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Software License Agreement


SUNSOLVE LICENSE AGREEMENT

PLEASE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS (THE "TERMS").  BY CLICKING THE "ACCEPT" BUTTON BELOW, YOU HEREBY AGREE TO THE TERMS OF THIS SUNSOLVE LICENSE AGREEMENT (THE "AGREEMENT") AS OF THE DATE  YOU CLICK "ACCEPT" OR ON THE DATE YOU OR ANY RELATED PARTY FIRST USE THE SOFTWARE OR INFORMATION OBTAINED VIA THIS ONLINE ACCOUNT, WHICHEVER COMES FIRST (THE "EFFECTIVE DATE").  THIS AGREEMENT SHALL BE BINDING  ON  YOU AND ANY SUCH RELATED PARTY.  IF YOU DO NOT AGREE TO ALL OF THESE TERMS, THEN YOU SHOULD NOT CLICK ON THE ACCEPT BUTTON AND YOU WILL NOT BE ABLE TO ACCESS OR USE THE SOFTWARE OR INFORMATION, EVEN IF YOU HAVE PURCHASED A  SUPPORT CONTRACT . 

This Agreement is made with Sun Microsystems, Inc. ("Sun") and it describes your rights and obligations regarding access to, and use of, Software and Information  during the term of this Agreement.  This Agreement is in addition to other agreements between us, including, as applicable, Terms of Use for Sun's websites, software license agreements, service contracts, and purchasing agreements.    

1.  DEFINITIONS.  As used in this Agreement, the defined terms shall be as provided below.

"Information" shall mean information other than Software, including without limitation release notes, read-me files, and patch number designations, that is made available on Sun's knowledge database, which is currently known as SunSolve.

"Related Party" shall mean any employee, agent, contractor, principal or affiliated entity that (a) is authorized to access this online account, and/or (b) uses Software or Information obtained with this online account.

"Software" shall mean software and related documentation, including without limitation error corrections or patches, and updates, that are made available on Sun's knowledge database, which is currently known as SunSolve.

2.  ENTITLEMENT.  

Sun designates certain Software and Information as being available to the public without a support contract (e.g., security patches).    You may reproduce and use this Software and Information subject to the terms and conditions of the license set forth in Section 3 of this Agreement.  

You agree that you will reproduce and use Software or Information only to the extent that you have been authorized by Sun pursuant to a service plan, distribution partner entitlement, this Agreement, or other written document. 

3.  LICENSE TO REPRODUCE AND USE SOFTWARE AND INFORMATION

To the extent that your right to reproduce, distribute and/or use Software and Information is documented in one or more separate written agreements between you and Sun, including any written agreement that accompanies the Software and Information, such as a click-thru license agreement that you must accept before using the Software or Information (each a "Separate Agreement"), the terms and conditions of those Separate Agreements shall govern.

To the extent that you are otherwise authorized by Sun in writing to reproduce and use any Software and Information, but where such authorization is subject to this Agreement, such as in a Sun service listing or contract, the following terms and conditions shall govern your use of such Software and Information:

A. RIGHTS.  Subject to and conditioned upon your compliance with the restrictions and obligations of this Agreement, including the restrictions set forth in Section 3.B below, Sun grants to you a non-exclusive and nontransferable right to reproduce and use such Software and Information only for your internal use by the number of users, class of computer or other limitation for which a fee has been paid to Sun. 

For the sake of clarity, to the extent that you are entitled to use Software and Information, you may use such Software and Information to determine the minimum configuration of Sun Software that is necessary to operate with one or more of your software products that is commercially offered for sale.  A description of the minimum configuration may then be communicated to users of your software, as long as such communication does not violate the restrictions and obligations of this Section 3. 

B.  RESTRICTIONS. 

Except to the extent that Sun otherwise authorizes you in writing, the following restrictions shall apply.

(1) The Software and Information made available under this Agreement are licensed, not sold, to you by Sun.  Sun reserves all rights not expressly granted. 

(2) In addition to your right to use the Software and Information internally, you may make a single archival copy of Software and Information to the extent permitted by law.  If the Sun documentation accompanying Software lists specific portions of Software, such as header files, class libraries, reference source code, and/or redistributable files, that may be handled differently, then you may use such specific portions of the Software as provided in the applicable Sun documentation.  You may not otherwise reproduce the Software or Information, or modify or distribute all or any portion of the Software or Information. You may not create derivative works from the Software and Information. 

(3) You may not rent, lease, lend or encumber Software or Information, or use the Software or Information in any manner to provide time-share or service bureau services.  

(4) The scope of your license does not include any right, express or implied, (i) to access, reproduce, distribute, display or use the Software or Information to provide diagnostic, maintenance, repair or technical support services on behalf of any third party for your direct or indirect commercial gain or advantage without Sun's prior written authorization, or (ii) for any third party to access, reproduce, distribute, display or use the Software or Information to provide diagnostic, maintenance, repair or technical support services on your behalf for such party's direct or indirect commercial gain or advantage, without Sun's prior written authorization.

(5) You may not decompile, disassemble, or reverse-engineer Software except to the extent otherwise permitted by law.  

(6) You may not publish or provide the results of any benchmark or comparison tests run on Software to any third party without the prior written consent of Sun. 

(7) Software and Information are the confidential information of Sun and copyrighted by Sun.  You may not reproduce or distribute the Software or Information to any third party without prior written authorization from Sun.  

(8) Unless otherwise specified, if Software is delivered with embedded or bundled software that enables functionality of Software, you may not use such embedded/bundled software on a stand-alone basis or use any portion of such embedded/bundled software to interact with any program(s) other than Software. 

(9) Software may contain programs that perform automated collection of system data and/or automated software updating services. System data collected through such programs may be used by Sun, its subcontractors, and its service delivery partners for the purpose of providing you with remote system services and/or improving Sun's software and systems. 

(10) Software and Information are not designed, licensed or intended for use in the design, construction, operation or maintenance of any nuclear facility and Sun and its licensors disclaim any express or implied warranty of fitness for such uses. 

(11) No right, title or interest in or to any trademark, service mark, logo or trade name of Sun or its licensors is granted under this Agreement.  

(12)  The license to use any Software hereunder, including any patches, error corrections or updates, is conditioned upon your having a valid license to use any underlying software to which the Software pertains.  For example, in the case of patches, error corrections and updates for the Solaris 10 Operating System, you must have a valid license to use the Solaris 10 Operating System in order to use the related patches and updates provided hereunder.

C.  DISCLAIMER OF WARRANTY.   THE SOFTWARE AND INFORMATION ARE PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND.   TO THE FULLEST EXTENT PERMITTED BY LAW, ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE DISCLAIMED, EXCEPT TO THE EXTENT THESE DISCLAIMERS ARE HELD TO BE LEGALLY INVALID. 

D.  LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL SUN OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, LOST PROFIT OR LOSS OF DATA, OR FOR ANY DIRECT, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE SOFTWARE AND/OR THE INFORMATION  EVEN IF SUN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE.  IN NO EVENT WILL SUN'S LIABILITY TO YOU, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT, IF ANY, PAID BY YOU FOR THE SOFTWARE AND INFORMATION UNDER THIS AGREEMENT.  THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED WARRANTY FAILS OF  ITS ESSENTIAL PURPOSE.

E. EXPORT REGULATIONS. All Software and Information (including any technical data) made available or delivered to you under this Agreement are subject to US export control laws and may be subject to export or import regulations in other countries.  You agree to comply strictly with all such laws and regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export, or import as may be required. 

F.  U.S. GOVERNMENT RESTRICTED RIGHTS. If Software or Information is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the Government's rights in Software and Information will be only as set forth in this Agreement; this is in accordance with 48 C.F.R. 227.7202-4 or successor regulation (for Department of Defense (DOD) acquisitions) and with 48 CFR 2.101 and 12.212 or successor regulation (for non-DOD acquisitions). 

G.  RECORDS AND AUDIT.  During the period of time when you reproduce and/or use the Software or Information, and for a period of three (3) years after such last reproduction or use, you agree to keep proper records and documentation of your compliance with this Agreement. Upon five (5) business days' notice, you shall permit an independent auditing firm selected by Sun to examine and inspect, at your facility and during normal business hours, such records and documentation for the purpose of determining your compliance with the terms and conditions of this Agreement, at Sun's expense.  Sun may exercise its audit right pursuant to this section once per calendar year; provided, however that if Sun discovers a material default of your obligations pursuant to this Agreement during an audit, then Sun may exercise its audit right every three (3) months, until such time as the default is corrected, in addition to any and all remedies available to Sun at law or in equity. 

H.  INDEMNIFICATION.  You agree to indemnify and hold Sun and its subsidiaries, affiliates, agents, licensors, and representatives harmless from any claim or demand, including reasonable attorneys' fees,  due to or arising out of your violation of this Agreement, including the terms of this Section 3.

I.  CONFIDENTIALITY OF LOGIN INFORMATION.  You agree that you will treat the information that you use to access Sun's Software and Information as Sun's confidential information, and you will share such information only with third parties that are bona fide agents under Subsection J.

J.  USE OF AGENTS.  Sun authorizes you to use a bona fide agent to reproduce and use the Software and Information to provide diagnostic, maintenance, repair or technical support services only on your behalf subject to the following terms: (i) you are the beneficial owner of the computer system being diagnosed, maintained, repaired or supported, (ii) you make clear to such agent that you have delegated to the agent your right to reproduce and use the Software and Information regarding such computer system, (iii) you expressly make Sun the third-party beneficiary of a written agreement between you and the agent with terms that are at least as protective of Sun as subsections C through I of this Section 3, (iv) you agree to indemnify Sun for any violation of this Section 3 by such agent related to Software or Information obtained while acting on your behalf, and (v) upon request, you provide Sun with a copy of your agreement with the agent, and a written acknowledgment of your indemnification obligation.  

4.  TERMS OF USE.  You confirm that you have read and understand the terms of use located at http://www.sun.com/termsofuse.jsp ("Terms of Use") and that you agree to the Terms of Use.

5. AUTHORITY.  If you are accepting this Agreement on behalf of a company, entity, or your employer, you represent that you are authorized to bind such company, entity or employer to this Agreement.  You further represent that you are of majority age and otherwise competent to enter into contracts.

6.  GOVERNING LAW. Any action related to this Agreement will be governed by California law and controlling U.S. federal law. No choice of law rules of any jurisdiction will apply.

7. JURISDICTION; VENUE. The parties hereby exclusively and irrevocably submit to, and waive any objection against, the personal jurisdiction of the United States District Court for the Northern District of California, and the state courts of the State of California located in the County of Santa Clara.

8.  SEVERABILITY.  If any provision of this Agreement is held to be unenforceable, this Agreement will remain in effect with the provision omitted, unless omission would frustrate the intent of the parties, in which case this Agreement will immediately terminate.

9. TERM AND TERMINATION. This Agreement is effective until terminated. You may terminate this Agreement at any time by destroying all copies of Software and Information. Sun may terminate this Agreement at any time, and Sun may require you to agree to modified terms to access Software and Information in the future.  This Agreement will terminate immediately without notice from Sun if you fail to comply with any provision of this Agreement.  Upon termination, you must destroy all copies of Software and Information.

10.  RELATIONSHIP.  This Agreement does not create any partnership, franchise, joint venture, agency, or fiduciary relationship, and neither party may act in a manner that expresses or implies such a relationship. 

11. INTEGRATION. This Agreement is the entire agreement between you and Sun relating to your rights and obligations regarding access to, and use of, Software and Information that is made available on Sun's knowledge database, and supersedes all prior versions of the Agreement.  No modification of this Agreement will be binding, unless in writing and signed by an authorized representative of each party.  You may not assign this Agreement or any right granted hereunder to any third party without Sun's prior written consent.