ZEND SUBSCRIPTION AGREEMENT
Zend Platform(tm)


THIS SUBSCRIPTION AGREEMENT ("AGREEMENT") IS BETWEEN ZEND TECHNOLOGIES LTD. AND THE SUBSCRIBER TO, PURCHASER, LICENSEE OR USER OF, ZEND PRODUCTS OR SERVICES. IMPORTANT: READ THESE TERMS CAREFULLY BEFORE DOWNLOADING THIS SOFTWARE. BY CLICKING THE "I ACCEPT" BUTTON, YOU (THE "SUBSCRIBER") ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU  ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE THE SOFTWARE, AND IT IS YOUR RESPONSIBILITY TO TERMINATE THE DOWNLOAD PROCESS WITHOUT DOWNLOADING THE SOFTWARE.
 
1. Terms and Conditions.
1.1. Definitions 
"Confidential Information" is defined in Section 6.1.
"Designated Site" means the physical facility where Subscriber first downloads and installs the Licensed Program.
"Designated Computer" shall mean the computer with the number of CPUs identified during the purchase process with respect to a particular Software license and on which the Licensed Program is installed and operating on the operating system platform(s) identified during the purchase process.
"Documentation" is defined in Section 2.1.
"Effective Date" means the effective date of the order of the Licensed Program.
"License" means the license granted to the Software under the terms and conditions set out in Section 2 below.
 "Licensed Program" means Zend Platform(tm) software licensed by Subscriber, the current, generally released version as of the Effective Date, as installed by this installation process, and any Upgrades thereto provided by Zend pursuant to Software Support and Upgrades policy, in machine-executable form only.
"Software" is defined in Section 2.1.
"Software Support and Upgrades Fees" is defined in the Support Terms.
"Software Support and Upgrades Services" is defined in the Support Terms. 
"Subscription Fee" means the subscription fee payable for the License, for either a one-year period or perpetual, at the fee per Designated CPUs per Computer set forth in Zend's then current price list, plus any applicable Taxes.
"Subscription Term" is defined in Section 9.1.
 "Support Terms" means Zend's standard Software Support and Upgrades Terms and Conditions, set out in Exhibit A to this Agreement, attached hereto and made a part hereof by reference.
"Taxes" is defined in Section 4.2.
 "Upgrades" is defined in the Support Terms.
"Zend" means Zend Technologies Ltd., having its principal offices at P.O. Box 3619, Ramat-Gan 52136, Israel.
2. The Right to Use Software.
2.1. License. Subject to the terms and conditions set forth below and Subscriber's payment of the Subscription Fee, Zend grants to Subscriber a limited, non-exclusive and non-transferable license, during the Subscription Term (as defined below) to install and operate the Licensed Program, in machine-executable form only on the Designated Computer and solely in accordance with the associated delivered documentation (the "Documentation") (the Documentation together with the Licensed Program collectively, the "Software"), provided, however, that if the Software is purchased as part of a package with Studio Enterprise software distributed by Zend, the Software may only be used in order to develop other software products, and may not be used in a commercial or production environment. 
2.2. Designated Computer. Subscriber shall implement reasonable controls to ensure that the Licensed Program is used solely on the Designated Computer.  Zend reserves the right to audit Subscriber's use of the Licensed Program during normal business hours and with reasonable notice and to include means within the Licensed Program to limit Subscriber's use of the Licensed Program to the Designated Computer. Except as otherwise expressly provided herein, in the event that Subscriber uses the Licensed Program on any CPU other than the Designated Computer, Subscriber shall promptly pay Zend the fees required to license such additional Designated Computer based upon Zend's then-current commercial price list.
2.3. Internal Use at Designated Site. The Software may be used only at the Designated Site and on the Designated Computer for which Subscriber has paid the applicable Subscription Fee. Subscriber may only use the Software for its internal business use and not in the operation of a service bureau, time sharing or outsourcing service or for the benefit of any other person or entity
2.4. Backup Computer.  Subscriber is authorized to use the Software on a single substitute or backup computer located at the Designated Site on a temporary basis without charge any time a Designated Computer is inoperative due to a malfunction beyond the control of Subscriber.  Upon Subscriber's prior written notice and delivery to Zend of a new host identification and receipt from Zend of a new license key, Subscriber may transfer the Software on a permanent basis to a single replacement Designated Computer without charge.
2.5. Restrictions. Subscriber may only make one copy of the Software as necessary for bona fide backup or archival purposes. No identifying marks, copyright or proprietary rights notices may be deleted from any copies of the Software made by Subscriber. Except as otherwise expressly permitted hereunder, Subscriber shall not rent, transfer, distribute, modify or translate the Software or decompile, create or attempt to create, by reverse engineering or otherwise, the source code from the object code of the Software, or adapt the Software, or any portion thereof, in any way or use it to create a derivative work.  If the Software is purchased as part of a package with Studio Enterprise software distributed by Zend, the Software may only be used in order to develop other software products, and may not be used in a commercial or production environment. 
3. Software Support and Upgrades Services.
Unless the Software Support and Upgrades Fee is included in the Subscription Fee, Subscriber may elect to purchase Software Support and Upgrades Services by so ordering from Zend and paying Zend the applicable Software Support and Upgrades Services Fees in accordance with the Support Terms.

4. Payment.
4.1. Payment of Fees. Subscriber shall pay the non-refundable Subscription Fee prior to downloading the Software, which may be used for either a one-year period (the "One-Year License") or perpetually (the "Perpetual License"), in either case subject to compliance with the terms of this Subscription Agreement. At Subscriber's option during the online registration process, Zend will either charge the Subscription Fee to the credit or debit card account provided by Subscriber, or provide Subscriber with a purchase order to print out, duly execute and fax or mail to Zend followed by payment by check, credit card, debit card or wire transfer of the Subscription Fee. Subscriber will only gain access to the Licensed Program once the Subscription Fee has been transferred and accepted by Zend. 
4.2. Taxes. Subscriber shall, in addition to all other payments required hereunder, pay all applicable sales, use, transfer or other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the transaction contemplated hereby; excluding, however, income taxes on profits which may be levied against Zend ("Taxes"). Subscriber shall reimburse Zend for the amount of any such Taxes or duties paid or accrued directly by Zend as a result of this transaction.
4.3. Late Payment. If payment is not received by Zend from Subscriber's credit or debit card issuer or its agents, or if the check is not honored, Subscriber agrees to pay all amounts due upon demand by Zend. If Subscriber fails to pay Subscription Fees or Software Support and Upgrades Fees by their due date, without limitation of other rights and remedies, at Zend's request, Subscriber shall pay late charges of one and one half percent (1.5%) per month, together with all of Zend's expenses and collection costs, including reasonable attorneys' fees, incurred in enforcing the Agreement. Payments shall be paid in U.S. currency. Any rate of exchange which may be applicable to payments due or other monetary calculations for purposes of this Agreement shall be the rate set forth in the Wall Street Journal on the day that the payment is due.
5. Proprietary Rights.
5.1. Title to Software. Subscriber acknowledges that the Software (and any copies thereof) are the sole and exclusive property of Zend or Zend's licensors, including all applicable rights to patents, copyrights, trademarks and trade secrets inherent therein or appurtenant thereto, in all media now known or hereinafter developed.
5.2. Subscriber's Rights. Subscriber is not purchasing title to the Software or copies thereof, but rather is being granted only a license to use the Software.
5.3. Rights Reserved by Zend. All rights not granted to Subscriber herein are reserved to Zend.
6. Confidentiality.
6.1. Restrictions on Use. Subscriber shall not sell, transfer, publish, disclose, display or otherwise make available to others any portion of the Software, the financial terms of this Agreement, or any other information identified in writing by Zend as confidential or proprietary or which, at law or equity, ought to remain confidential (collectively, the "Confidential Information") without Zend's prior, written consent in each instance.
6.2. Disclosure to Employees. Subscriber agrees to secure and protect the Confidential Information in a manner consistent with the maintenance of Zend's right therein and to take appropriate action by instruction or agreement with its employees who are permitted access to the Confidential Information to satisfy Subscriber's obligations hereunder.
6.3. Identifying Unauthorized Use. Subscriber shall use its best efforts to assist Zend in identifying and preventing any unauthorized use, copying or disclosure of the Confidential Information, or any portion thereof, or any of the algorithms or logic contained therein.  Subscriber shall advise Zend immediately in the event Subscriber learns or has reason to believe that any person to whom Subscriber has given access to the Confidential Information, or any portion thereof, has violated or intends to violate the confidentiality of the Confidential Information or the proprietary rights of Zend, and Subscriber will, at Subscriber's expense, cooperate with Zend in seeking injunctive or other equitable relief in the name of Subscriber or Zend against any such person.
6.4. Degree of care. Subscriber agrees to maintain the confidentiality of the Confidential Information using at least as great a degree of care as Subscriber uses to maintain the confidentiality of Subscriber's own most confidential information.
6.5. Remedies on Breach.  Subscriber acknowledges that the disclosure of any aspect of the Confidential Information will immediately give rise to continuing irreparable injury to Zend inadequately compensable in damages at law, and Zend is entitled to obtain immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings, in addition to any other legal remedies which may be available. In addition, Zend may immediately terminate this Agreement, including all license rights granted herein, in the event Subscriber breaches any of its confidentiality obligations herein.

7. Warranty.
ALL SOFTWARE AND SERVICES OF ZEND ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE (INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE AND NONINFRINGEMENT). ZEND DOES NOT WARRANT THAT THE SOFTWARE WILL BE DELIVERED OR PERFORM ERROR-FREE OR WITHOUT INTERRUPTION. SUBSCRIBER'S USE OF THE SOFTWARE IS AT SUBSCRIBER'S OWN RISK.
8. Limitation of Liability.
ZEND AND ZEND'S LICENSORS SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF ZEND OR ZEND'S LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ZEND OR ZEND'S LICENSORS BE LIABLE FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER RELATING TO ANY THIRD PARTY SOFTWARE OR HARDWARE. IN NO EVENT SHALL ZEND'S AGGREGATE LIABILITY FOR ANY REASON(S) AND UPON ANY CAUSE(S) OF ACTION WHATSOEVER EXCEED THE AMOUNT OF SUBSCRIPTION FEES ACTUALLY PAID BY SUBSCRIBER TO ZEND UNDER THIS AGREEMENT.
9. Subscription Term and Termination.
9.1. Subscription Term.  The term of this Agreement (the "Subscription Term") shall commence on the Effective Date and shall continue for a period of one year with respect to the One-Year License or perpetually with respect to the Perpetual License, as shall be specified in the purchase order or invoice/price proposal, unless terminated earlier pursuant to this Agreement.  Unless otherwise specified in the purchase order or invoice/price proposal, the Subscription Term for the One-Year License shall be extended for additional one-year periods, and Subscriber will be required to pay for such extension, unless Subscriber has notified Zend in writing that it does not intend to extend the Subscription Term at least 30 days prior to the end of the then-current Subscription Term. In addition, Zend may provide a brief trial or evaluation term under which Subscriber has the right to use the Licensed Program for the sole purpose of evaluating whether to license the Licensed Program for payment.
9.2. Termination. In addition to its rights as set forth elsewhere in this Agreement, at law or in equity: (i) Zend shall have the right to terminate this Agreement upon thirty (30) days written notice to Subscriber upon material violation or breach by Subscriber, its officers or employees of any provision of this Agreement, in the event that such breach has not been cured within such period, and (ii) this Agreement shall automatically terminate in the event that Subscriber fails to meet its payment obligations hereunder.
9.3. Effect of Termination. The termination of this Agreement shall automatically, and without further action by Zend, terminate and extinguish the License. In the event of termination of this Agreement by Zend, Zend shall have the right, at any time, to take immediate possession of the Software, and all copies thereof, wherever located. Within five (5) days after the termination of the License granted hereunder, Subscriber shall return the Software, including all copies thereof, to Zend, or upon request of Zend, destroy the Software and all copies thereof and certify in writing that the same have been destroyed.
9.4. Survival. Notwithstanding the foregoing, Sections 4, 5, 6, 7, 8, 9, 11, 12 and 13 shall survive the expiration or termination hereof for any reason.
10. Operating Environment.
Subscriber is solely responsible for acquiring, installing, operating and maintaining the hardware and software environment necessary to operate the Licensed Program.
11. Export Restrictions.
THIS SUBSCRIPTION AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT, REEXPORT OR IMPORT OF THE SOFTWARE OR INFORMATION ABOUT SUCH SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA OR ANY OTHER GOVERNMENT. SUBSCRIBER SHALL NOT EXPORT, REEXPORT OR IMPORT THE SOFTWARE, DOCUMENTATION, OR INFORMATION ABOUT THE SOFTWARE OR DOCUMENTATION WITHOUT THE WRITTEN CONSENT OF ZEND AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS.
12. U.S. Government Restricted Rights.
The Software (including the Documentation) is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the United States government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause of DFARS 252.227-7013 or subparagraph (c)(1) and (2) of the Commercial Computer Software-Restricted Rights clause at 48 CFR 52.227-19 as amended, or any successor regulations thereto.
13. General.
13.1. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the terms and conditions between the parties, and supersedes and merges all prior proposals, understandings and other agreements, oral and written, between the parties, relating to the subject matter hereof. This Agreement may not be modified or altered except by written instrument duly executed by both parties.
13.2. Severability. If one or more of the provisions contained in this Agreement is held invalid, illegal or unenforceable in any respect by any court of competent jurisdiction, such holding will not impair the validity, legality, or enforceability of the remaining provisions. 
13.3. Waiver. The failure of either party to exercise any right provided for herein shall not be deemed a waiver of any further right hereunder. No action, regardless of form, arising out of this Agreement may be brought by either party more than two (2) years after the cause of action has arisen, with the exception of violation of Zend's proprietary rights in the Software or the confidentiality obligations set forth herein.
13.4. Assignment. Subscriber may not assign or sublicense, without the prior written consent of Zend, its rights, duties or obligations under this Agreement, in whole or in part, to any person or entity.
13.5. Governing Law. This Agreement and any action related hereto shall be governed by the laws of the State of Israel without reference to the conflict of laws provisions thereof. Zend and Subscriber hereby agree on behalf of themselves and any person claiming by or through them that the sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement or the subject matter hereof shall be an appropriate court located in the State of Israel. If any provision of this Agreement is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted.
13.6. Relationship of Parties. It is expressly agreed that Zend and Subscriber are acting hereunder as independent contractors.
13.7. Notice. Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, three (3) days after deposit in the U.S. mails, postage prepaid, certified mail, return receipt requested; or (iii) if by next day delivery service, upon such delivery. All notices shall be addressed to Zend at Zend Technologies Ltd. at P.O. Box 3619, Ramat-Gan 52136, Israel, and to Subscriber at the address provided by Subscriber upon downloading the Licensed Program. Either party may change its address by giving written notice to the other party. Notwithstanding the foregoing, notice by Zend to Subscriber may be effected by electronic mail sent to the electronic mail address indicated to Zend upon downloading the Licensed Program or to a different electronic mail address of which Subscriber has notified Zend.



EXHIBIT A

TO ZEND

SUBSCRIPTION AGREEMENT

Software Support and Upgrades

Terms and Conditions

These Support Services Terms and Conditions ("Support Terms") are referenced in and incorporated into the Subscription Agreement between Zend and the Subscriber. Zend may, from time to time, offer different maintenance and support options than as set forth herein. Such options will be specified on Zend's website.

1. Definitions.
Unless defined otherwise herein, capitalized terms used herein shall have the same meaning as set forth in the Subscription Agreement:
"Response Time" means the time frame within which Zend shall provide the Subscriber with a first response to a reported error in the Licensed Program submitted in writing to Zend's online help desk. Such time frame shall be within one business day.
"Software Support and Upgrades Fees" means the annual fees payable for Software Support and Upgrades in the amount set forth in the then current published price list for each Support Period (hereinafter defined), due on the effective date of the order by which Subscriber elects to obtain the Software Support and Upgrades.
"Software Support and Upgrades" is defined in section 2.1 below.
"Subscription Agreement" means the Zend Subscription Agreement between the Subscriber and Zend, which agreement references and incorporates these Support Terms.
"Upgrades" means releases and versions of the Licensed Program issued subsequent to the release or version initially delivered hereunder in which Zend has incorporated (i) accumulated corrections or Bug Fixes, (ii) Minor Upgrades, (iii) Major Upgrades, (iv) new platform compatibility; and/or (v) if applicable, new or revised Documentation that describes the updated Licensed Program. "Bug Fixes" shall be incorporated in a new version or release, indicated by a version number change in the second digit to the right of the decimal point of the version number (e.g., from version 1.0.1 to 1.0.2). A "Minor Upgrade" is defined as a new version or release, where the change in the version number appears as an increase in the first digit to the right of the decimal point of the version number (e.g., from version 1.1 to 1.2).  A "Major Upgrade" is defined as a new version or release where the change in the version number appears as an increase in the first digit to the left of the decimal point of the version number (e.g., from version 1 to 2). Upgrades shall not include any options or future products which Zend licenses separately.
2. Software Support and Upgrades.
2.1. Scope. In consideration for Subscriber's payment of the Software Support and Upgrades Fees, and subject to the terms and conditions of these Support Terms, Zend shall provide to Subscriber during the Support Period Software Support and Upgrades, as specified below:
a) Online Support. Zend shall make technical support available to Subscriber solely within the Response Time and via the Zend help desk, available through the Zend website. Technical support shall not be available via email or phone correspondence.
b.) Upgrades. Zend shall provide Subscriber with Upgrades to the Licensed Program that are generally released to Zend's similarly situated licensees.
c.) Exclusions. Notwithstanding anything to the contrary, Zend shall have no obligation hereunder to provide Software Support and Upgrades for (i) corrections of difficulties or defects due to Subscriber's computer hardware, the computer environment, the computer operating system, use of the Software on equipment or an operating system not approved by Zend or other causes external to the Software, or (ii) Software that has been modified from its standard form as provided by Zend.
2.2. Support Period. Subject to Section 2.4 below, Software Support and Upgrades for either One-Year License or Perpetual License shall be provided either: (a) for a period of one (1) year from the Effective Date (as defined in the Subscription Agreement) if the Software Support and Upgrades Fees are included in the Subscription Fees for such year;; or (b) for a period of up to one year, commencing as of the date of the order of such Software Support and Upgrades and ending on the next anniversary of the Effective Date (collectively, the "Support Period"). The Subscriber may extend the Support Period each year for an additional period of up to one (1) year, ending on the next anniversary of the Effective Date, by submitting an order for such services to Zend.
2.3. Termination for Cause. In the event Subscriber fails to make payment pursuant to the Section below entitled "Payment", or in the event Subscriber otherwise materially breaches these Support Terms and such breach has not been cured within thirty (30) days of receipt of notice of breach, Zend may suspend or cancel services.
2.4. Duration. Software Support and Upgrades, if ordered, shall be available to Subscriber (i) only so long as Subscriber maintains the current installed version of the Licensed Program with all new Upgrades and any other new releases, versions, updates, enhancements and error fixes, and so long as the equipment on which the Licensed Program is installed is configured as specified in the Documentation, (ii) only so long as Subscriber is up-to-date in its payment of Software Support and Upgrades Fees, and (iii) until termination or expiration of the Subscription Agreement. In addition, the Software Support and Upgrades may not be reinstated for an applicable Licensed Program if the Subscriber fails to obtain Software Support and Upgrades for any given time period and a Major Upgrade of the Licensed Program has been released during such period.
2.5. Limitation. Notwithstanding anything to the contrary herein, Subscriber shall be solely responsible for backing up the Licensed Program and performing other basic repairs as set forth in the Documentation or instructions which may be provided by Zend to Subscriber from time to time.
3. Payment.
3.1. Payment of Support Fees. Unless the Support and Upgrades Fees are included in the Subscription Fee, on receipt of Subscriber's order for Software Support and Upgrades, Zend shall invoice Subscriber in advance in the amount of the Software Support and Upgrades Fees, which shall be due on the Effective Date or on the effective date of the order by which Subscriber elects to obtain the Software Support and Upgrades. Subscriber hereby agrees to pay all Software Support and Upgrades Fees at the prices and upon terms as set forth herein.  Subscriber acknowledges that Software Support and Upgrades Fees are non-refundable.
3.2. Prices. Zend reserves the right to change prices or institute new charges for the Software Support and Upgrades effective after the first anniversary of the Effective Date, provided that Zend posts such new charges on Zend's website at least thirty (30) days in advance. Subscriber's continued use of the Software Support and Upgrades thereafter constitutes Subscriber's acceptance of the prices and/or charges as modified by Zend.
4. Warranty.
ALL SERVICES AND SOFTWARE OF ZEND ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE (INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE AND NONINFRINGEMENT). ZEND DOES NOT WARRANT THAT THE SOFTWARE WILL BE DELIVERED OR PERFORM ERROR-FREE OR WITHOUT INTERRUPTION. SUBSCRIBER'S USE OF THE SOFTWARE IS AT SUBSCRIBER'S OWN RISK.
5. General.
Zend shall not be liable for any failure or delay in performance under these Support Terms due to causes beyond its reasonable control.  Any illegal or unenforceable provision shall be severed from these Support Terms.  Subscriber agrees that any information received pursuant to these Support Terms shall be deemed to be subject to the non-disclosure obligations set forth in the Subscription Agreement.  Subscriber's obligation of payment of monies due to Zend under these Support Terms shall survive termination of these Support Terms or the Subscription Agreement.  These Support Terms state the entire agreement regarding Zend's provision of Support Services to Subscriber and may be amended only by a written amendment set forth on a separate document executed by authorized representatives of both parties.
