SunSolve

SunSolve License Agreement

SUN MICROSYSTEMS USER LICENSE AGREEMENT
(these terms replace the 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 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").  THESE TERMS 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  SERVICE OFFERING.

The Terms of this agreement are made with Sun Microsystems, Inc. ("Sun") and describe your rights and obligations regarding access to, and use of, Software and Information (as those terms are defined below) during the term.  The Terms are in addition to other agreements between us, including, as applicable, Terms of Use for Sun's web sites, software license agreements, service contracts, and purchasing agreements.

1.  DEFINITIONS.  When used in the Terms:

 "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 you may know as SunSolve or the SunSpectrum Member Support Center, or other Sun web site.

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

"Software" shall mean software and related documentation, including without limitation error corrections or patches, updates, and tools, that are made available on Sun's knowledge database, which you may know as SunSolve or the SunSpectrum Member Support Center, or other Sun web site.

2.  LIMITED SCOPE OF ACCESS.

You are responsible for confirming that you have the legal right to access and use the Software and Information that you physically access or use.  When Sun grants to you access to Software and Information, as documented in a Sun service offering or other written document agreed with Sun, then you may reproduce and use such Software and Information only to the extent that it was provided, and only in accordance with the terms and conditions of the license set forth in Section 3 below.

Please note that Sun's service offerings grant only limited access to  Software and Information.  Specifically, pursuant to a service offering, Software and Information are provided by Sun only to you, only to the extent expressly required by the corresponding service offering, and only for the systems and instances of software identified in the service offering.

Sun may also expressly grant to you and others the right to access certain patches, such as security patches.  In such situations, you may reproduce and use such Software and Information subject to the terms and conditions of the license set forth in Section 3 of the Terms.   Such grants may be documented in separate agreements with Sun, or on Sun's publicly available web sites.


3.  LICENSE TO REPRODUCE, DISTRIBUTE, 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  accept before accessing the Software or Information (each a "Separate Agreement"), the terms and conditions of those Separate Agreements shall govern your rights.

For clarity, your right to reproduce, distribute and/or use Software in the form of an update, error correction or patch (collectively, "Updates") is commonly governed by the license that governs the underlying software code to which the Update pertains.  Therefore, to the extent that you have the right to access Updates, your license with Sun that pertains to the underlying software code will typically govern your right to reproduce, distribute and/or use such Software.

Further, your right to reproduce, distribute and/or use Software in the form of a release (such as a Solaris Update Release)  is often subject to a click-thru license that accompanies the release.   Therefore, to the extent that you have the right to access a release that includes a click-thru license agreement, such license agreement shall govern your right to reproduce, distribute and/or use such Software.

To the extent that you are otherwise authorized by Sun in writing to reproduce, distribute or use  Software and Information, but where such authorization is subject to these Terms, such as in a Sun service offering, the following provisions shall govern your use of such Software and Information:

A. RIGHTS.  Subject to and conditioned upon your compliance with the restrictions and obligations of these Terms, 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.

Further, you may use Software and Information to determine the minimum configuration of  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 these Terms are licensed, not sold, to you by Sun.  Sun reserves all rights not expressly granted.

(2) You may not make more than one archival copy of Software and Information, except as otherwise 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, resell, 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 these Terms.


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 THESE TERMS.  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 these Terms 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 these Terms ; 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 these Terms. 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 these Terms, 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 of these Terms during an audit, then Sun may (1) recover the costs and fees incurred by the use of the above mentioned independent auditing firm; (2) exercise its audit right every three (3) months, until such time as the default is corrected; and (3) seek and impose 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 these Terms, 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 Software and Information as Sun's confidential information, and you will share such information only with third parties that are bona fide Related Parties 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 party 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 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 Party, 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 and that you agree to such terms.  You confirm that you have also read and understand Sun's privacy policy located at http://www.sun.com/privacy/

A.  PRIMARY USER.  If you are using Sun's knowledge database, then you may be required to identify a Primary User for your company.  The Primary User must:
(i) approve requests for access from other users (each a "User") from your company;
(ii) manage access and set end dates for User accounts;
(iii) determine the level of data that the User can access; and
(iv) determine the features (e.g., viewing contracts, logging Service Requests) that the User can access.

B.  PERSONAL INFORMATION.
You authorize Sun (i) to process your personal information in connection with its web sites, (ii) to make such personal information available to people that we appoint to process such information, and (iii) to use and distribute such information within Sun and its related companies and to certain third parties, such as subcontractors, within your country and abroad, in connection with its web sites.  Should you provide Sun with any other person's personal information, then you warrant that you have obtained their written permission for their personal information to be processed as described herein.  You agree to reasonably assist Sun as necessary to enable Sun?s compliance with applicable data privacy laws, rules and regulations.   If you are designated as a Primary User, then by agreeing to these Terms you authorize Sun to share your contact information (name, email address, phone number) with other Users from your company.  In the event that you are ever unable to access Sun's systems to modify, update, or otherwise change your personal information, then you may contact privacy@sun.com for assistance.

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

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

8.  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.

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

10.  TERM AND TERMINATION. You may terminate these Terms at any time by destroying all copies of Software and Information. Sun may terminate the Terms at any time, and Sun may require you to agree to modified terms to access Software and Information in the future.  These Terms will terminate immediately without notice from Sun if you fail to comply with any provision of the Terms.  Following termination, the terms and conditions of these Terms shall continue to govern Software and Information obtained during the term of these Terms.

11.  RELATIONSHIP.   These Terms  do 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.

12.  INTEGRATION; ASSIGNMENT.  These Terms are the entire agreement between you and Sun relating to your rights and obligations regarding access to and use, reproduction and distribution of Software and Information that is made available on Sun's knowledge database, and supersedes all prior agreements.  No modification of these Terms 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.

Rev. 25 March 09