CONTRAT DE LICENCE

Please review the following license agreement and at bottom, indicate whether you accept its terms.

Quest Software, Inc. Software License Agreement

PLEASE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE YOU INDICATE ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE. THIS AGREEMENT DOES NOT SUPERCEDE ANY OTHER WRITTEN AGREEMENT BETWEEN YOU AND QUEST SOFTWARE.

This agreement (the "Agreement") is made between Quest Software, Inc., ("Quest") and you, the customer ("Licensee"). The terms and conditions of this Agreement are intended by the parties as a final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous agreement unless such agreement is signed by both parties. In the absence of such an agreement, this Agreement shall constitute the complete and exclusive statement of the terms and conditions and no extrinsic evidence whatsoever may be introduced in any judicial proceeding which may involve the Agreement. This Agreement may not be modified except by a writing executed by both parties hereto.

SECTION 1. GENERAL PROVISIONS.

The provisions of this Section 1 shall apply to any and all Software, as defined below.

1.1 Software. For the purpose of this Agreement, the licensed computer software program(s) downloaded and/or installed pursuant to this Agreement and the supporting documentation for such will be referred to as the "Software."

1.2 Restrictions. Quest reserves any and all rights, implied or otherwise, which are not expressly granted to Licensee hereunder, and retains all rights, title and interest in and to the Software. Licensee agrees that it has no right whatsoever to modify the Software or any portion thereof in any manner. Licensee shall not reverse engineer, decompile, disassemble, modify, adapt, rent, lease, loan or create derivative works based upon the Software or any part thereof. Licensee may not use the Software as a managed service provider, application service provider, in any commercial time share arrangement, or in any activity intended to directly produce revenue. Licensee may not resell the Software licensed hereunder nor use the software to provide consulting or training services to third parties. Licensee shall not assign the Software to a third party for use in managing Licensee's environment without the prior written consent of Quest.

1.3 Export Law Assurances. Licensee shall not export or re-export, or allow the export or re-export of the Software or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.

1.4 Limitation of Remedies and Damages. IN NO EVENT WILL QUEST, ITS SUBSIDIARIES OR ANY OF THE LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES OF ANY OF THE FOREGOING BE LIABLE TO LICENSEE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND DATA AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF QUEST OR A QUEST REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. QUEST'S CUMULATIVE LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO QUEST FOR THE SOFTWARE THAT CAUSED THE DAMAGES. NO ACTION MAY BE BROUGHT AGAINST QUEST LATER THAN ONE (1) YEAR FROM THE TERMINATION OF THIS AGREEMENT. The provisions of this Section 1.4 allocate risks under this Agreement between Licensee and Quest. Quest's pricing reflects this allocation of risk and limitation of liabilities.

1.5 Nondisclosure. "Confidential Information" means the Agreement, Software, source code, object code, trade secrets, know-how and any proprietary tools, proprietary knowledge or proprietary methodologies disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") and not generally available to the public, which the Receiving Party may gain access to or knowledge of as a result of this Agreement. The Receiving Party shall observe complete confidentiality with respect to the Confidential Information, and shall use commercially reasonable efforts and take all reasonable steps to protect the Confidential Information from any use, reproduction, publication, disclosure, or distribution except as specifically authorized by this Agreement. The Receiving Party shall promptly notify the Disclosing Party of any known unauthorized use or disclosure of the Confidential Information and will cooperate with the Disclosing Party in any litigation brought by the Disclosing Party against third parties to protect its proprietary rights.

1.6 Assignment. Licensee may not assign or transfer its rights or obligations under this Agreement without prior written approval by Quest and any purported assignment or transfer without Quest's consent shall be null and void.

1.7 Injunctive Relief. Licensee hereby expressly agrees that Quest, in addition to any other rights or remedies which Quest may possess, shall be entitled to injunctive and other equitable relief without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.

1.8 Software Supplied to the Government. The Software is a "commercial item" under FAR 2.201. Consistent with FAR section 12.212 and DFARS section 227.7202, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Software or Documentation by the U.S. government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted herein.

1.9 Warranties. THE LIMITED WARRANTIES AS DESCRIBED IN SECTION 2.2 AND SECTION 3.3 OF THIS AGREEMENT ARE THE ONLY WARRANTIES PROVIDED BY QUEST AND ITS LICENSORS, WHO EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE SOFTWARE AND ACCOMPANYING WRITTEN MATERIALS.

1.10 Termination. This Agreement or an individual license granted hereunder may be terminated (a) by mutual agreement of Quest and Licensee, (b) by Licensee, upon thirty (30) days prior written notice to Quest, and (c) by Quest, if Licensee or its Affiliate breaches this Agreement and fails to cure such breach to Quest's reasonable satisfaction within thirty (30) days following receipt of Quest's notice thereof. Upon any termination of this Agreement or a license granted hereunder, Licensee shall immediately cease use of the applicable Software and certify in writing to Quest within thirty (30) days after termination that Licensee has destroyed or returned to Quest such Software and all copies thereof. Termination of this Agreement shall not limit either party from pursuing any remedies available to it, including injunctive relief, or relieve Licensee of its obligation to pay all fees that have accrued or have become payable by Licensee hereunder. The provisions of Sections 1.2, 1.3, 1.4, 1.5, 1.7, 1.9, 1.10, 1.11 and 1.12 shall survive termination of this Agreement for any reason whatsoever.

1.11 Payment and Taxes. Licensee shall make all payments in full within thirty (30) days from the date of the applicable invoice. Any amounts payable by Licensee that remain unpaid after the due date shall be subject to a late charge equal to 1.5% of the invoice amount per month from the due date until such amount is paid, or the maximum rate permitted by law if less. The fees listed may not include taxes; if Quest is required to pay sales, use, property, value-added or other taxes based on the Software or services provided under this Agreement or on Licensee's use of Software or services, then such taxes shall be billed to and paid by Licensee. This section does not apply to taxes based on Quest's income.

1.12 General. This Agreement will be construed under the laws of the State of California, except for that body of law dealing with conflicts of law and the U.N. Convention of Contracts for the Sale of International Goods, which shall not apply. In the event there is a dispute concerning the subject matter of this Agreement, the proper venue shall be the County of Orange, State of California, United States of America. Each party hereby waives opposition to jurisdiction in such court. Service of process can be done in accordance with the governing law of the Agreement. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by the other party, which waiver shall be effective only with respect to the specific obligation described therein. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect.

SECTION 2. TRIAL EVALUATION TERMS AND CONDITIONS.

The provisions of this Section 2 shall apply to Software downloaded for temporary and/or trial use.

2.1 License. Subject to the terms and conditions of this Agreement, the Software is licensed, not sold to Licensee by Quest for an evaluation period of fifteen (15) days from the download date ("Evaluation Period").

(a) Licensee may use the Software for its own internal evaluation and for no other purpose.

(b) Licensee's opportunity for a free evaluation of the Software is limited to one Evaluation Period per release of the Software.

(c) There is no fee for Licensee's use of the Software in accordance with this Agreement during the Evaluation Period, however, Licensee is responsible for any applicable shipping charges or taxes which may be incurred under this Agreement, and any fees which may be associated with usage beyond the scope permitted herein.

(d) Licensee acknowledges that it is downloading the Software with the intent to purchase a perpetual license to use the Software upon completion of a successful evaluation of such. A Quest sales representative may contact Licensee after the download to discuss Licensee's purchase of a perpetual license.

2.2 "AS-IS" Warranty. Quest warrants that it or its licensors retain(s) all intellectual property rights in the Software and any accompanying written materials provided by Quest, including but not limited to copyright, and that it has the legal right to grant Licensee the License granted under this Agreement. Licensee and Quest agree that the SOFTWARE is provided "AS IS" AND UNSUPPORTED, and that QUEST makes no warranty as to the SOFTWARE, express or implied, including but not limited to THE implied warranties of merchantability, TITLE, NON-INFRINGEMENT, and fitness for a particular purpose.

SECTION 3. "FULL" LICENSE TERMS AND CONDITIONS.

The provisions of this Section 3 shall apply to Software licensed with no time limits.

3.1 License. Subject to the terms and conditions of this Agreement, and in consideration for the license fees specified and paid on the Quest ordering document which describes the Software and or services being ordered by Licensee and which incorporates this Agreement by reference (the "Quotation Form"), Quest hereby grants to Licensee, and Licensee accepts from Quest, a perpetual, non-exclusive, non-transferrable and non-sublicensable right to use the Software described on the applicable Quotation Form. This license consists of the right for Licensee to install, use, access, run, or otherwise interact with the Software within the scope of license granted on the applicable Quotation Form, for Licensee's own internal business operations, and in accordance with the related Documentation. Licensee may also make a reasonable number of additional copies of the Software solely for non-productive archival purposes, so long as neither the original and a copy nor two copies of the same license are in use at the same time, and so long as each copy contains all titles, trademarks, and copyrights and restricted rights notices as in the original. Except as explicitly stated in Section 4.6 below and on the applicable Quotation Form, nothing in this Agreement entitles Licensee to receive source code for any part of the Software.

3.2 Maintenance And Other Services. During any Maintenance Period and for the applicable fees, Quest shall provide the Maintenance Services as listed in this Section 3.2. The "Maintenance Period" is a twelve (12) month period. The first Maintenance Period begins on the date of the first invoice for the Software and ends twelve (12) months thereafter. Each Maintenance Period shall automatically renew for another twelve (12) months unless the renewal has been cancelled by either party's giving written notice at least sixty (60) days prior to the first day of the renewal Maintenance Period. Quest will bill and Licensee shall pay for Maintenance Services in advance of renewal. Quest will provide other Services (other than Maintenance Services) subject to availability and under the terms and conditions, including service rates, as indicated on the applicable Quotation Form.

Maintenance Services consist of the following:

- Quest shall make available to Licensee new versions and releases of the Software, including Software corrections, enhancements and upgrades, if and when Quest makes them generally available without charge as part of Maintenance Services for the Software.

- Quest shall respond to unlimited communications from Licensee that report software failures not previously reported to Quest.

- Quest shall respond to a reasonable number of communications from Licensee that request consultation on the operational/technical aspects of the Software.

- Licensee shall have access to Quest's Technical Support Web site: 'SupportLink' at http://www.quest.com/support, and/or the Quest Software Java Products Support Web site at http://java.quest.com/support/, which addresses support for the JClass, JProbe, PerformaSure, DeployDirector, and XRT Software.

- Maintenance Services for the Shareplex Software are available 24X7. For all other Software, Maintenance Services are available during standard support hours as indicated on SupportLink and/or the Quest Java Products Support Web site.

- For all Software, Quest's Maintenance Services shall be available via the Web, email, or telephone. For SQL Navigator, TOAD, and Funnel Web, Quest will respond to inquiries within four (4) hours from receipt of the inquiry. For the JClass, JProbe, PerformaSure, DeployDirector, and XRT Software, Quest will respond to inquiries within twenty-four (24) hours of receipt of the inquiry. For all other Software, Quest will respond to inquiries within two (2) hours from receipt of the inquiry.

- During standard support hours, Quest will respond within thirty (30) minutes to a call from Licensee which reports a critical Software condition which significantly impacts Licensee's production environment or which makes the use or continued use of the Software impossible.

3.3 Limited Warranty. Quest warrants that for a period of thirty (30) days from the date of delivery (i) the media provided by Quest, if any, on which the Software is recorded will be free from material defects in materials and workmanship under normal use, and (ii) the operation of the Software, as provided by Quest, will substantially conform to the Documentation applicable to the Software.

THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF, AND QUEST HEREBY DISCLAIMS, ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

Licensee must report in writing any breach of the foregoing warranties to Quest during the warranty period, and Licensee's exclusive remedy, and Quest's sole obligation, for any such breach of warranty shall be for Quest to replace defective media and to correct or provide a workaround for reproducible errors that cause a breach of the warranty within a reasonable time considering the severity of the error and its effect on Licensee, or, at Quest's option, refund the license fees paid for the nonconforming Software upon return of such Software to Quest and termination of the related license hereunder.

3.4. Usage Verification. At Quest's request, but not more frequently than annually, Licensee shall furnish Quest with a document signed by Licensee's authorized representative verifying Licensee's usage of the Software. Licensee will permit Quest to review Licensee's deployment and use of the Software for compliance with the terms of the license agreement at Quest's expense. Any reviews shall be scheduled at least 15 days in advance, shall be conducted during normal business hours at Licensee's facilities, and shall not unreasonably interfere with Licensee's business activities. If Licensee's use of the Software is found to be greater than contracted for, Licensee will be invoiced for the additional licenses or license upgrades (based on the applicable units of measure, e.g., servers, server tiers or users) and the unpaid license fees shall be payable in accordance with this Agreement. Additionally, if the unpaid fees exceed 5% of the license fees paid for the subject Software, then Licensee shall also pay Quest's reasonable costs of conducting the audit.

SECTION 4. JCLASS SOFTWARE.

The provisions of this Section 4 shall apply to the JClass Software, which consists of either a JClass ServerChart and/or ServerReport (each a "ServerViews Product") or JClass DesktopViews, or any component thereof, (each a "DesktopViews Product).

4.1 JClass Software Restrictions. In addition to the restrictions outlined in Section 4.2 and 4.3, Licensee's right to deploy the class libraries of the JClass Software are subject to the following limitations: (i) Licensee's applications must be targeted at end-users and are not a development tool; (ii) The JClass Software must only be used as an internal component in end-user oriented user-interfaces; (iii) Licensee may not expose, directly or indirectly, any application program interfaces ("API's") that allow programmatic access to the class libraries of the Software to any end-user of the Licensee's SV Applications and/or DV Applications (the "Applications") of Licensee, and Licensee hereby acknowledge that the sublicense, resale, distribution or display of the source code of any Application incorporating the Software shall constitute the exposure of an API that is not permitted by this Agreement; (iv) License does not use Quest's name, logo or trademark to market Licensee's Applications; (v) Licensee includes a valid copyright notice on Licensee's Applications; (vi) Licensee may not distribute any Application in any fashion that would promote, encourage or allow reuse or redistribution of such Application, other than as permitted by this Agreement.

4.2 ServerViews Product Development And Deployment Rights. A grant of license to use the ServerViews Product allows Licensee the development and deployment rights described in (a) and (b) below. Terms applicable to open source software which may be available with the ServerViews Product are outlined in (c) below.

(a) Development. Licensee may install and use the ServerViews Product, only in bytecode form, on the number of CPUs identified on the applicable Quotation Form and on the machines identified in the license confirmation provided to Licensee by Quest (the "License File") for the sole purpose of developing: (i) JavaServer Pages; (ii) Servlets (programs which are an extension of javax.servlet.Servlet); and (iii) Stand-Alone JavaTM Applications (collectively, the "SV Applications").

(b) Deployment. Licensee may copy and deploy the class libraries of the ServerViews Product as an integral part of an SV Application, only in bytecode form, as follows: (i) if Licensee has purchased a CPU License, to the number of central processing units ("cpu's") identified in the Quotation Form- for greater certainty, fees are payable each time the ServerViews Product is deployed to a cpu, whether the cpu is owned, leased or otherwise operated by Licensee, the Licensee's customer, or any other party using Licensee's SV Application; (ii) if Licensee has purchased a Department License, to any number of cpu's, for use solely by the department identified in the Quotation Form and the License File; (iii) if Licensee has purchased a Project License, to any number of cpu's, provided that the class libraries of the ServerViews Product form an integral part of the SV Applications, identified in Licensee's Quotation Form, provided that the SV Applications are used for Licensee's internal purposes only and not resold, sublicensed, or distributed to third-parties; (iv) if Licensee has purchased an OEM/ISV License, to any number of cpu's, provided that the class libraries of the ServerViews Product form an integral part of the SV Applications identified in the Quotation Form, which SV Applications may be resold, sublicensed or distributed by Licensee.

(c) Open Source Software. The ServerViews Product may include two modules of open source software which Licensee may install at Licensee's election: Jakarta's "Tomcat" software (http://jakarta.apache.org/tomcat/) and ETeks' "PJA Toolkit" software (http://www.eteks.com), which are found in the jakarta-tomcat, and pja_2.4 directories respectively. By installing, copying, or otherwise using such software, Licensee agrees to be bound by the terms of the respective license agreements governing such use. If Licensee does not agree to these license terms, Licensee may not install or use such modules. Quest Software provides no warranty for such software, and takes no responsibility for it.

4.3 DesktopViews Products Development and Deployment Rights. A grant of license to use the DesktopViews Product allows Licensee the development and deployment rights described below:

(a) Development. Licensee may install and use the DesktopViews Product, only on the machines identified in the License File, to develop applets and stand-alone Java applications (the "DV Applications"); and

(b) Deployment. Licensee may copy and deploy the class libraries of the DesktopViews Product as an integral part of Licensee's DV Applications, in bytecode form, to additional machines.

4.4 Deployment and Use. The Software has been "deployed" to a cpu when it is loaded into temporary memory (i.e. RAM) or installed into permanent memory (e.g. hard-disk, CD-ROM, or other storage device) of a computer in which the cpu is resident. The Software shall be deemed to be "in use" on a computer when it has been loaded into an integrated development environment or it has been compiled, regardless of whether or not the Software has been compiled directly or compiled indirectly as a result of being incorporated into other software that is compiled directly.

4.5 Source Code. If Licensee has licensed the Software in source code form (the "Source Code"), this Agreement grants Licensee the license to use one copy of the Source Code, subject to the restrictions set out in the Quotation Form, to derive binary code therefrom (the "Binary Code"), on a single computer, after registration of that computer's cpu identification with Quest. Licensee must keep the copy of the Source Code confidential and may not copy or distribute the Source Code or the Binary Code unless Licensee purchases additional licenses for each machine on which the Source Code or Binary Code is used. The Source Code is very confidential, and proprietary to Quest, and may only be used or revealed in Licensee's organization to those persons who have a need to know, and are under a written obligation of confidentiality.

4.6 Transfer Policies. Licensee will only be permitted to transfer the Software from the machine identified at the time of ordering the Software to another machine no more than once per year, and provided that Licensee follows the transfer procedure set forth on Quest's Java Products web site, and provided that Licensee has ordered a Maintenance Subscription from Quest for the period during which such change is made and no invoice due to Quest is in arrears. Under no circumstances may Licensee permit the Software to be installed, at any one time, on a number of machines in excess of the number identified in the ordering document. Licensee must also confirm that the license file installed on the original machine has been erased and will no longer be used once Licensee transfers the Software to another machine.

4.7 Copyright Limitations. All title and copyrights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, text, and "applets" incorporated into the Software), the accompanying printed materials, and any copies of the Software are owned by Quest or its suppliers. The Software may contain materials owned by Sun Microsystems, Inc. If so, all title in and copyright to the JavaTM Technology are owned or licensed by Sun Microsystems, Inc., all rights reserved.

4.8 Special Disclaimer for High-Risk Activities. The Software is not designed or intended for use in high-risk activities including, without restriction, on-line control of aircraft, air traffic, aircraft navigation or aircraft communications; or in the design, construction, operation or maintenance of any nuclear facility. Quest and its suppliers specifically disclaim any express or implied warranty of fitness for such purposes or any other purposes.

JClass Click Through SLA

05-2003