Bitvise Tunnelier End User License Agreement Bitvise Limited, a limited liability company incorporated in Gibraltar with incorporation number 90668, ("Bitvise"), has developed and continues to develop a Windows SSH client program named Tunnelier ("Tunnelier"), to which it owns all right, title, and interest, and is willing to grant you, meaning any individual or entity who will use Tunnelier, ("you"), the license to use Tunnelier, upon the condition that you agree to and accept all of the terms of this License Agreement ("Agreement"). You must read this Agreement carefully. 1. Definitions. - A "Machine" is a single hardware computer unit, or a virtual machine running in a simulated environment inside another Machine. Each node of a cluster counts as an individual Machine. - An "Affiliated Individual" is any individual performing work on behalf of an entity, whether officer, employee, consultant or contractor, whether the relationship is temporary or permanent, part-time or full-time, direct or through another agency or company. - An "Organizational Department" is any reasonably permanent unit of Affiliated Individuals and/or Machines recognized as a unit in an entity. If an entity has Affiliated Individuals or Machines that are not part of an Organizational Department, then this Agreement defines a default Organizational Department as containing those Affiliated Individuals and Machines. - An "Environment" is an Organizational Department or the personal domain of a family or individual. - The "Measure of Use" in an Environment is: the maximum number of individuals that use Tunnelier in that Environment on any given day, or the maximum number of Machines on which Tunnelier is running in that Environment on any given day, whichever of the two is higher. An individual uses Tunnelier if Tunnelier runs in the same operating system session that the individual accesses and operates. 2. License. Bitvise grants you the right to use Tunnelier free of charge in an Environment as long as the Measure of Use in that Environment is 4 or less. Bitvise grants the right to use Tunnelier at a higher Measure of Use ("Expanded License") generally in return for payment according to Bitvise's current pricing schedule. An Expanded License is owned perpetually by the Environment for which it is acquired. An Expanded License is non-transferrable between Environments, but may be transferred along with an Environment. Each Environment has a single highest permitted Measure of Use, which is either the (a) free rights granted by this Agreement, or (b) a higher Measure of Use permitted by an Expanded License acquired under this Agreement. Any subsequent purchase of an Expanded License under this Agreement adds to the highest permitted Measure of Use from previous purchases. The correct highest permitted Measure of Use is not cumulative with the limited free use. For example, installing Tunnelier on ten (10) Machines requires an Expanded License for ten (10) units, not six (6). When an Expanded License is purchased, Bitvise will send you a "License Code". Mere possession of a License Code does not imply an Expanded License. It is not mandatory that an Environment apply a License Code to all its Tunnelier installations, but applying the License Code may be required to enable features not present when Tunnelier is used without a License Code. Any License Code in your possession must be made available only to persons who require it to administer Tunnelier installations on Machines in the Environment, and must be protected securely against access by third parties and unauthorized personnel. 3. Rights. You may use Tunnelier in accordance with this Agreement in any way you see fit to the extent permitted legally where such use is taking place. You may move your Tunnelier installations to different Machines, by removing Tunnelier from the Machine on which it was previously installed and installing it again on the other Machine. You may delete the License Code of an activated Tunnelier installation from the registry location where it is stored. You may create copies of the Tunnelier distributable, as well as any or all of Tunnelier's parts or components, as a backup for your own use in the future. You may not use Tunnelier beyond the scope legally permitted where such use is taking place. You may not use Tunnelier beyond the Measure of Use permitted in your Environment. You may not attempt to circumvent the Tunnelier activation process in any way without advance, specific and written approval from Bitvise. You may not reverse engineer or disassemble or modify Tunnelier or any of its parts or distributables in any way without advance, specific and written approval from Bitvise. You may not provide a copy of Tunnelier or of any of its parts or distributables to a third party without advance, specific and written approval from Bitvise. 4. Ownership. You agree that this Agreement does not convey to you any ownership interest in Tunnelier, and that you are merely granted the license to use it, which is revoked if you breach your obligations arising from this Agreement, in accordance with Section 9 (Term and Termination). 5. Support and Upgrades. If payment in full has been made for an Expanded License, Bitvise will, for one year, provide free access to upgrades and newly released versions, and free email and online-forum support. In subsequent years, Bitvise offers support and upgrades at an annual rate not higher than 20 percent of the current price for the permitted Measure of Use in your Environment. Support includes answering questions arising from use of Tunnelier. 6. Non-Renewal of Support and Upgrades. If you choose not to extend the Support and Upgrades beyond the first year, Bitvise reserves the sole and unlimited discretion to provide any access to Support and Upgrades. 7. Indemnification. In return for the payment in full of fee for an Expanded License, Bitvise will indemnify you and your officers, directors, agents, employees, and direct and indirect end user customers against all claims, actions, judgments, awards, expenses (including reasonable attorney's fees) and damages awarded or agreed by Bitvise to be paid in settlement arising from a claim asserting that an unaltered release of Tunnelier including any modifications or enhancements (collectively the "Indemnified Software") released by Bitvise to the public during the term of this Agreement and used in accordance with the terms of this Agreement infringes a third-party copyright, trade secret or U.S. patent so long as you give Bitvise (a) prompt written notice of such claim or action; (b) the right to control and direct the investigation, preparation, defense, and settlement of the action; and (c) reasonable assistance and information. If a final injunction is obtained against your right to continue using the Indemnified Software or, if in Bitvise's opinion the Indemnified Software is likely to become the subject of a claim, Bitvise shall have the option to (i) obtain the right for you to continue using the Indemnified Software; or (ii) replace or modify the Indemnified Software so that it no longer infringes but functions equivalently and the replacement software does not affect the form, fit or function (including interoperability) of the Indemnified Software. If Bitvise determines that neither of these alternatives is practicable after sustained and reasonable efforts, Bitvise shall remove the infringing portion and refund to you an applicable portion of the monies you paid for the affected software less depreciation for use assuming straight line depreciation over a five-year useful life. 8. Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. However, you may not assign this Agreement in whole or in part, or transfer to a third party the license or any of the rights or obligations granted to you through this Agreement, unless explicitly permitted to do so by Bitvise in this Agreement or separately in writing. Any attempt to assign this Agreement or transfer such license or obligations or rights without Bitvise's explicit written permission will be void and null. Note that Section 2 (License) specifically allows you to transfer your Tunnelier license when you transfer an Environment in whole. 9. Term and Termination. This Agreement remains valid and in force indefinitely as long as you continue to use Tunnelier on any Machine, or continue to have any copies of Tunnelier, any of its parts or distributables stored on any Machine or storage facility in your possession or control. You may terminate this Agreement unilaterally at any time, and with immediate effect, if you have already removed or made irreversibly inoperable all copies of Tunnelier and any of its parts or distributables residing on any Machines or media in your possession or control. This Agreement is terminated automatically, and with immediate effect, if you breach any of your obligations according to this Agreement, and fail to cure the breach within thirty (30) calendar days of discovering the breach. In this case, you must cease to use Tunnelier immediately, and must immediately remove or make irreversibly inoperable all copies of Tunnelier and any of its parts or distributables residing on any Machines or media in your possession or control. 10. Limitation of Responsibility. You agree that you shall not hold Bitvise responsible or liable: - for any damage or harm caused or arising through anyone's use, misuse or attempted use of Tunnelier, including but not limited to any failure of or within Tunnelier, any programming error in, triggered by or related to Tunnelier, or any incorrect or illegal use of Tunnelier. You assume the entire risk of the results and performance of your Tunnelier installations; - for any damage or harm caused by a technical or administrative problem on the recipient's or intermediary's behalf that cannot reasonably be cured by Bitvise, including but not limited to any DNS or mail server issue or a problem with a proxy, a firewall, email filtering or another network device. Furthermore, you agree that Bitvise's total liabilities, if any, arising from this Agreement or Tunnelier shall not exceed the amount actually paid to Bitvise for Tunnelier's use in your Environment. Any use of Tunnelier that requires greater assurance is at your own risk and responsibility. 11. Headings. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement. 12. Governing Law, Jurisdiction and Venue. This Agreement shall be governed by the laws of England. Each party agrees that any suit that it brings in relation to this Agreement shall be brought in a court sitting in England, and that venue is proper in England. Each party agrees not to dispute the personal jurisdiction of a court sitting in England. 13. Severability. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, and that provision is capable of being limited or eliminated without destroying the material economic incentives of the parties embodied by this Agreement then such provision shall be so limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. 14. Survival. The following provisions shall survive termination of this Agreement: Section 1 (Definitions), Section 3 (Rights), Section 4 (Ownership), Section 7 (No Assignment), Section 9 (Term and Termination), Section 10 (Limitation of Responsibility), Section 11 (Headings), Section 12 (Governing Law, Jurisdiction and Venue), Section 13 (Severability), Section 14 (Survival), Section 15 (Waiver), Section 16 (Complete Agreement and Modification). 15. Waiver. No failure to exercise or delay in exercising any right under this Agreement will operate as a waiver of that right, nor will any single or partial exercise of any right or power preclude further exercise of that right or any other right. 16. Complete Agreement and Modification. This Agreement constitutes the complete and only agreement of the parties with respect to its subject matter, to be superseded or modified only by a written document that refers specifically to this Agreement and is signed by both parties.