Commerce One XML Development Kit (XDK) Distribution END USER LICENSE AGREEMENT

PLEASE READ THIS COMMERCE ONE DISTRIBUTION END-USER LICENSE AGREEMENT (called the "COMMERCE ONE-EULA") CAREFULLY. Your downloading, installation, copying, distribution or other use of the software here (the XML Development Kit, or "XDK"), including the "Commerce One XML Parser" (known as the "CXP"), and any other software or any related documentation (together known as the "SOFTWARE") indicates your acceptance of the following terms and conditions of the COMMERCE ONE-EULA. If you do not agree to these terms and conditions, you may not download, install, copy, distribute or otherwise use the SOFTWARE, or any portion of the SOFTWARE, or exercise any of the rights granted hereunder.

NOTICE: The SOFTWARE that is made available through the Commerce One download area is not generally available software. It has not undergone testing and may contain errors. It may not function properly. No support or maintenance is provided with this SOFTWARE.

Ownership

You acknowledge that the SOFTWARE is Commerce One's proprietary and confidential information, and that Commerce One retains all right, title and interest in and to the SOFTWARE, including copyrights, patents, trade secrets and other intellectual property or proprietary rights.

License

The SOFTWARE is provided by Commerce One and is copyrighted and licensed, not sold. Subject to the terms and conditions of this Agreement, Commerce One hereby grants you a world-wide, non-exclusive, non-transferable, royalty-free license, under Commerce One copyrights in the Software, to: 1) download, install, use, reproduce and distribute the Software, subject to the restrictions of this COMMERCE ONE-EULA.

No patent licenses, express, implied, by estoppel or otherwise are granted by Commerce One hereunder. Installation and Use. You may install and use an unlimited number of copies of the SOFTWARE only for your internal use. You may also make copies of the SOFTWARE PRODUCT for backup and archival purposes.

Distribution. You may reproduce and distribute the SOFTWARE in object code form only, provided that (a) you distribute the SOFTWARE only in conjunction with and as a part of, your Application; (b) your Application adds significant and primary functionality to the SOFTWARE; (c) you do not permit further redistribution of the SOFTWARE by your end-user customers; (d) you do not use the Commerce One name, logo, or trademarks to market your Application; (e) you include a valid copyright notice on your Application; and (f) you agree to indemnify, hold harmless, and defend Commerce One from and against any claims or lawsuits, including attorneys' fees that arise or result from the use or distribution of your Application.

Labeling. You shall not remove any copyright or trademark notices, or any other proprietary rights legends from the SOFTWARE. You shall include the following notice in and with the SOFTWARE and any Modifications: "THIS SOFTWARE CONTAINS CONFIDENTIAL AND PROPRIETARY INTELLECTUAL PROPERTY OF COMMERCE ONE".

You understand and agree that although Commerce One grants the licenses to the Software as set forth above, no assurances are provided by Commerce One that the SOFTWARE does not infringe the intellectual property rights of any person or other legal entity. Commerce One expressly disclaims any liability to You for claims brought by any individual or other legal entity based upon infringement of intellectual property rights or otherwise. As a condition precedent to exercising the rights and licenses granted hereunder, You hereby assume sole responsibility to secure any intellectual property rights needed, if any, in order to exercise the rights granted in this COMMERCE ONE-EULA. For example, if third party intellectual property rights are required in order for you to copy or distribute a Software Modification, You are responsible to acquire these rights before copying or distributing the Software Modification.

Warranty Disclaimer

EXCEPT AS SET FORTH HEREIN, COMMERCE ONE PROVIDES THE SOFTWARE AS-IS AND MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE SOFTWARE OR THE DOCUMENTATION, OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO LICENSEE UNDER THIS AGREEMENT, INCLUDING MAINTENANCE AND SUPPORT. COMMERCE ONE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE, CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION AND NONINFRINGEMENT WITH RESPECT TO THE SOFTWARE, DOCUMENTATION AND SAID OTHER MATERIALS AND SERVICES, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING. THE ENTIRE RISK AS TO THE QUALITY OF THE SOFTWARE OR ARISING OUT USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU.

Limitation of Liability

EXCEPT FOR A BREACH OF THE SECTIONS PERTAINING TO CONFIDENTIAL INFORMATION AND INDEMNIFICATION, NEITHER PARTY SHALL BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGESIN NO EVENT WILL COMMERCE ONE BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SOFTWARE HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT, STRICT LIABILITY OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF COMMERCE ONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, COMMERCE ONE WILL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY OR FURNISHING THE SOFTWARE, INCLUDING SOFTWARE THAT CONTAINS DEFECTS ERRORS OR INFRINGING CODE. COMMERCE ONE 'S LIABILITY UNDER THIS AGREEMENT FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, RESTITUTION, WILL NOT, IN ANY EVENT, EXCEED THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE PRODUCT OR U.S.$5.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

Indemnification

Licensee shall indemnify Commerce One and hold Commerce One and its affiliates, and their respective officers, directors, employees, agents and counsel, and the successors and assigns of the foregoing (the "Commerce One Indemnitees"), harmless from and against any and all liabilities, damages, losses, costs or expenses (including reasonable attorneys' and professional fees and other expenses of litigation and/or arbitration) resulting from a claim, suitor proceeding brought by a third party against Commerce One Indemnitees, arising from or occurring as a result of (i) Licensee's use or modification of the SOFTWARE, (ii) the Modifications, or (ii) the Licensee Software as it is related to the SOFTWARE.

Rights to Modifications

We encourage your feedback and suggestions and want to use your feedback to improve the Software. Commerce One wishes to continually improve upon the Software. You agree to promptly provide to Commerce One a copy of SOFTWARE Modifications that You develop by sending a copy of all such SOFTWARE Modifications, in source code form, to: xdk_support@commerceone.com.

You hereby grant to Commerce One a royalty-free, fully paid, irrevocable license under all intellectual property rights (including without limitation patent, copyright and trade secret) to use, copy, distribute, sublicense, display, perform and prepare derivative works based upon any feedback, including SOFTWARE Modifications, materials, fixes, error corrections, enhancements, suggestions and the like that you provide to Commerce One. You represent and warrant that you possess the necessary rights in the SOFTWARE Modifications and other feedback you provide to Commerce One to provide the foregoing license to Commerce One.

Termination

Commerce One may terminate this COMMERCE ONE-EULA, including the licenses granted under this COMMERCE ONE-EULA, (a) immediately upon notice to you if you breach your obligations under this COMMERCE ONE-EULA with respect to Confidential Information or (b) on 20 days notice to you if you have materially breached any terms or conditions of this COMMERCE ONE-EULA and such breach is not cured within 20 days after Commerce One provides notice of such breach. Termination is not an exclusive remedy, and the terminating party reserves any other rights it may have in the event of such termination.