| Technology Evaluation License |
| |
| READ THE TERMS OF THIS TECHNOLOGY EVALUATION LICENSE INCLUDING EXHIBIT A |
| ("AGREEMENT") CAREFULLY BEFORE downloading technology or OPENING |
| TECHNOLOGY MEDIA PACKAGE. BY OPENING TECHNOLOGY MEDIA PACKAGE, YOU AGREE |
| TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCESSING TECHNOLOGY |
| ELECTRONICALLY, INDICATE YOUR ACCEPTANCE OF THESE TERMS BY SELECTING THE |
| "ACCEPT" (OR EQUIVALENT) BUTTON AT THE END OF THIS AGREEMENT. IF YOU DO |
| NOT AGREE TO ALL OF THE TERMS, PROMPTLY RETURN THE UNUSED TECHNOLOGY TO |
| SUN OR, IF TECHNOLOGY IS ACCESSED ELECTRONICALLY, SELECT THE "DECLINE" |
| (OR EQUIVALENT) BUTTON AT THE END OF THIS AGREEMENT. |
| |
| The Agreement is made between Sun Microsystems, Inc., a Delaware |
| corporation with its address at |
| |
| 4150 Network Circle, Santa Clara, CA 95054 |
| |
| ("Sun"), and the individual, corporation, partnership or other legal |
| entity receiving the Technology ("Licensee").The parties agree as follows: |
| |
| I. EXHIBIT A: |
| |
| Effective Date: The date Licensee receives the Technology. |
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| Technology: Sun Studio GUI Modules for dbx debugger. |
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| Version: 0.9. |
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| The Technology is Pre-Release Technology. |
| Permitted Number of Copies: One (1). |
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| Evaluation Period: One-hundred-twenty (120) days. |
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| Feedback Frequency: Licensee will provide feedback to the individual or |
| alias specified by Sun and at the frequency requested by Sun. |
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| II. Technology Evaluation License |
| |
| 1 DEFINITIONS. |
| 1.1 "Binary Technology" means program code provided to Licensee by Sun |
| in machine readable format. Binary Technology includes available |
| related documentation. |
| 1.2 "Confidential Information" means (a) with respect to Licensee, |
| information disclosed by Licensee to Sun about the performance or |
| interoperability of Licensee's products with the Technology that, if |
| written, is clearly identified in writing as confidential, and if |
| oral, is identified as confidential at the time of disclosure and |
| followed by a written summary of the information within 30 days |
| after disclosure, but in any case, excludes Feedback (collectively |
| "Licensee Confidential Information"), and (b) with respect to Sun: |
| (i) information that Sun discloses to Licensee related to the Technology; |
| (ii) the Technology (including the capabilities, features and existence |
| of the Technology); (iii) any Feedback; (iv) any notes, extracts, |
| analyses, or materials prepared by Licensee which are copies of or |
| derivative works of the Technology, or from which the capabilities, |
| features or existence of the Technology can be derived; and |
| (v) the terms of this Agreement (collectively "Sun Confidential Information"). |
| 1.3 "Feedback" means all test results, error data, reports or other information |
| or materials made or other information or materials made or provided to Sun by |
| or on behalf of Licensee relating to the Technology, and all comments, |
| suggestions, enhancements, and any other forms of feedback that Licensee |
| may provide to Sun in the course of discussion, evaluation or exchange of |
| Sun Confidential Information under this Agreement. |
| 1.4 "Intellectual Property Rights" means worldwide common law and statutory |
| rights associated with: (i) patents and patent applications; (ii) works of |
| authorship, including mask work rights, copyrights, and moral rights; |
| (iii) protection of trade and industrial secrets and confidential information; |
| (iv) other proprietary rights relating to intangible intellectual property |
| (specifically excluding Sun Trademarks); and (v) divisions, continuations, |
| renewals, reissuances, and extensions of the rights set forth above |
| (as applicable). |
| 1.5 "Licensed Software" means software in binary or source code forms, |
| including all machine readable materials, user manuals, programming guides |
| and other documentation, as provided to Licensee by Sun under Exhibit A. |
| 1.6 "Licensors" means Sun licensors that have licensed third party code |
| to Sun that is included in Technology. |
| 1.7 "Pre-Release Technology" means all technology designated as Pre-Release |
| in Exhibit A. |
| 1.8 "Source Technology" means program code provided to Licensee by Sun in |
| high-level computer language readable by humans skilled in the language. |
| Source Technology includes available related documentation and tools, |
| including comments, internal development tools and build environments. |
| 1.9 "Sun Confidential Information" means: (i) information that Sun discloses |
| to Licensee related to the Technology or marked as confidential and |
| disclosed under this Agreement; (ii) the Technology (including the |
| capabilities, features and existence of the Technology); (iii) any Feedback; |
| (iv) any notes, extracts, analyses, or materials prepared by Licensee which |
| are copies of or derivative works of the Technology, or from which the |
| capabilities, features or existence of the Technology can be derived; |
| and (v) the terms of this Agreement. |
| 1.10 "Sun Trademarks" means all names, marks, logos, designs, trade |
| dress and other brand designations used by Sun. |
| 1.11 "Technology" means all technology described in Exhibit A and provided |
| to Licensee by Sun under Agreement, including without limitation, Licensed |
| Software, documentation, Updates, and test suites. |
| 1.12 "Updates" means subsequent releases, enhancements or error corrections |
| for the Technology as Sun may provide to Licensee from time to time under this |
| Agreement. |
| |
| 2 LIMITED LICENSES. Subject to and conditioned upon Licensee's compliance |
| with the conditions and restrictions set forth in this Agreement, Sun grants |
| to Licensee a personal, non-exclusive, non-transferable, royalty-free and |
| limited license to view the Source Technology, if any, and to use other |
| portions of the Technology (including Binary Technology) internally solely |
| for the purpose of evaluation during the term of this Agreement. |
| |
| 3 RESTRICTIONS. |
| 3.1 No license under this Agreement is granted to Licensee for any purpose |
| not specifically set forth in Section 2 (Limited Licenses) of this Agreement. |
| Except as otherwise provided by law, Licensee is not authorized to modify, |
| make derivative works of, disclose, distribute, reverse engineer or |
| disassemble the Technology, decompile binary portions of the Technology, |
| or otherwise attempt to derive source code from such portions, or transfer |
| the Technology to any third party or use it in development activities. |
| 3.2 Licensee shall have no right to use the Technology for commercial uses |
| or in a production environment. |
| 3.3 Licensee may copy and use the number of copies of Licensed Software as |
| authorized in Exhibit A and make one (1) additional copy for backup purposes |
| only, provided that Licensee reproduces all copyright and other notices |
| appearing on or in the Licensed Software on any such copy. |
| 3.4 Except as expressly provided in Section 2 ("Limited Licenses") of this |
| Agreement, no right, title, or interest in or to the Technology or any Sun |
| Trademarks is granted under this Agreement. Sun retains all right, title |
| and interest, including associated Intellectual Property Rights, in and to |
| the Technology, any Sun Trademarks, and any modifications, improvements or |
| enhancements to the Technology. |
| 3.5 If the Technology is delivered with embedded or bundled software that |
| enables functionality of the Technology ("Embedded Technology"), then |
| Licensee may use such Embedded Technology only in conjunction with the |
| Technology and subject to applicable terms and conditions associated |
| with such Embedded Technology. |
| 3.6 Portions of Licensed Software may be provided with notices and open |
| source licenses from communities and third parties that govern the use |
| of those portions, and any licenses granted hereunder do not alter any |
| rights and obligations Licensee may have under such open source licenses, |
| however, the disclaimer of warranty and limitation of liability provisions |
| in this Agreement will apply to all Licensed Software. |
| |
| 4 NO SUPPORT. |
| Sun is under no obligation to support the Technology or to provide Licensee |
| with Updates unless otherwise agreed by an authorized representative of |
| Sun in writing. If Sun, at its sole option, supplies Updates to Licensee, |
| the Updates will be considered part of the Technology, and subject to |
| the terms of this Agreement. |
| |
| 5 LICENSEE DUTIES. |
| 5.1 Pre-Release Technology. If the Technology provided is Pre-Release |
| Technology as designated in Exhibit A, then Licensee agrees to evaluate |
| and test the Technology. Licensee shall supply Sun with Feedback as |
| reasonably requested by Sun, but no more frequently than weekly unless |
| otherwise agreed by the parties in writing. Feedback is the exclusive |
| property of Sun. Licensee hereby agrees to and assigns all right, title |
| and interest it may have in such Feedback, including, without limitation, |
| modifications, improvements, and enhancements to the Technology, to Sun |
| at no cost. |
| 5.2 Delivery of the Technology to Licensee will be at Licensee's cost |
| unless otherwise specified by Sun, subject to availability as determined |
| solely by Sun. Licensee assumes all risk of loss or damage upon shipment |
| of the Technology by Sun. Unless otherwise set forth in Exhibit A, |
| Licensee will be responsible for installing the Technology. |
| |
| 6 TERM AND TERMINATION. |
| 6.1 This Agreement will commence on the Effective Date and will continue |
| for the term set forth in Exhibit A (the "Evaluation Period"), unless |
| terminated earlier in accordance with this Section 6. If no Evaluation |
| Period is specified in Exhibit A, then the Evaluation Period shall equal |
| (i) ninety (90) days commencing on the Effective Date. |
| 6.2 Either party may terminate this Agreement without cause upon ten (10) |
| days' written notice to the other party. In addition, Sun may terminate |
| this Agreement immediately with written notice if (i) any Technology |
| becomes, or in Sun's opinion is likely to become, the subject of a claim |
| of infringement or misappropriation of any Intellectual Property Right; |
| (ii) Licensee breaches any of its obligations under this Agreement; |
| (iii) Licensee takes any action in derogation of Sun's rights to Sun |
| Confidential Information; or (iv) Licensee infringes or challenges the |
| validity of any Sun Intellectual Property Rights. |
| 6.3 Upon termination or expiration of this Agreement, Licensee will |
| immediately cease using the corresponding Technology. Licensee will |
| immediately destroy any and all Licensed Software and any copies of |
| Licensed Software and provide Sun a written statement by Licensee's |
| authorized representative certifying that Licensee has complied with |
| these obligations. |
| 6.4 Rights and obligations under this Agreement |
| that by their nature should survive will remain in effect after |
| termination or expiration of this Agreement. |
| |
| 7 CONFIDENTIAL INFORMATION. |
| 7.1 Neither party may disclose or use the other party's Confidential |
| Information except for the purposes specified in this Agreement. Each |
| party will protect the confidentiality of the other party's Confidential |
| Information to the same degree of care, but no less than reasonable care, |
| as the party uses to protect its own confidential information. Each party's |
| obligations regarding the other party's Confidential Information will |
| expire five (5) years from the date of receipt of such Confidential |
| Information, except for Sun source code which will be protected in |
| perpetuity. Licensee agrees and acknowledges that the Technology contains |
| trade secrets of Sun. |
| 7.2 The receiving party will not be obligated to protect Confidential |
| Information that the receiving party can clearly demonstrate in writing is: |
| (i) through no act or failure to act on the part of the receiving party is |
| known or becomes known to the general public; (ii) known to the receiving |
| party without an obligation of confidentiality at the time of receiving the |
| Confidential Information; (iii) rightfully furnished, after the Effective Date, |
| to the receiving party by a third party without restriction on disclosure; or |
| (iv) independently developed by the receiving party without any use of the |
| other party's Confidential Information. |
| 7.3 The receiving party may disclose the other party's Confidential Information |
| pursuant to statute, regulation, or the order of a court of competent |
| jurisdiction, provided that the receiving party provides the other party with |
| prior notice and cooperates with the other party in taking appropriate |
| protective measures. |
| 7.4 The receiving party will restrict access to the other party's Confidential |
| Information to those of the receiving party's employees or subcontractors |
| who require access in order to perform their employment duties or to perform |
| the party's contractual obligations under this Agreement, and who have agreed |
| in writing to be bound by confidentiality obligations at least as protective |
| as those set forth in this Agreement. |
| |
| 8 DISCLAIMER OF WARRANTY. |
| 8.1 Licensee acknowledges that the Technology is not designed or intended for |
| use in the design, construction, operation or maintenance of any nuclear facility. |
| 8.2 THE TECHNOLOGY AND CONFIDENTIAL INFORMATION ARE PROVIDED "AS IS" AND WITHOUT |
| WARRANTY OF ANY KIND. ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, |
| AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY |
| QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY OF NON-INFRINGEMENT, |
| ARE DISCLAIMED, TO THE FULLEST EXTENT PERMITTED BY LAW. |
| |
| 9 LIMITATION OF LIABILITY. |
| 9.1 Licensee acknowledges that the Technology may be experimental. Licensee |
| further acknowledges that the Technology may have defects or deficiencies that |
| cannot or will not be corrected by Sun. Licensee will indemnify and hold Sun |
| harmless from any claims based on Licensee's use of the Technology for any |
| purpose, and from any claims that later Updates furnished to Licensee are |
| incompatible with the Technology provided to Licensee under this Agreement. |
| Neither Sun nor its Licensors are under any obligation to release a commercial |
| version of the Technology. |
| 9.2 Licensee acknowledges that the Technology may not have been approved by |
| the United States Federal Communications Commission, any other governmental |
| agency, or any test laboratory (for example without limitation, Underwriter's |
| Laboratories, and TUV). |
| 9.3 NEITHER Sun nor any of its licensors will be liable for any indirect, |
| punitive, special, incidental or consequential damages in connection with or |
| arising out of this Agreement (including loss of business, revenue, profits, |
| goodwill, use, data, electronically transmitted communications or other |
| economic advantage), however they arise, whether for breach of contract, |
| breach of warranty or in tort, including negligence, and even if that party |
| has previously been advised of the possibility of such damages AND WHETHER |
| OR NOT SUCH DAMAGES ARE FORESEEABLE. In no event will Sun's aggregate |
| liability to Licensee for all claims under this Agreement, whether in contract, |
| tort (including negligence), or otherwise, exceed the amount paid by Licensee |
| for the Technology under this Agreement. |
| 9.4 Liability for damages will be limited and excluded as set forth above even |
| if any exclusive remedy provided in this Agreement fails of its essential purpose. |
| Some states do not allow the exclusion of incidental or consequential damages, |
| so some of the terms above may not be applicable to you. |
| |
| 10 U.S. GOVERNMENT RIGHTS. |
| The Technology is a "commercial item," as that term is defined in 48 C.F.R. |
| 2.101 (Oct. 1995), and may consist of "commercial computer software" (as that |
| term is defined at 48 C.F.R. � 252.227-7014(a)(1)) and "commercial computer s |
| oftware documentation" as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). |
| Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 |
| (June 1995), all U.S. Government End Users acquire Technology with only those |
| rights set forth herein. This U.S. Government Rights clause is in lieu of, |
| and supersedes, any other FAR, DFAR, or other clause or provision that |
| addresses Government rights in computer software under this Agreement. |
| |
| 11 GENERAL. |
| 11.1 All disputes will be governed by California law and controlling U.S. |
| federal law. The venue for litigation will be the appropriate courts located |
| in Santa Clara County, California. The parties agree that the Federal District |
| Court for the Northern District of California shall have exclusive jurisdiction |
| over any dispute involving exclusively federal causes of action. That court and |
| the California state courts in Santa Clara County, California shall have exclusive |
| jurisdiction over all other disputes. The parties hereby submit to the personal |
| jurisdiction of those courts. Choice of law rules of any jurisdiction and the |
| United Nations Convention on Contracts for the International Sale of Goods will |
| not apply to the Agreement or any dispute arising out of or related to this |
| Agreement. |
| 11.2 Licensee agrees that the Technology and technical data delivered under this |
| Agreement are subject to U.S. export laws (including but not limited to the |
| Export Administration Regulations ("EAR": 15 C.F.R. Parts 730-774)) and |
| applicable trade laws of other countries. Licensee agrees to strictly |
| comply with all such laws and assumes responsibility to obtain licenses |
| to export, re-export, or import as may be required. Unless authorized by |
| United States export laws, Licensee agrees that (i)�no Technology or technical |
| data or direct product therefrom is being or will be acquired for, shipment, |
| transfer, or re-export, directly or indirectly, to: a) any country subject to |
| U.S. Embargo or terrorist controls or b) a country and its nationals in Country |
| Group D:1 as listed in Part 740 Supplement 1 of the EAR; (ii) Licensee nor any |
| party to whom Technology and technical data are transferred is not identified |
| on any U.S. Government export exclusion lists; and (iii) Technology and |
| technical data will not be used for nuclear, missile, chemical biological |
| weaponry, or other weapons of mass destruction. These obligations shall |
| survive expiration or termination of this Agreement. |
| 11.3 Any express waiver or failure to exercise promptly any right under this |
| Agreement will not create a continuing waiver or any expectation on non-enforcement. |
| To be enforceable, a waiver must be in writing and signed by an authorized |
| representative of the waiving party. |
| 11.4 It is understood and agreed that, notwithstanding any other provision of |
| this Agreement, Licensee's breach of Sections 2.0 (Limited Licenses), |
| 3.0 (Restrictions), 6.0 (Term and Termination), and/or 7.0 (Confidential |
| Information) of this Agreement will cause Sun irreparable damage for which |
| recovery of money damages would be inadequate, and that Sun will therefore |
| be entitled to seek injunctive relief to protect Sun's rights under this |
| Agreement, without posting bond or other security, in addition to any and |
| all other remedies available under this Agreement, at law, and in equity. |
| 11.5 Neither party may assign or otherwise transfer any of its rights or |
| obligations under this Agreement (whether by operation of law or otherwise), |
| without the prior written consent of the other party, except that Sun may |
| assign this Agreement to an affiliated company, or in the event of a merger, |
| acquisition, combination or sale of substantially all of the assets of Sun |
| or a Sun business unit, without such consent. |
| 11.6 If any term or provision of this Agreement is found to be invalid |
| under any applicable statute or rule of law, such provision shall be |
| enforced to the maximum extent permissible to effect the intent of the |
| parties, and the remainder of this Agreement shall continue in full force |
| and effect. |
| 11.7 No modification to this Agreement will be binding, unless in writing |
| and manually signed by an authorized representative of each party. |
| 11.8 This Agreement, constitutes the parties' entire agreement relating |
| to its subject matter. It cancels and supersedes all prior and contemporaneous |
| oral and written communications, proposals, conditions, representations and |
| warranties and prevails over any conflicting or additional terms contained in |
| any quote, purchase order, acknowledgment, or other communication between the |
| parties relating to its subject matter during its term, including but not |
| limited to terms of any Binary Code Licenses, Supplemental Terms, or other |
| standard licenses accompanying the Technology. |