# snowflake Commercial License Agreement

## 1. BINDING AGREEMENT

This snowflake Commercial Software License Agreement (the “Agreement”) governs Your use of the Software (as defined hereinafter). BY DOWNLOADING, INSTALLING AND/OR USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. This Agreement is effective between Us and You. “We”, “Us” or “Our” shall mean or refer to snowflake productions gmbh, having its address at Zweierstrasse 35, 8004 Zürich, Switzerland. "You" are the person downloading, installing and/or using the Software (as defined hereinafter). If you do so on behalf of a company, the term "You" means that company.

## 2. SOFTWARE AND OWNERSHIP OF THE SOFTWARE

"Software" means any version of the computer program distributed to You under this Agreement (including as made available for download from http://www.todoyu.com, http://sourceforge.net/projects/todoyu/ or other webspace on which the computer program is hosted, at the direction of Us), including any documentation, as made available to You on Our website, and any and all updates and/or patches You have received from Us. You hereby acknowledge that all rights (including without limitation, copyrights, patents and trade secrets) in the Software are the sole and exclusive property of Us. This is a license agreement and not an agreement for sale. We reserve ownership of all intellectual property rights inherent in or relating to the Software.

## 3. LICENSE GRANT

Subject to Clause 10, once You have paid to Us the License Fee (as defined in Clause 4), You shall have a perpetual, non-transferable and non-exclusive right for You to install, run, and use the copy of the Software You have received, create Modifications (as further defined in Clause 5), on one single system owned and run by You, but solely for Your own internal purposes and solely as otherwise in accordance with this Clause 3, Clauses 6 and 7 below. This right is not sub-licensable. This right is explicitly made subject to the conditions that You agree to the terms and conditions of this Agreement, and that You comply with them. The “one single system” limitation applies to operative use of the Software and does not prohibit You from making copies of the Software on a testing environment, for the purpose of creating Modifications. However, if You choose to use the Modification You must uninstall the Software and no longer make operative use of it.

## 4. LICENSE FEE, OTHER FEES

You agree to pay, as a consideration for the license granted to You under Clause 3, the current price as quoted on http://www.todoyu.com, or as confirmed by Us in the order form (“License Fee”). The License Fee is a one-time fee that falls due no later than at the date You have downloaded or otherwise received the Software. We may ask You to make an advance payment. Further fees will be payable if You order further Services from Us, according to snowflake’s then-current price list (e.g. maintenance fees for maintenance services set out in Clause 9 and Annex A).

## 5. SOURCE CODE, MODIFICATIONS

You acknowledge to have received a copy of the Software in source code form which enables You to create Modifications (as defined hereinafter). "Modification" shall mean (i) any changes You make to a file that has been included in or otherwise is part of the Software (i.e. additions to or deletions from the contents of that file), or (ii) any new file You have created containing any part of the Software; or (iii) combinations of new files with the Software, with changes You have made according to (i) and/or with changes according to (ii).

## 6. NO DISTRIBUTION

You must not distribute the Software, or Modifications You have created. You must not allow any third party to use the Software or Modifications, or any portions thereof, for any purpose. You may not rent, lease, or sublicense the Software or Modifications, or any portions thereof. You are not allowed to redistribute any part of the documentation for the Software.

## 7. PROHIBITED USES

You must not remove, change, interfere with or obscure any copyright, acknowledgment, attribution, trademark, warning or disclaimer statement included in the Software or Modifications or otherwise applied in connection with the Software or Modifications.

## 8. CONFIDENTIALITY

You agree to keep in confidence all confidential information You have received from Us (“Confidential Information”). In particular, You agree not to disclose Confidential Information to third parties, except if such Confidential Information is otherwise available to the public with no fault of Yours. The term “Confidential Information” shall include, in particular but not limited to, the source codes and documentation related to the Software. You agree not to use the Software or other Confidential Information (as defined hereinafter) in any other way than explicitly permitted under this Agreement. However, if the Software or other Confidential Information is available to You under other legal terms You may use the Software and/or other Confidential Information under such other legal terms.

## 9. UPDATES AND PATCHES

At Your request, we will provide You with maintenance services, including error correction and provision of updates according to the additional terms set out in Annex A.

## 10. TERM AND TERMINATION

This Agreement and Your right to use the Software and Modifications will terminate immediately without notice if You fail to comply with the terms and conditions of this Agreement. The provisions of Clauses 6, 7, and 8 will survive any termination of this Agreement. Upon termination, You agree to immediately cease using and redistributing the Software, and to destroy all copies of the Software or Modifications You have made, including all accompanying documents.

## 11. DISCLAIMER OF WARRANTIES

We disclaim all warranties and conditions, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, with regard to the Software. We do not represent that the operation of the Software will be uninterrupted or error-free, and You acknowledge that it is not technically practicable for Us to do so.

## 12. EXCLUSION AND LIMITATION OF LIABILITIES

We shall not be liable for any damage, even if we have been advised of the possibility of such damage, caused by Us or Our directors. In particular, but not limited to, liability for special, incidental, indirect or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information or any other pecuniary law) arising out of Your use of the Software or Your inability to use the Software shall be excluded. This exclusion of liability does not apply to the extent a damage has been caused to You by a willful act or omission of Us. Our liability for auxiliary person of us, including our suppliers, shall be fully excluded. In case one of the exclusions of liability set out in this Clause 12 should not be enforceable, You agree that Our maximum liability under this snowflake Commercial License Agreement, whether in contract, tort, or otherwise, shall in no event exceed the License Fee paid to Us.

## 13. MISCELLANEOUS

The rights of use granted herein apply only to the version of the Software received in connection with this Agreement. Any previous or subsequent license granted to You for use of the Software, or for an earlier or a subsequent version of the Software, shall be governed by the terms and conditions of the agreement entered in connection with that previous or subsequent transaction related to the Software. You may not assign this Agreement without Our prior written consent. This Agreement will inure to the benefit of Our successors and assigns. You acknowledge that this Agreement is complete and is the exclusive representation of our agreement with respect to the subject matter contemplated herein. No oral or written information given by Us or on our behalf shall create a warranty or collateral contract, or in any way increase the scope of this Agreement in any way, and You may not rely on any such oral or written information. If any provision in this Agreement shall be determined to be invalid or unenforceable, such provision shall be deemed replaced by a provision that achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision; the remainder of this Agreement shall continue in full force and effect.

## 14. WRITTEN FORM

This Agreement (including this Clause 14) may be modified only by a written instrument signed by You and Us.

## 15. APPLICABLE LAW AND FORUM

This Agreement is governed by the laws of Switzerland. Any choice of law rules will not apply. The parties irrevocably submit to the jurisdiction of the courts of Switzerland, Kanton of Zurich, and further agree to commence any litigation which may arise hereunder in the commercial court located in Zurich, Switzerland.

### Annex A to the snowflake Commercial Software License Agreement

At Your request, and subject to Your timely payment of Maintenance Fees (as defined hereinafter) and the delivery of further information reasonably necessary, snowflake will, according to the terms of this Annex A, provide You with error corrections, updates, and other services related to the Software (“Maintenance Services”), as further specified on http://www.todoyu.com. Maintenance Services are only given for the version of the Software supplied by Us, and not for any version with Modifications. This Annex A, is an agreement that is separate from the snowflake Commercial License Agreement, and it shall become applicable between You and Us on the Effective Date (as defined hereinafter). This Annex A includes by reference the terms and conditions of the snowflake Commercial License Agreement. Term, Renewal, and Termination This Annex A shall come into effect on the earlier of (i) the date on which We, upon Your request, start providing Maintenance Services to You or (ii) the date on which We confirm to You in an email or in writing that You have paid the applicable Maintenance Fee in full and that You have provided to Us with all the information we reasonably need to deliver the Maintenance Services (the "Effective Date"). This Annex A shall continue for consecutive one (1) year periods, until terminated by either party to the end of the then-current one year period by prior written notice of not less than three (3) months. A late termination notice will terminate this Annex A to the end of the following one year period. Maintenance Services If You have subscribed for Maintenance Services, You may download patches, updates and, to the extent supplied, upgrades to the Software, as they may be made available by Us from time to time. We make the respective files available for download from the snowflake web site or from any other other webspace on which these respective files are hosted, at the direction of Us. We provide technical information on http://www.todoyu.ch/developer/. Such information is generally accessible 24h, 7 days per week, except for scheduled or extraordinary downtimes as they may occur from time to time. We do not offer telephone nor on site support. We will, however, provide ticket support service during normal business hours, 8:30am – 12:00am and 01:30pm - 5:30pm CET. No further Support is included in the Maintenance Fees. Information on Maintenance Services can be e-mailed to You if You have registered an e-mail address with Us for this purpose. Because of uncertainties related to technology, We cannot guarantee the delivery of the e-mails. Suspension of Maintenance Services Even before termination of this Annex A, We shall have no further obligation to provide Maintenance Services to You: (i) if and for as long You have not paid the applicable Maintenance Fee for the current one-year period; (ii) if the snowflake Commercial License Agreement is terminated; (iii) if You have requested Us not to provide further Maintenance Services to You, which You can ask Us at any time. However, and for the avoidance of doubt, You shall in no event be entitled to any refund of Maintenance Fees paid to Us. Maintenance Fees The fees payable for Maintenance Services (“Maintenance Fees”) shall be set out in snowflake’s current price list. Except if We inform You otherwise, Maintenance Fees are yearly fees, payable in advance. Rights of Use Any computer program code provided to You as part of the Maintenance Services shall referred to as part of the Software, and any reference to the term "Software" applies to such computer program code. The right of use granted to You under the snowflake Commercial Software License Agreement extends to such computer program code. Limitation of Warranties and Remedies We warrant that the Maintenance Services we provide will be performed in a good and workmanlike manner. Requesting re-performance of services shall be Your sole remedy under this warranty. You shall have no remedy under the foregoing warranty to the extent that You fail to report in writing any defect claimed to be a breach of warranty within thirty (30) days of the performance of the Maintenance Services. THE EXPRESS WARRANTY SET FORTH IN THIS SECTION IS THE ONLY WARRANTY MADE BY US WITH RESPECT TO THE MAINTENANCE SERVICES PROVIDED BY US. WE MAKE NO OTHER WARRANTIES, EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, AND, SPECIFICALLY, WE MAKE NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. OUR EXPRESS WARRANTY SHALL NOT BE ENLARGED, DIMINISHED OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY SHALL ARISE OUT OF, OUR RENDERING TECHNICAL OR OTHER ADVICE OR SERVICE IN CONNECTION WITH THIS ANNEX A. Exclusion and Limitation of Liability The exclusion and limitation of liability set out in Clause 12 of the snowflake Commercial License Agreement shall by reference apply to this Annex A, with the clarification that You agree that Our maximum liability under this Annex A, whether in contract, tort, or otherwise, shall in no event exceed the latest Maintenance Fee paid to Us.