided with only those rights set forth in this Agreement. Use, duplication or disclosure of the Software by the government is subject to the restrictions as set forth in subparagraph (c)(1) and (2) of the Commercial Computer Software-Restricted Rights clause at 48 C.F.R. 52.227-19, as amended, or any successor regulations thereto.

9. Export and Import Restrictions. Licensee shall be solely responsible for obtaining any required regulatory approvals for exportation, importation and/or distribution of the Software.

10. Miscellaneous. This Agreement is made in and shall be governed by the laws of the State of Israel, excluding choice of law principles. Venue for all proceedings shall be Tel Aviv, Israel. Notwithstanding the foregoing, Zend shall have the right to apply to any court of competent jurisdiction for injunctive or other relief. The United Nations Convention for the International Sale of Goods shall not apply. There is no relationship of agency, partnership, joint venture, employment or franchise between the parties.  Licensee or its sub-licensees do not have the authority to bind Zend or to incur any obligation its behalf or to represent itself as Zend's agent or in any way that might result in confusion as to the fact that the parties are separate and distinct entities. The section headings herein are provided for convenience only and have no substantive effect on the construction of this Agreement. If any provision of this Agreement is held to be unenforceable, this Agreement shall be construed without such provision.  The failure by Zend to exercise any right hereunder shall not operate as a waiver of Zend's right to exercise such right or any other right in the future.  This Agreement may be amended only by a written document executed by a duly authorized representative of each of the parties. This Agreement constitutes the complete and exclusive statement of the terms and agreement between Zend and Licensee and supersedes all prior representations, understandings and communications, oral or written, between the parties with respect thereto, including memoranda of agreement. In the event legal action is taken by Zend or its licensors to enforce any provision of this Agreement, all costs and expenses, including reasonable attorneys' fees and expenses, incurred by Zend or its licensors shall be paid by Licensee, in addition to other damages to which Zend or its licensors may be lawfully entitled. Licensee agrees that it will not refer to the Software or to the existence of this Agreement nor will it use Zend's name in any press releases, advertising, marketing or other materials without Zend's advanced written consent in each instance. Any notice provided by Licensee to Zend pursuant to this Agreement shall be in writing to Zend Technologies Ltd. at P.O. Box 3619, Ramat Gan 52136, Israel, and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, three (3) days after deposit in the U.S. mails, postage prepaid, certified mail, return receipt requested; or (iii) if by next day delivery service, upon such delivery. Any notice provided by Zend to Licensee pursuant to this Agreement shall be sent to the e-mail or mailing address provided by Licensee upon registering on Zend's Web site, and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, three (3) days after deposit in the U.S. mails, postage prepaid, certified mail, return receipt requested; or (iii) if by next day delivery service, upon such delivery. Either party may change its address by giving written notice to the other party.

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