Sun Software License Agreement

July 25th, 2006

PLEASE READ THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT (THE “AGREEMENT”) CAREFULLY. BY CLICKING THE ACCEPT BUTTON (OR EQUIVALENT), OR BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS OF THE DATE YOU CLICK SUCH BUTTON, OR DOWNLOAD, INSTALL OR USE THE SOFTWARE, WHICHEVER IS EARLIER (THE “EFFECTIVE DATE”). IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, YOU SHOULD NOT CLICK ON THE ACCEPT BUTTON (OR EQUIVALENT) AND YOU SHOULD NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE.  IF YOU DO NOT CLICK ON THE ACCEPT BUTTON (OR EQUIVALENT), YOU WILL NOT BE ABLE TO ACCESS THE SOFTWARE (INCLUDING PATCHES) AND INFORMATION AVAILABLE THROUGH THE ACCESS TOOLS DESCRIBED BELOW.

 

This Agreement is made by and between Sun Microsystems, Inc. (“Sun”) and the individual or entity accepting the terms and conditions as of the Effective Date.  This Agreement pertains to Software and Information (as defined below) made available by Sun via any website, tool, technology or other mechanism for the purposes described herein (collectively, the “Access Tools”).

 

1.  For all Software and/or other Information which is made available to you by Sun through the Access Tools and which is covered by a separate agreement between you and Sun (a “Separate Agreement”), the terms and conditions of that Separate Agreement shall govern your rights and obligations as to such Software and/or Information.

 

2.  For all other Software and Information made available through the Access Tools, the following terms and conditions shall govern your rights and obligations as to such Software and/or Information:

 

A. LICENSE TO USE.  Subject to and conditioned upon your compliance with the restrictions and obligations of this Agreement, including but not limited to Section 2.B:

 

a. Sun grants you a non-exclusive and nontransferable license to the software made available via the Access Tools and related documentation made available by Sun, including without limitation patches and updates (collectively, “Software”) for your own internal use only; and

 

b. Sun grants you a non-exclusive and nontransferable license to information other than Software provided or made available by Sun via the Access Tools, including without limitation release notes, read-me files, and patch number designations (collectively, “Information”) for your own internal use only.

 

B.  RESTRICTIONS. (a) The Software and Information made available under this Agreement are licensed, not sold, to you by Sun. Sun reserves all rights not expressly granted hereunder. (b) You may make a single archival copy of Software and Information to the extent permitted by law.  You may not otherwise copy the Software or Information, or modify or distribute all or any portion of the Software or Information. However, 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, you may use such specific portions of the Software only as provided in the applicable Sun documentation. (c) 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.  (d) The scope of your license does not include any right, express or implied, (i) to access, copy, distribute, display or use the Software or Information to provide diagnostic, maintenance, repair or technical support services on behalf of any third party, without Sun’s prior written authorization, or (ii) for any third party to access, copy, distribute, display or use the Software or Information to provide diagnostic, maintenance, repair or technical support services on your behalf, without Sun’s prior written authorization. (e) You may not decompile, disassemble, or reverse-engineer Software except to the extent otherwise permitted by law.  (f) 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. (g) Software and Information are the confidential information of Sun.  The scope of your license does not include any right, express or implied, to do any of the following without Sun’s prior written authorization: (i) disclose the Software or Information to any third party for your direct or indirect commercial gain or advantage,  (ii) access, copy, distribute, display or use the Software or Information in any way to provide diagnostic, maintenance, repair or technical support services for Sun software or Sun hardware on behalf of any third party for your direct or indirect commercial gain or advantage, or (iii) for any third party to access, copy, distribute, display or use the Software or Information to provide diagnostic, maintenance, repair or technical support services for Sun software or Sun hardware on your behalf for such party’s direct or indirect commercial gain or advantage.  The Software and Information are copyrighted by Sun. (h) 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 interoperate with any program(s) other than Software. (i) 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. (j) 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. (k) 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.  (l)  Your license to use the Software hereunder is conditioned upon your having a valid license to use any underlying Sun software to which the Software pertains.  For example, in the case of patches and updates for the Solaris OS, you must have a valid license to use the Solaris OS 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, PROFIT OR DATA, OR FOR ANY DIRECT, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED 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, Information, documents, technical data, and any other information 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 after obtained by or delivered to you.

 

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 term of this Agreement and for a period of three (3) years thereafter, 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 accounting 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.  The remedies provided in this section in the event of Sun’s discovery of any breach by you of this Agreement are in addition to all other rights and remedies Sun may have with respect to such breach under this Agreement, at law or in equity.

 

3.  TERMS OF USE.  You confirm that you have read and understand the terms of use located at the bottom of each Sun webpage (“Terms of Use”) and that you agree to the Terms of Use.

 

4.  ORDER OF PRECEDENCE.  In the event of any conflict between the terms and conditions of this Agreement, any Separate Agreement, and the Terms of Use, the order of precedence shall be as follows: first, any Separate Agreement; second, this Agreement; and third, the Terms of Use.  Whether a conflict exists between the terms and conditions of the aforementioned agreements shall be determined by considering the text of the contract provisions, their context and intended scope, and the subject matter of the agreements.

 

5. AUTHORITY.  If you are accepting this Agreement on behalf of a company or other entity, you represent that you are authorized to bind the company or entity 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. TERMINATION. This Agreement is effective until terminated. You may terminate this Agreement at any time by destroying all copies of Software and Information. This Agreement will terminate immediately without notice from Sun if you fail to comply with any provision of this Agreement. Sun may also terminate this Agreement at any time with written notice to you.  Upon termination, you must destroy all copies of Software and Information.

 

10.  NO AGENCY.  This Agreement does not create any partnership, franchise, joint venture, agency, or fiduciary relationship.  Neither party may bind the other party or act in a manner which expresses or implies a relationship other than that of independent contractor.

 

11. INTEGRATION. This Agreement is the entire agreement between you and Sun relating to its subject matter. It supersedes all prior and contemporaneous oral and written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter during the term of this 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 to any third party without Sun’s prior written consent.

 

PLEASE READ THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT (THE “AGREEMENT”) CAREFULLY. BY CLICKING THE ACCEPT BUTTON (OR EQUIVALENT), OR BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS OF THE DATE YOU CLICK SUCH BUTTON, OR DOWNLOAD, INSTALL OR USE THE SOFTWARE, WHICHEVER IS EARLIER (THE “EFFECTIVE DATE”). IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, YOU SHOULD NOT CLICK ON THE ACCEPT BUTTON (OR EQUIVALENT) AND YOU SHOULD NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE.  IF YOU DO NOT CLICK ON THE ACCEPT BUTTON (OR EQUIVALENT), YOU WILL NOT BE ABLE TO ACCESS THE SOFTWARE (INCLUDING PATCHES) AND INFORMATION AVAILABLE THROUGH THE ACCESS TOOLS DESCRIBED BELOW.