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SENCHA SOFTWARE OEM LICENSE AGREEMENT

THIS AGREEMENT is entered into as of September 26, 2012 (the "Effective Date"), by and between Sencha Inc., a Delaware corporation, with offices located at 1700 Seaport Blvd, Suite 120 Redwood City CA 94063 (“Licensor”), and BMC Software, Inc. (successor to Numara Software USA), with an address of 2101 City West Blvd, Houston, TX 77042 (“OEM”).

RECITALS

WHEREAS, Licensor and OEM entered into that certain Sencha Software License Agreement (the “Original Agreement”) dated as of September 26, 2011, by and between Licensor and OEM.

WHEREAS, Licensor and OEM have entered into various other commercial license agreements relating to Licensed Software (the “Commercial License Agreements”)

WHEREAS, OEM and Licensor wish to replace the Original Agreement and the Commercial License Agreements in their entirety with this Agreement.

NOW, THEREFORE, in consideration of the promises and of the obligations herein made and undertaken, the parties agree as follows:

1. DEFINITIONS.  For the purposes of this Agreement, the definitions set forth in this section shall apply to the respective terms:
1.1. "Agreement" means this Agreement including any exhibits attached hereto. "Documentation" means the related materials customarily supplied or made available by Licensor to end users of the Licensed Software, or used for marketing the Licensed Software, including without limitation all printed and on-line documentation, on-line help, training materials, and collateral marketing materials.
1.2. “Designated User(s)” shall mean a single distinct employee acting within the scope of their employment with OEM or OEM’s consultant or contractor acting within the scope of the services they provide for OEM or on OEM’s behalf.
1.3. "End User" means an end user of OEM Software who acquires a license to such product for use rather than distribution or resale, including, without limitation, use for the End User's productive business purposes, and for evaluation, beta, test, demonstration and internal development purposes.
1.4. "OEM Software" means the OEM software described in Exhibit A.
1.5. "OEM Product" means the Licensed Software as modified by the Modifications.  
1.6. “Licensed Software” means the Licensed Software describe in Exhibit A.
1.7. "Modification" means an interface or a modification, revision, enhancement or other derivative work of the Licensed Software created by OEM as necessary to enable the Licensed Software to operate with other OEM products or services, and to extend the Licensed Software as necessary to make the OEM Product meet the needs of OEM’s customers.
1.8. "Modified Documentation" means the versions of the Documentation revised by OEM for use with the Modifications and/or OEM Product.
1.9. "Update" means a generally available release of the Licensed Software that introduces a limited amount of new optional features and functionality, designated by means of a change in the digit to the right of the decimal point (e.g. Licensed Software 3.0>>Licensed Software 3.1).
1.10. "Upgrade" means a generally available release of the Licensed Software that contains functional enhancements or extensions, designated by means of a change in the digit to the left of the first decimal point (e.g. Licensed Software 3.0 >> Licensed Software 4.0).
2. GRANT OF LICENSES TO OEM
2.1.   License Grant to Licensed Software.  Subject to the terms and conditions set forth in this Agreement, Licensor hereby grants to OEM, a non-exclusive, non-transferable, non-sublicensable, worldwide license, to reproduce and distribute solely to End Users unlimited copies of the Licensed Software, as modified by OEM, solely as inseparably integrated with the OEM Software and where the Licensed Software is only capable of being used with the OEM Software (“OEM License”).    OEM shall not provide license rights, consulting, training or other services in connection with the standalone functionality of the Licensed Software, nor shall OEM develop or use or authorize third parties to develop or use the Licensed Software on a standalone basis.  OEM shall be under no obligation to use or distribute the Licensed Software in any way.
2.2.   License Grant to Documentation.  Subject to the terms and conditions set forth in this Agreement, Licensor hereby grants to OEM, non-exclusive, non-transferable, non-sublicensable, worldwide license, to (a) to modify and create derivative works of the Documentation for the OEM Software (b) to use, reproduce, modify, distribute to End Users, publicly display and publicly perform the unlimited copies of the Documentation in connection with the OEM Software.
2.3.   Bundling Requirement.  OEM shall not (nor shall it allow any third party to) distribute the Licensed Software or OEM Product in stand-alone form.  
2.4.   License Limitations. Copies of the Licensed Software are licensed for distribution only and not sold. OEM and its customers may not: (a) modify the Licensed Software or permit or encourage any third party to do so, except as expressly provided herein; (b) rent, lease, or sell or otherwise provide temporary access to the Licensed Software to any third party, except as expressly provided herein; (c) use the Licensed Software in any manner to assist or take part in the development, marketing, or sale of a product potentially competitive with the Licensed Software; (c) use the Licensed Software, or allow the transfer, transmission, export, or re-export of the Software or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency; (e) modify, remove, or obstruct any copyright or other proprietary rights statements or notices contained within the Software; (f) distribute the Licensed Software except pursuant to an enforceable written agreement for Licensor’s benefit that includes all the limitations and restrictions of this Agreement and is as protective of Licensor and Licensed Software as is this Agreement; or (g) allow, assist or permit others to do any of the foregoing.
2.5.  Internal License Grant. Licensor herby grants to OEM, a non-exclusive, non-transferable, non-sublicensable, license for up to forty-five (45) Designated Users to use the Licensed Software for design and development purposes (“Internal License”).
2.6. Support Services.  Licensor shall provide to OEM Premium Support services (“Premium Support”) for the Licensed Software pursuant to the terms set forth at: http://www.sencha.com/legal/support-and-services-agreement.  Licensor reserves the right to modify Premium Support terms at any time for any reason.  Notice of any change will be made available via Licensor’s website.  If the parties agree that such modifications materially degrade the ability of OEM to use the Premium Support, OEM may terminate Premium Support within thirty (30) days after such change and receive a refund of any unused fee for Premium Support. hat portion of the Term during which Premium Support is provided by Licensor to OEM hereunder is hereinafter referred to as the “Support Period”.  
3. FEES.
3.1.   Fees. During the Term of this Agreement, OEM shall to pay Licensor the fees ("License Fee") in compliance with the fees set forth in Exhibit A.
3.2.   Payments.  All payments to Licensor are to be made in U.S. Dollars to Licensor at the address listed above, and pursuant to the terms set forth on Exhibit A.  
3.3.   Legacy Product License Fee.  Notwithstanding anything to the contrary. in the event that OEM in its sole discretion chooses to continue to distribute the then-current version or prior versions of the OEM Software which includes Licensed Software after termination or expiration of this Agreement as permitted in herein, the annual License Fee shall be reduced according to the following schedule (“Legacy Product License Fee”) [Year(s) after Termination of Agreement/Percent reduction of the last annual License Fee paid by OEM to Licensor during the Term of this Agreement]: (i) year 0-2  / 0%, (ii) year 3 -4 / 25%, and (iii) year > 5 / 50%.
3.4.   Taxes. All taxes based on income that are imposed, or may be imposed during the term of this Agreement, by any federal, state or local government entities for payments received under this Agreement will be borne by the recipient of payments.  All other taxes or charges of any kind (including but not limited to, customs duties, government permit, tariffs, excise, gross receipts, sales and use and value added tax) except income tax or corporation tax (or similar taxes) will be borne by the payer.
4. WARRANTY
4.1.   General Warranty.  Each party represents and warrants to the other party that (a) it has all necessary right, power and authority to enter into this Agreement, and (b) it has the right to provide and license its technology under this Agreement.  Licensor represents and warrants that the Licensed Software, to its knowledge, do not contain any matter that does or will infringe any copyright, trade secret, trademark, patent, or other intellectual property right of any third party.
4.2.   Limited Software Warranty. For a period of ninety (90) days from the date that Software is shipped to the End User,  Licensor warrants that (i) the Software will materially conform to  Licensor's then-current documentation and specifications for such Software; (ii)    Licensor has all the necessary rights and licenses to allow OEM to distribute and resell the Licensed Software under the licenses granted herein; provided that in the case of breach OEM's sole remedy and  Licensor's sole liability for breach of the warranties in clause (ii) immediately above shall be as provided in Section 6 below; and provided further that, in the case of breach of the warranty in clause (i), Licensor shall use commercially reasonable efforts to, within ninety (90) days (unless a fewer number of days is required and practical, on a mutually agreeable case by case basis) of OEM's request, supply Software that materially conforms to  Licensor's then-current documentation and specifications for such Software.
4.3.   Third Party Code Warranty.  None of the Licensed Software or any portion of the Licensed Software contain, or have been or shall be developed using, any software, library, utility, tool, or other computer or program code (each a “Supplement”) that requires as a condition of the Supplement’s use, reproduction, modification or distribution that other software or computer code incorporating, using, linked with, created with, developed with, distributed with, based on, derived from or accessing (whether by calls, execution branching, interprocess control, or other technique of any kind whatsoever) the Supplement:  (i) be disclosed or distributed in source code form; (ii) be licensed for the purpose of making derivative works; (iii) be licensed under terms that allow reverse engineering, reverse assembly or disassembly of any kind; or (iv) be redistributable at no charge.  Supplements  include but are not limited to software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following:  (A) GNU’s General Public Licenser (GPL) or Lesser/Library GPL (LGPL), (B) The Artistic License (e.g., PERL), (C) the Mozilla Public License, (D) the Netscape Public License, (E) the Sun Community Source License (SCSL), and (F) the Sun Industry Standards License (SISL).
5. DISCLAIMERS
5.1.   DISCLAIMER OF WARRANTY.  EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4 (Warranty), EACH PARTY DISCLAIMS ALL WARRANTIES (EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY) WITH REGARD TO ANY SERVICES OR TECHNOLOGIES PROVIDED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS. LICENSOR SHALL NOT BE LIABLE UNDER ANY WARRANTY IF THE ALLEGED DEFECT IN THE PRODUCT DOES NOT EXIST OR WAS CAUSED BY OEM'S OR ANY THIRD PERSON'S (FOR WHOM LICENSOR IS NOT RESPONSIBLE AS PROVIDED HEREIN) MISUSE, NEGLECT, IMPROPER INSTALLATION OR TESTING, UNAUTHORIZED ATTEMPTS TO REPAIR, OR ANY OTHER CAUSE BEYOND THE RANGE OF THE INTENDED USE, OR BY ACCIDENT, FIRE, LIGHTNING OR OTHER HAZARD. LICENSOR NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE, INSTALLATION, MAINTENANCE OR USE OR THE RESULTS OF THE USE OF THE LICENSED SOFTWARE, DOCUMENTATION NOR ANY OTHER ITEMS OR MATERIALS PROVIDED HEREUNDER IN TERMS OF CORRECTNESS, COMPLETENESS, ACCURACY, RELIABILITY, OR OTHERWISE, AND LICENSOR MAKES NO WARRANTY WHATSOEVER OF ANY NONSTANDARD PRODUCTS SUPPLIED BY IT HEREUNDER.
5.2.   DISCLAIMER OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY PERFORMANCE OF THIS AGREEMENT, OR IN FURTHERANCE OF THE PROVISIONS AND OBJECTIVES OF THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO (1) LOST PROFITS, (2) LOSS OF USE OR INTERRUPTION OF BUSINESS DAMAGES (3) LOST OR INACCURATE DATA, (4) COST OF COVER, (5) PROCUREMENT OF SUBSTITUTE PRODUCTS, TECHNOLOGY OR SERVICES OR (6) OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SALE, INSTALLATION, MAINTENANCE, USE, PERFORMANCE, FAILURE OR INTERRUPTION OF A PARTY’S PRODUCTS.)  ALL OF THE ABOVE LISTED LIMITATIONS APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS DISCLAIMER OF LIABILITY FOR DAMAGES WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREUNDER SHALL FAIL OF ITS ESSENTIAL PURPOSE. LICENSOR’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS LICENSE AGREEMENT SHALL BE LIMITED TO AMOUNTS PAID BY OEM TO LICENSOR HERUNDER.  
6.  INDEMNIFICATION
6.1.   Indemnification by Licensor.  Licensor shall indemnify OEM, or at its option, defend OEM against any third party claim, suit or proceeding brought against OEM based on a claim that the Licensed Software or Documentation infringes upon any patent, copyright, or trade secret of any third party, and will pay any costs, damages, fines, settlement and reasonable attorney’s fees (the “Losses”) attributable to any such claim, suit, or proceeding, provided that OEM gives Licensor prompt written notice of, reasonable assistance with respect to, and sole control of the defense of, such claims; and provided further that OEM not enter into any settlement or compromise any such claim without Licensor’s prior written approval.  Notwithstanding the foregoing, Licensor shall have no liability to OEM or to any customer of OEM for Losses attributable to (i) any combination of the Licensed Software with any other software or equipment not provided by Licensor, including without limitation, any Modification or the OEM Product; (ii) the modification of the Licensed Software, or any part thereof, by anyone other than Licensor; or (iii) unauthorized use of the Licensed Software; or (iv) use of the Licensed Software not contemplated by the Documentation. OEM will take reasonable actions to prevent or mitigate losses, damages, costs and expenses.   Should the use of OEM Products or Licensed Software be enjoined, or in the event Licensor wishes to minimize its potential liability hereunder, Licensor may, at its option, either: (i) substitute a functionally equivalent non-infringing unit of the Licensed Software; (ii) modify the infringing item so that it no longer infringes; (iii) obtain for OEM, at Licensor expense, the right to continue use of such item; or (iv) in lieu of the foregoing, Licensor may take back such infringing item or items and refund to OEM the purchase price paid therefor, less amortized depreciation on a five (5) year straight line basis. The foregoing in this Section shall be Licensor sole liability and OEM’s sole remedy for infringement or misappropriation of third party intellectual property or proprietary rights, which shall in no event exceed amounts paid hereunder.
6.2.   Indemnification by OEM.  OEM shall indemnify Licensor, or at its option, defend Licensor against any claim, suit or proceeding brought against Licensor on the issue that an OEM Product or any Modification infringes any patent, copyright, or trade secret of any third party, and will pay any Losses attributable to any such claim, suit, or proceeding.  Notwithstanding the foregoing, OEM shall not be liable to Licensor for Losses to the extent that the Losses are attributable to infringement by the Licensed Software without such Modification.  Licensor will assist OEM in taking reasonable actions to prevent or mitigate losses, damages, costs and expenses, at OEM’s expense.
7. OWNERSHIP AND ATTRIBUTION.
7.1.  Ownership.
a) Licensed Software.  It is expressly understood by OEM and agreed that, as between Licensor and OEM, Licensor is the sole and exclusive owner of all right, title and interest in the Licensed Software; provided, however, OEM shall be the sole and exclusive owner of any derivative works of the Licensed Software created by OEM hereunder.
b) OEM Software.  It is expressly understood by Licensor and agreed that, as between Licensor and OEM, OEM is the sole and exclusive owner of all right, title and interest in the OEM Software.
7.2.   Reservation.  Each party hereby reserves all rights not expressly granted under this Agreement.
7.3.   Attribution.  Subject to the restrictions on trademark usage below, OEM may use the brand name of the Licensor software from which the Licensed Software are derived in order to refer to usage of the OEM Product, as may be required or permitted under the terms of this Agreement.
7.4.   Non-Disparagement. OEM agrees that, for one (1) year following its last use of the Licensed Software, it shall not, in any communications with the press or other media or any customer, client or supplier of company, or any of company affiliates, criticize, ridicule or make any statement which disparages or is derogatory of Licensor, Licensor's products, Licensor's affiliates, or any of their respective directors or senior officers.
8. TRADEMARKS
8.1.   Licensor Trademark License.  During the term of this Agreement, Licensor hereby grants to OEM a non-exclusive, non-transferable, limited license to use Licensor Trademarks solely as permitted for use in those activities related to the marketing and promotion of the Combined Works.  OEM acknowledges that OEM's use of Licensor Trademarks will not create in OEM, nor will OEM represent it has, any right, title or interest in or to the Licensor Trademarks.  OEM acknowledges Licensor's (or the trademark owners') exclusive right to use Licensor Trademarks and agrees not to do anything to contest or impair such rights.  OEM also agrees that all use of Licensor Trademarks by OEM shall inure to the benefit of Licensor. Licensor reserves the right to revoke the foregoing license at any time should OEM fail to adhere to the requirements of this section.  In the event of any such revocation, OEM must cease to distribute any non-compliant version of the OEM Product within 30 days of the date of revocation.  
8.2.   Unauthorized Use.  Each party agrees to notify the other party of any unauthorized use of such other party’s Trademarks promptly as it comes to the Trademark user’s attention.  Each applicable Trademark owner shall have the sole right and discretion to bring infringement or unfair competition proceedings involving its respective Trademarks.
9. TERM AND TERMINATION
9.1.   Term.  Unless otherwise terminated in accordance with the terms and conditions of this Agreement, the term of this Agreement shall commence upon the Effective Date and continue in compliance with the Term set forth in Exhibit A of this Agreement
9.2.   Termination for Cause.  Without prejudice to any other rights, if either party materially defaults in the performance of this Agreement, then the non-breaching party may give written notice to the defaulting party of such material default. If the noticed default is not cured within sixty (60) calendar days (or ten (10) days in the case of non-payment) following receipt of default notice by the defaulting party, then the non-breaching party shall have the immediate right to terminate this Agreement.
9.3.   Termination for Assignment.  If an assignment is attempted without consent when consent is required, then the non-breaching party may, upon written notice to the breaching party, terminate this Agreement immediately for cause and any provision hereof with respect to cure will not apply to termination.
9.4.   Effect of Termination.  Upon termination of this Agreement, all rights granted under this Agreement immediately terminate except as follows:
a) Payment of the applicable fees described in Section 3 of this Agreement.
b) License rights with respect to any Licensed Software that has been distributed (as integrated with OEM Software) to OEM's distributors, resellers, and/or End Users shall not terminate but shall continue in perpetuity.
c) Notwithstanding anything to the contrary in the Agreement, in the event of termination due to an uncured breach by Licensor and subject to payment of the License Fee, the licenses granted in Section 2 hereof shall survive, subject to all the restrictions set forth herein, any termination of this Agreement until the expiration of the period for which such License Fee was paid.
d) Any fees already paid by OEM to Licensor are non-refundable.
9.5.   Survival. In addition to any provisions that survive under Section 9.4 above, Sections 3.3, 3.4, 5, 6, 7, 10 and 11 shall survive termination of this Agreement.
10. CONFIDENTIALITY.
10.1.   Confidential Information.  The term “Confidential Information” means any information disclosed by one party to the other pursuant to this Agreement that is in written, graphic, machine-readable or other tangible form and is marked “Confidential”, “Proprietary” or in some other manner to indicate its confidential nature, including, without limitation, computer programs, algorithms, names and expertise of employees and consultants, know-how, formulae, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information).  Confidential Information may also include oral information disclosed by one party to the other pursuant to this Agreement, provided that such information is designated as confidential at the time of disclosure and is reduced to writing by the disclosing party within a reasonable time (not to exceed 30 days) after its oral disclosure, and such writing is marked in a manner to indicate its confidential nature and delivered to the receiving party.  
10.2.   Confidentiality.  Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement herein, and shall not disclose such Confidential Information to any third party.  Without limiting the foregoing, each of the parties shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, to prevent the disclosure of Confidential Information of the other party.  Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party's Confidential Information.
10.3.   Exceptions.  Confidential Information excludes information that: (i) was in the public domain at the time it was disclosed or has become in the public domain through no fault of the receiving party; (ii) was rightfully known to the receiving party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the disclosing party; (iv) was independently developed by the receiving party without any use of the Confidential Information; (v) becomes known to the receiving party, without restriction, from a source other than the disclosing party, without breach of any Agreement,; or (vi) is disclosed generally to third parties by the disclosing party without restrictions similar to those contained in this Agreement.  The receiving party may disclose the other party's Confidential Information to the extent such disclosure is required by order or requirement of a court, administrative agency, or other governmental body, but only if the receiving party provides prompt notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.
10.4.   Confidentiality of Agreement. The specific terms and conditions of this Agreement will be treated as Confidential Information; provided, however, that each party may disclose the terms and conditions of this Agreement: (i) as required by any court or other governmental body; (ii) as otherwise required by law; (iii) to legal counsel of the parties; (iv) in confidence, to accountants, banks, and financing sources and their advisors; (v) in connection with the enforcement of this Agreement or rights under this Agreement; or (vi) in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction.
11. MISCELLANEOUS.
11.1.   Notices.  All notices permitted or required under this Agreement shall be in writing and shall be delivered in person, by facsimile or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, upon receipt of electronic transmission or five (5) calendar days after deposit in the mail.
11.2.   Force Majeure.  Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such party.
11.3.   Assignment.
a) This Agreement may not be assigned by either party without the prior written approval of the other party. Notwithstanding the above, a party may assign to a successor party in interest without obtaining such consent provided that, all of the following conditions must be met: (i) such assignment is in connection with a merger or corporate reorganization, by operation of law, or in connection with a sale of all or substantially all of the assets to which this Agreement relates; (ii) the assigning party provides written notice to the non-assigning party prior to the effective date of such assignment; and (iii) there is a written agreement, wherein the party to which the rights are assigned accepts all the duties and obligations of the assignor hereunder.  
b) Any attempted assignment not authorized hereunder shall be null and void.
11.4.   Waiver.  The waiver by either party of a breach of any provisions contained herein shall be in writing and shall in no way be construed as a waiver of any succeeding breach of such provision or the waiver of the provision itself.
11.5.   Severability.  In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objective of such provision within the limits of applicable law or applicable court decisions.
11.6.   Controlling Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of California, without reference to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded from application to this Agreement.
11.7.   No Agency.  Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.
11.8.   Headings.  The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
11.9.   Forum.  All disputes arising out of this Agreement are subject to the exclusive jurisdiction of the courts located in Santa Clara County, California and the parties hereby submit to the personal jurisdiction and venue of these courts.
11.10.   Export Controls.  OEM acknowledges that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Licensed Software.  OEM agrees that it will not export or re-export the Licensed Software, or any portion thereof in any form, without the appropriate United States and foreign licenses.  Accordingly, Licensor represents that the initial delivery of the Licensed Software is classified as mass market software controlled under ECCN EAR99 of United States export law.  Licensor will notify OEM in writing if any updates or subsequent Licensed Software include encryption or other information security technology that require export classifications or licenses for exportation other than as mass market software controlled under ECCN EAR99.
11.11.   Government Rights; Licenses to U.S. Government.  OEM will (i) identify and license Licensed Software in all proposals and agreements with the United States Government or any contractor thereof, and (ii) legend or mark Licensed Software provided pursuant to any agreement with the United States Government or any contractor therefore, as follows:
a) The Licensed Software are a "commercial item," as that term is defined at 48 C.F.R. 1.101 (OCT 1995), (i) consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227-7202-1 (JUN 1995) and 227-7202-4 (JUN 1995);
b) In the event that OEM receives a request from any agents of the U.S. government to provide Licensed Software with rights beyond those set forth above, OEM will notify Licensor of the scope of rights requested and the agency making such request and Licensor will have five (5) business days to accept or reject such request.
11.12.   Entire Agreement.  This Agreement, together with the exhibits completely and exclusively states the agreement of the parties regarding its subject matter. This Agreement replaces the Original Agreement and the Commercial License Agreements in their entirety.  It supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. This Agreement shall not be modified except by a subsequently dated written amendment signed on behalf of OEM and Licensor by their duly authorized representative and any provision of a purchase order purporting to supplement or vary the provisions hereof shall be void.


IN WITNESS WHEREOF, the parties have caused this agreement to be executed by respective duly authorized representatives as set forth below.
OEM
Numara Software USA Licensor
SENCHA INC.

EXHIBIT A
Software and Fees
Licensed Software:  
The Ext JS Library as in effect as of the date of the License Agreement, together with any Updates and Upgrades thereto during the Support Period (“Ext JS”), and The Sencha Touch Library as in effect as of the date of the License Agreement, together with any Updates and Upgrades thereto during the Support Period (“Sencha Touch”).  Ext JS and Sencha Touch are sometimes hereinafter collectively referred to as the “Licensed Software”.

OEM Software:
Numara FootPrints – is an integrated family of solutions and products that deliver valuable process integration through the convergence of IT Service, Asset and PC Lifecycle Management.

Fees.
License Fee
Year 1 (September 26, 2012 to September 25, 2013): $40,000.00
Year 2: (September 26, 2013 to September 25, 2014): $40,000.00
Year 3 (September 26, 2014 to September 25, 2015): $40,000.00
Year 4+ (optional years): Each at $40,000.00

Premium Support Fee
Year 1: $5,956 (pro-rated) US for forty-

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