XLT - License Agreement 1. License Subject to the terms and conditions set forth in these Terms and Conditions, XCEPTANCE hereby grants to the Licensee, under all Intellectual Property Rights owned by or licensable by XCEPTANCE, including any existing or future related patents owned or licensable by XCEPTANCE, a worldwide, perpetual, non-exclusive, non-transferable (except as specifically set forth herein), non-sublicensable right and license to use Xceptance LoadTest XLT ("Software") in object code form subject to the restrictions as specified under clause 5. The foregoing includes any and all documentation (to be provided in both electronic and hardcopy form) that pertains to the Software. Further, such rights are granted to the Licensee provided that the Licensee will not breach any obligations as set forth in these Terms. 2. Updates XCEPTANCE may offer the Licensee product updates for the Software ("Updates"). As long as XCEPTANCE does not provide the Licensee with specific license terms and conditions for the Updates, these present terms and conditions apply to all Updates provided by XCEPTANCE. "Updates" means (i) new releases of the Software or Documentation and (ii) modifications, revisions or enhancements to the Software. That Updates may contain product features that are different from the features of the Software that the Licensee has received before. With the use of an Update, the Licensee confirms acceptance of the respective changes to the product features. XCEPTANCE will describe all changes that are effective to the product features with regard to the forgoing version of the Software. 3. Ownership As between the Licensee and XCEPTANCE, XCEPTANCE owns all rights, titles and interests in and to the Software. Other than as expressly set forth in these Terms, no license or other rights in or to the Software are granted to the Licensee, and all such licenses and rights are hereby expressly reserved. Licensee is obliged to accept XCEPTANCE's ownership of copyright in the Software and will not remove any copyright notice or other proprietary notices. 4. License Fees The Software is licensed at no costs. XCEPTANCE reserves the right to change the pricing for the licensing of the Software at any time. 5. Restrictions Licensee is not permitted to - Modify the Software; - Share the Software with third parties; - Offer the Software for download, sell or otherwise share with or distribute the Software to third parties; - Incorporate the Software into a product or a software service model, including but not limited to cloud computing model, SaaS or hosting solutions, except for non-commercial purposes, e.g. for the company's internal usage. 6. Confidentiality Each party will maintain in confidence all Confidential Information (as defined below) disclosed by the other party hereto. The receiving party (the "Recipient") agrees that it will not use, disclose or grant use of such Confidential Information except as expressly authorized by the disclosing party ("Discloser") hereunder. Recipient hereby agrees to use at least the same standard of care as it uses to protect its own confidential information of a similar nature, but not less than a reasonable degree of care, to ensure that its employees, agents or consultants do not disclose or make any unauthorized use of such Confidential Information. "Confidential Information" means any confidential or proprietary information, source code, plans or any other information relating to any research project, work in process, future development, scientific, engineering, manufacturing, marketing or business plan or financial or personnel matter relating to Discloser, its present or future products, sales, suppliers, Licensees, employees, investors or business, identified by Discloser as Confidential Information, whether in oral, written, graphic or electronic form. If disclosed in written, graphic or electronic form, the information must be marked as confidential. If disclosed in oral form, such Confidential Information must be reduced to writing and marked as Confidential Information within 30 days following disclosure. The parties agree that (i) the material commercial terms of these Terms and (ii) the Software, except for in uses expressly permitted hereunder, will also be considered Confidential Information of XCEPTANCE. The obligations of confidentiality contained in this section will not apply to the extent that it can be established by Recipient by competent, documented proof that such Confidential Information: (a) was already known to Recipient, other than under an obligation of confidentiality, at the time of disclosure by the Discloser; (b) was generally available to the public or otherwise part of the public domain at the time of its disclosure to Recipient; (c) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of Recipient in breach of these Terms; (d) was disclosed to Recipient, other than under an obligation of confidentiality, by a third party who had no obligation not to disclose such information to others; or (e) was developed independently by Recipient without reference to or use of the Confidential Information of Discloser. Each party will promptly return all Confidential Information to the other party or destroy upon written request from the Discloser. 7. Limited Warranties XCEPTANCE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE OF OTHERWISE, REGARDING THE SOFTWARE, OBJECTS OR SERVICES AND XCEPTANCE SPECIFICALLY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. 8. Limitations of Liability XCEPTANCE shall be liable for damage caused by it or its employees with intent or gross negligence. XCEPTANCE shall neither be liable for indirect damage, nor consequential harm caused by a defect, nor a loss of profits. 9. Marketing XCEPTANCE and Licensee agree that XCEPTANCE may issue a press release within 60 days upon the provision of the Software to the Licensee. Upon Licensee's request, Licensee will have prior approval of press release, but agrees not to unreasonably withhold or delay that approval. Licensee agrees to be a reference for XCEPTANCE to potential XCEPTANCE Licensees upon XCEPTANCE's reasonable request. XCEPTANCE and Licensee agree that they may engage in mutually beneficial marketing activities. XCEPTANCE is permitted to use the name and the trademarks of the Licensee when XCEPTANCE is citing the Licensee as a reference in conjunction with any marketing activities. 10. General The relationship of XCEPTANCE and Licensee governed by these Terms is that of independent contractors. These Terms will be governed by and construed exclusively under the laws of Germany. The place of jurisdiction will be the location of the party that has been sued. Any notice required or permitted to be given under these Terms will be delivered by registered or certified mail or overnight courier, postage prepaid, to the address of the other party set forth on the cover page hereto. Except for payment obligations, nonperformance of either party will be excused to the extent that performance is rendered impossible by any reason where failure to perform is beyond the reasonable control of the non-performing party. Licensee agrees that its rights and obligations under these Terms may not be transferred or assigned directly or indirectly without the prior written consent of XCEPTANCE except that it has already been permitted by these Terms or the transfer is part of a merger with another company or the acquisition of the Licensee by a third party. In case of a permitted transfer of rights, the Licensee ensures that the third party will agree to these terms and conditions. Only these Terms shall apply. Terms and conditions of the party receiving the Software are not valid, even if not explicitly stated by XCEPTANCE. Additions or modifications to these Terms must be made in writing and enter into effect only when signed by both parties. Should one or more provisions of these Terms be or become invalid, then this shall not affect the validity of the remaining provisions. The invalid clause shall then be replaced by the parties by a valid clause that comes as close as possible, in its economic purpose, to the original intent of the invalid clause.