EXHIBIT 10.15
XACCT END-USER LICENSE AGREEMENT
This is the End-user License Agreement (the "AGREEMENT") between you,
both the individual installing the Product and any legal entity such individual
acts for (the "LICENSEE"), and XACCT Technologies Inc. if the Licensee is
situated in North America, or XACCT Technologies (1997) Ltd. if the Licensee is
situated outside of North America ("XACCT"). This Agreement governs all portions
of the Product (as defined below) except as otherwise provided in Section 2.4.
THIS PRODUCT CONTAINS CERTAIN COMPUTER PROGRAMS AND OTHER PROPRIETARY
MATERIAL, THE USE OF WHICH IS SUBJECT TO THIS AGREEMENT. BY CLICKING THE BOX
ENTITLED: "YES" OF TYPING "Y" OR "YES" LICENSEE WILL BE AGREEING TO BE BOUND BY
ALL THE TERMS AND RESTRICTIONS OF THIS AGREEMENT. LICENSEE SHOULD CAREFULLY READ
THE FOLLOWING TERMS AND CONDITIONS BEFORE CLICKING THE BOX ENTITLED "YES" OR
TYPING "Y" OR "YES". IF THE LICENSEE DOES NOT AGREE WITH ALL THE TERMS, THE
LICENSEE MUST CLICK THE BOX ENTITLED "NO" OR TYPE "N" OR "NO". TAKING ANY STEP
TO SET-UP OR INSTALL THE PRODUCT CONSTITUTES THE LICENSEE'S ASSENT TO AND
ACCEPTANCE OF THIS AGREEMENT. IF THESE TERMS ARE CONSIDERED AN OFFER BY XACCT,
ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
1. DEFINITIONS:
1.1. "PRODUCT" means the software programs, original electronic media and
all accompanying manuals and other documentation, together with all
enhancements, upgrades, and extensions thereto that may be provided by XACCT or
its licensors to the Licensee from time to time.
1.2. "LICENSED CONFIGURATION" means the choice of products, features, and
the maximum number of instances of application on the approved network
architecture or any other hardware or software specifications, as declared by
the Licensee in the Licensee's purchase order, or request for License Key, and
upon which the licensing fee was based.
1.3. "LICENSED-SERVER" means the server (defined by the host ID declared by
the Licensee to XACCT) which enables the Product to operate in accordance with
the Licensed Configuration.
1.4. "LICENSE KEY" means the code provided to the Licensee by XACCT which
enables the Product to operate on the Licensed-server for the specified Licensed
Configuration.
2. LICENSE:
2.1. XACCT hereby grants to the Licensee and only the Licensee a
non-exclusive, non-sublicensable, non-transferable license to use only the
object code of the Product subject to the terms and upon the conditions of this
Agreement. The Licensee has no right to receive, use or examine any source code
or design documentation relating to the Product.
2.2. This Agreement permits the use of the Licensed Configuration of the
Product by the Licensee. Such authorized use is controlled by the License Key,
which enables the Licensed-server to operate in accordance with the Licensed
Configuration. If the Licensee's Licensed-server is disabled, XACCT may, at its
sole discretion, issue the Licensee another License Key which will enable the
Licensee to operate this Product on a substitute Licensed-server. In this event,
the Licensee agrees not to use the original Licensed-server nor its License Key.
The Licensee shall have the right to install certain sections or component parts
of the Product, if applicable, provided however, that such installation does not
exceed the authorized number of installations specified in the applicable
Licensed Configuration.
2.3. Except for a reasonable number of back-up copies of the software
programs included in the Product, the Licensee may not copy the Product
(including without limitation any associated documentation). All titles,
trademarks and copyright and restricted rights notices shall be reproduced on
such back-up copies.
2.4. Software comprised of Category A Software (as described in SCHEDULE A)
is governed by this Agreement and the additional terms set forth in SCHEDULE A,
which, together with any attachments to SCHEDULE A, is incorporated into this
Agreement in its entirety. To the extent any additional terms set forth in
SCHEDULE A conflict with the provisions of the main body of this Agreement, the
terms in SCHEDULE A shall apply with respect to the corresponding Category A
Software.
2.5. This Section 2.5 shall only apply if the Licensee is licensing the
Product or components or features of the Product for an initial evaluation
period. The Agreement is valid only for a period of thirty (30) days from the
delivery of the Product or components or features of the Product, and is
designed to allow the Licensee to evaluate the Product or components or features
of the Product during such period in order to determine whether or not the
Licensee wishes to enter into a longer-term license agreement with XACCT. In the
event that the Licensee determines to enter into a longer-term license agreement
with XACCT, XACCT will assign the Licensee a License Key that will allow
utilization of the Product or components or features of the Product following
any such evaluation period, and all of the terms and conditions of this
Agreement will continue to apply throughout the license period. In the event
that the Licensee determines not to enter into a licensing transaction with
XACCT by the end of the evaluation period, or that XACCT advises the Licensee
that discussions with respect to a licensing transaction have terminated, the
Licensee's rights under this Agreement shall terminate, the Licensee shall
promptly return the Product or components or
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features of the Product and all copies to XACCT, the Licensee shall promptly
destroy any derivative material relating to the Product or components or
features of the Product, and the Licensee shall not retain or use any such
material in any form or for any reason.
3. MAINTENANCE AND SUPPORT:
XACCT has no obligation to provide support, maintenance, upgrades,
modifications, or new releases under this Agreement.
4. TITLE, PROTECTION OF INTELLECTUAL PROPERTY, TERMINATION:
4.1. The Product is protected under national and international copyright,
and trade secret and patent laws. All right, title, and interest to the Product
shall remain with XACCT or its licensors. The license granted herein does not
constitute a sale of the Product or any portion or copy of it. A copy of the
Product is provided to the Licensee only to allow the Licensee to exercise the
Licensee's rights under the license. The Product is licensed to the Licensee for
the Licensee's internal use only, and the Product or any derivative or by
product of the Product may not be sub-licensed, re-sold, rented, or distributed
to or used by (or for the benefit of) any other party. Except as otherwise
provided by law, the Licensee agrees not to (or permit others to) (i) decipher,
reverse engineer, de-compile, disassemble, or otherwise attempt to derive the
source code of the Product, (ii) create derivative works based on the Product or
any part thereof, (iii) develop methods to enable unauthorized parties to use
the Product, (iv) develop any other product containing any of the concepts and
ideas contained in the Product or (v) remove any Product identification,
copyright or other notices. The Licensee may not assign the Licensee's rights
under this Agreement without the prior written consent of XACCT.
4.2. The Licensee agrees that XACCT may terminate this Agreement at any time
without prior notice in the case of the Licensee's breach of any of the
provisions hereof. Upon termination of this Agreement, the Licensee agrees to
cease all use of the Product and to destroy the Product and all documentation
and related materials in the Licensee's possession, and to certify their
destruction. Except for the license granted in Section 2 of this Agreement, the
terms of this Agreement shall survive termination.
4.3 XACCT or its licensors shall have the right, but not the obligation,
to defend or settle, at its discretion, any legal action against the Licensee
arising from a claim that the Licensee's permitted use of the Product under this
Agreement infringes any patent, copyright, or other ownership rights of a third
party. The Licensee agrees to provide XACCT written notice of any such claim
within ten (10) days of the Licensee's notice thereof and provide reasonable
assistance in its defense. XACCT or its licensors have sole discretion and
control over such defense and all negotiations for a settlement or compromise,
unless XACCT notifies the Licensee that it does not intend to defend or settle
such legal action, in which case the Licensee is free to pursue any alternative
the Licensee may have. The foregoing obligation, if any, of XACCT or its
licensors does not apply with respect to Product or portions or components
thereof: (i) not supplied by XACCT; (ii) which are modified after shipment by
XACCT, if the alleged infringement
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relates to such modification; (iii) combined with other products, processes or
materials where the alleged infringement relates to such combination; (iv) where
the Licensee continues allegedly infringing activity after being notified
thereof or after being informed of modification that would have avoided the
alleged infringement, or (v) where the Licensee's use of the Product is incident
to an infringement not resulting primarily from the Product or is not strictly
in accordance with this Agreement. THE FOREGOING IS IN LIEU OF ANY WARRANTIES OF
NONINFRINGEMENT WHICH ARE HEREBY DISCLAIMED.
4.4. In the event that any or all parts of the Product are held or are
believed by XACCT to infringe, XACCT may, at its sole discretion, (a) modify the
Product to be non-infringing or (b) obtain for the Licensee a license to
continue using the Product. If it is not commercially reasonable to perform
either of the above options, then XACCT may, in its sole discretion, terminate
this Agreement and refund the license fees paid for the Product with reasonable
depreciation for the period of actual usage.
5. LIMITED WARRANTY; DISCLAIMER OF WARRANTIES AND LIMITED REMEDY:
5.1. XACCT warrants that for a period of ninety (90) days from the date the
Licensee receives the original License Key (i) the media on which the Product is
furnished will be free from defects in material and workmanship and (ii) the
Product (except for the portions licensed or provided to XACCT by third parties,
including without limitation Sun Microsystems, Inc. or Oracle Software Systems
(Israel) Ltd. shall substantially conform to XACCT's user manual, as it exists
at the date of delivery. XACCT'S ENTIRE LIABILITY AND THE LICENSEE'S SOLE AND
EXCLUSIVE REMEDY SHALL BE, AT XACCT'S OPTION, EITHER: (I) RETURN OF THE PRICE
PAID FOR THE PRODUCT, RESULTING IN TERMINATION OF THIS AGREEMENT, OR (II) REPAIR
OR REPLACEMENT OF THE PRODUCT OR MEDIA THAT DOES NOT MEET THIS LIMITED WARRANTY.
5.2. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THE PRECEDING PARAGRAPH,
THIS PRODUCT IS PROVIDED TO THE LICENSEE "AS IS". ALL EXPRESS OR IMPLIED
CONDITIONS, REPRESENTATIONS, AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR
NONINFRINGMENT ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE
HELD TO BE LEGALLY INVALID. XACCT DOES NOT WARRANT THAT THE PRODUCT WILL MEET
THE LICENSEE'S REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR
FREE OR THAT ALL DEFECTS WILL BE CORRECTED.
SOME STATES, PROVINCES OR COUNTRIES DO NOT ALLOW THE EXCLUSION OF
IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO
THE ABOVE LIMITATIONS MAY NOT APPLY TO THE LICENSEE. THIS WARRANTY GIVES THE
LICENSEE SPECIFIC LEGAL RIGHTS. THE LICENSEE MAY HAVE OTHER RIGHTS WHICH VARY
FROM STATE TO STATE, COUNTRY TO COUNTRY.
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6. LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
XACCT OR ITS SUPPLIERS OR LICENSORS ARE NOT LIABLE TO THE LICENSEE OR ANY THIRD
PARTY UNDER ANY LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT OR CONTRACT)
FOR ANY DAMAGES ARISING OUT OF THIS AGREEMENT OR THE USE OF OR THE INABILITY TO
USE THE PRODUCT WHETHER ACTUAL, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL,
INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR SAVINGS, LOSS OF DATA, LOSS OF
SYSTEM AVAILABILITY, LOSS OF COMPUTER RUN TIME OR COST OF COVER. THESE
LIMITATIONS SHALL APPLY WHETHER OR NOT XACCT OR ITS LICENSORS HAVE BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OR ANY LIMITED REMEDY PROVIDED HEREIN. XACCT'S AND ITS SUPPLIERS' AND
LICENSORS' MAXIMUM AGGREGATE LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE
LICENSE FEES RECEIVED BY XACCT UNDER THIS AGREEMENT FOR THE PARTICULAR PRODUCT
WHICH CAUSED THE DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
INCIDENTAL OR CONSEQUENTIAL DAMAGES OR OTHER FORMS OF DAMAGES OR LIABILITY, SO
THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO THE LICENSEE. SHOULD THE
LICENSEE BE IN A EUROPEAN UNION COUNTRY, NOTWITHSTANDING ANYTHING TO THE
CONTRARY HEREIN, XACCT DOES NOT SEEK TO LIMIT ITS LIABILITY IN THE EVENT DEATH
AND PERSONAL INJURY AS A RESULT OF ITS NEGLIGENCE.
7. GENERAL:
7.1. The Agreement sets forth the entire understanding and agreement
between the Licensee and XACCT and supersedes any other communications or
advertising with respect to the Product. This Agreement may be amended only by a
writing signed by both parties. If any provision of this Agreement is held to be
invalid or unenforceable by a court of competent jurisdiction, that provision of
the Agreement will be enforced to the maximum extent permissible so as to effect
the intent of the Agreement, and the remainder of the provisions of this
Agreement shall remain in full force and effect.
7.2. For users in North America the laws of the State of California shall
govern all issues arising under or relating to this Agreement, without giving
effect to the conflict of laws principles thereof. All disputes arising under or
relating to this Agreement shall be resolved exclusively in the appropriate
court in Santa Clara, California, and it is explicitly agreed that no other
court shall have such jurisdiction. This Agreement will not be governed by the
United Nations Convention on Contracts for the International Sales of Goods, the
application of which is expressly excluded. For users outside North America the
laws of the State of Israel shall govern all issues arising under or relating to
this Agreement, without giving effect to the conflict of laws principles
thereof. All disputes
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arising under or relating to this Agreement shall be resolved exclusively in the
appropriate court in Tel-Aviv, Israel, and it is explicitly agreed that no other
court shall have such jurisdiction. This Agreement will not be governed by the
United Nations Convention on Contracts for the International Sales of Goods, the
application of which is expressly excluded.
7.3. This Product is sold solely for use in the NAFTA countries and Europe.
The Product is subject to export control laws of the United States and Israel.
By accepting this Agreement, the Licensee is agreeing to the foregoing and
warrant that the Licensee is not: (i) located in, are under the control of, or a
national or resident of any country subject to U.S. embargo or (ii) on the U.S.
Treasury Department's list of Specially Designated Nationals or the US Commerce
Department's Table of Deny Orders. The Licensee agrees that the Product will not
be shipped, transferred, or exported into any country or used in any manner
prohibited by the law.
7.4. If the Licensee is an agency, department, or other entity of the United
States Government ("GOVERNMENT"), the Licensee's use, duplication, reproduction,
release, modification, disclosure or transfer of the Product, or of any related
documentation of any kind, including technical data, is restricted in accordance
with Federal Acquisition Regulation ("FAR") 12.212 for civilian agencies and
Defense Federal Acquisition Regulation Supplement ("DFARS") 227.7202 for
military agencies. The Product is commercial. The use of the Product by any
Government agency, department, or other entity of the Government is further
restricted in accordance with the terms of this Agreement, or any modification
hereto. Contractor/manufacturer in North America is XACCT Technologies Inc.
(under license) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and
outside North America: XACCT Technologies (1997) Ltd., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇.
7.5. Should the Licensee have any questions concerning this Agreement
including issues of interoperability or questions concerning XACCT's licensors
contact XACCT the appropriate XACCT entity at the address set forth in the
preceding paragraph.
7.6. The Licensee shall not disclose results of benchmark tests of the
Product or any part therein to any third party without XACCT's prior written
consent.
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SCHEDULE A
Category A Software includes all portions of the Product described in
this SCHEDULE A. Category A Software is governed by the main body of this
Agreement and the additional terms set forth in this SCHEDULE A. To the extent
any additional terms set forth in this SCHEDULE A conflict with the provisions
of the main body of this Agreement, the terms in SCHEDULE A shall apply with
respect to the corresponding Category A Software. Reference to Agreement in any
of the Attachments to this Schedule shall refer to the specific software
agreement in that Attachment.
The portion of the Product provided by Sun Microsystems, Inc. ("JAVA
RUNTIME PORTION" as described below) is governed by the main body of this
Agreement and the additional terms set forth in ATTACHMENT 1 to this SCHEDULE A.
Java Runtime Portion:
JAVA((TM)) RUNTIME ENVIRONMENT VERSION 1.2.2 FOR WINDOWS NT((TM))
AND FOR JAVA((TM)) RUNTIME ENVIRONMENT VERSION 1.2.2 FOR
THE SOLARIS OS((TM))
The portion of the Product provided by Sun Microsystems, Inc. ("Java
Hotspot" as described below) is governed by the main body of this Agreement and
the additional terms set forth in ATTACHMENT 2 to this SCHEDULE A. For purposes
of ATTACHMENT 2 to this SCHEDULE A, "Licensee" means You and "Software" means
the Java Hotspot Portion.
Java Hotspot Portion:
JAVA((TM)) HOTSPOT 1.0.1
The portion of the Product provided by Sun Microsystems, Inc. ("JAVA
NAMING PORTION" as described below) is governed by the main body of this
Agreement and the additional terms set forth in ATTACHMENT 3 to this SCHEDULE A.
For purposes of ATTACHMENT 3 to this SCHEDULE A, "Licensee" means You and
"Software" means the Java Naming Portion.
Java Naming Portion:
JAVA((TM)) NAMING AND DIRECTORY INTERFACE((TM)) VERSION 1.1
The portion of the Product provided by WebLogic, Inc. ("WEBLOGIC
PORTION" as described below) is governed by the main body of this Agreement and
the additional terms set forth in ATTACHMENT 4 to this SCHEDULE A. For purposes
of ATTACHMENT 4 to this SCHEDULE A, "Licensee" means You and "Software" means
the Java Naming Portion.
WebLogic Portion:
FAST FORWARD JDBC DRIVERS - BASE (5 CONNECTIONS) FOR MS MSQL
SERVER, INFORMIX AND SYBASE
The portion of the Product licensed by XACCT through the Netscape
Public License ("PUBLIC PORTION" as described below) is governed by the main
body of this Agreement and the additional terms set forth in ATTACHMENT 5 to
this SCHEDULE A. For purposes of ATTACHMENT 5 to this SCHEDULE A, "Licensee"
means You and "Software" means the Java Naming Portion.
Public Portion:
EXECUTABLE CODE FROM THE MOZILLA SOURCE CODE
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ATTACHMENT 1 TO SCHEDULE A
SPECIFIC TERMS FOR JAVA RUNTIME PORTION OF THE PRODUCT FOR JAVA((TM))
RUNTIME ENVIRONMENT VERSION 1.2.2 FOR WINDOWS NT AND FOR JAVA((TM))
RUNTIME ENVIRONMENT VERSION 1.2.2 FOR THE SOLARIS OS
1. RESTRICTIONS Software is confidential and copyrighted. Title to Software and
all associated intellectual property rights is retained by Sun and/or its
licensors. Except as specifically authorized in any Supplemental License Terms,
you may not make copies of Software, other than a single copy of Software for
archival purposes. Unless enforcement is prohibited by applicable law, you may
not modify, decompile, reverse engineer Software. You acknowledge that Software
is not designed or licensed for use in on-line control of aircraft, air traffic,
aircraft navigation or aircraft communications; or in the design, construction,
operation or maintenance of any nuclear facility. SUN DISCLAIMS ANY EXPRESS OR
IMPLIED WARRANTY OF FITNESS FOR SUCH USES. You warrant that you will not use
Software for these purposes. 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.
No right, title or interest in or to any trademark, service ▇▇▇▇, logo or trade
name of Sun or its licensors is granted under this Agreement.
2. LIMITED WARRANTY. Sun warrants to you that for a period of ninety (90) days
from the date of purchase, as evidenced by a copy of the receipt, the media on
which Software is furnished (if any) will be free of defects in materials and
workmanship under normal use. Except for the foregoing, Software is provided "AS
IS". Your exclusive remedy and Sun's entire liability under this limited
warranty will be at Sun's option to replace Software media or refund the fee
paid for Software.
3. DISCLAIMER OF WARRANTY. UNLESS SPECIFIED IN THIS AGREEMENT, ALL EXPRESS OR
IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT, ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT THESE DISCLAIMERS
ARE HELD TO BE LEGALLY INVALID.
4. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT
WILL SUN OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR
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, EVEN IF SUN HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. In no event will Sun's liability to you, whether in contract, tort
(including negligence), or otherwise, exceed the amount paid by you for Software
under this Agreement. The foregoing limitations will apply even if the above
stated warranty fails of its essential purpose.
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4. Export Regulations. All Software and technical data delivered 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
delivery to you.
5(a). U.S. Government Restricted Rights for the Java((TM)) Runtime Environment
Version 1.2.2 For Windows NT. Use, duplication, or disclosure by the U.S.
Government is subject to restrictions set forth in this Agreement and as
provided in DFARS 227.7202-1 (a) and 227.7202-3(a) (1995), DFARS 252.227-7013
(c)(1)(ii)(Oct 1988), FAR 12.212 (a) (1995), FAR 52.227-19 (June 1987), or FAR
52.227-14(ALT III) (June 1987), as applicable.
5(b). U.S. Government Rights for the Solaris OS If Software 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 will be
only as set forth in this Agreement; this is in accordance with 48 CFR 227.7201
through 227.7202-4 (for Department of Defense (DOD) acquisitions) and with 48
CFR 2.101 and 12.212 (for non-DOD acquisitions).
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. Integration. The full versions of the Sun end-user license agreements
relating to the Java((TM)) Runtime Environment Version 1.2.2 For Windows
NT((TM)) and to the Java((TM)) Runtime Environment Version 1.2.2 for the Solaris
OS((TM)) are the entire agreements between you and Sun relating to its subject
matter. It supersedes all prior or contemporaneous oral or 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 the Sun end-user license agreements will
be binding, unless in writing and signed by an authorized representative of each
party.
This attachment is an abridged version of the full end-user license agreements
for Java((TM)) Runtime Environment Version 1.2.2 for Windows NT((TM)) and for
the Java((TM)) Runtime Environment Version 1.2.2 for the Solaris OS((TM)). For
inquiries relating to the original text of the Sun licenses please contact: Sun
Microsystems, Inc. ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. In the
event a dispute between the terms of the official unabridged end-user license
agreements and this abridged version the original text of the unabridged version
shall govern.
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ATTACHMENT 2 TO SCHEDULE A
SPECIFIC TERMS FOR JAVA HOTSPOT 1.0.1 PORTION OF THE PRODUCT
1. RESTRICTIONS Software is confidential and copyrighted. Title to Software and
all associated intellectual property rights is retained by Sun and/or its
licensors. Except as specifically authorized in any Supplemental License Terms,
you may not make copies of Software, other than a single copy of Software for
archival purposes. Unless enforcement is prohibited by applicable law, you may
not modify, decompile, reverse engineer Software. You acknowledge that Software
is not designed or licensed for use in on-line control of aircraft, air traffic,
aircraft navigation or aircraft communications; or in the design, construction,
operation or maintenance of any nuclear facility. Sun disclaims any express or
implied warranty of fitness for such uses. No right, title or interest in or to
any trademark, service ▇▇▇▇, logo or trade name of Sun or its licensors is
granted under this Agreement.
3. LIMITED WARRANTY. Sun warrants to you that for a period of ninety (90) days
from the date of purchase, as evidenced by a copy of the receipt, the media on
which Software is furnished (if any) will be free of defects in materials and
workmanship under normal use. Except for the foregoing, Software is provided "AS
IS". Your exclusive remedy and Sun's entire liability under this limited
warranty will be at Sun's option to replace Software media or refund the fee
paid for Software.
4. DISCLAIMER OF WARRANTY. UNLESS SPECIFIED IN THIS AGREEMENT, ALL EXPRESS OR
IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT, ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT THESE DISCLAIMERS
ARE HELD TO BE LEGALLY INVALID.
5. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT
WILL SUN OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR
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, EVEN IF SUN HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. In no event will Sun's liability to you, whether in contract, tort
(including negligence), or otherwise, exceed the amount paid by you for Software
under this Agreement. The foregoing limitations will apply even if the above
stated warranty fails of its essential purpose.
7. Export Regulations. All Software and technical data delivered 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
delivery to you.
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8. U.S. Government Rights. If Software 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 will be only as set
forth in this Agreement; this is in accordance with 48 CFR 227.7201 through
227.7202-4 (for Department of Defense (DOD) acquisitions) and with 48 CFR 2.101
and 12.212 (for non-DOD acquisitions).
9. 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.
10. 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.
11. Integration. The full version of the Sun end-user license agreement relating
to the Java((TM)) Hotspot 1.0.1 is the entire agreement between you and Sun
relating to its subject matter. It supersedes all prior or contemporaneous oral
or 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 the Sun
end-user license agreement will be binding, unless in writing and signed by an
authorized representative of each party.
This attachment is an abridged version of the full end-user license agreement
for Java((TM)) Hotspot 1.0.1. For inquiries relating to the original text of the
Sun licenses please contact: Sun Microsystems, Inc. ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. In the event a dispute between the terms of the official
unabridged end-user license agreements and this abridged version the original
text of the unabridged version shall govern.
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ATTACHMENT 3 TO SCHEDULE A
SPECIFIC TERMS FOR JAVA NAMING PORTION OF THE PRODUCT
1. RESTRICTIONS
(A) JAVA PLATFORM INTERFACE
Licensee may not modify the Java Platform Interface ("JPI", identified
as classes contained within the "java" package or any subpackage of the
"java" package), by creating additional classes within the JPI or
otherwise causing the addition to or modification of the classes in the
JPI. In the event that Licensee creates any Java-related API and
distributes such API to others for applet or application development,
Licensee must promptly publish broadly, an accurate specification for
such API for free use by all developers of Java-based software.
(B) LICENSE RESTRICTIONS
The Software is licensed to Licensee only under the terms of this
Agreement, and Sun reserves all rights not expressly granted to
Licensee. Licensee may not use, copy, modify, or transfer the Software,
or any copy thereof, except as expressly provided for in this
Agreement. Except as otherwise provided by law for purposes of
decompilation of the Software solely for inter-operability, Licensee
may not reverse engineer, disassemble, decompile, or translate the
Software, or otherwise attempt to derive the source code of the
Software. License may not rent, lease, loan, sell, or distribute the
Software, or any part of the Software. No right, title, or interest in
or to any trademarks, service marks, or trade names of Sun or Sun's
licensors is granted hereunder.
2. NO WARRANTY
THE SOFTWARE IS PROVIDED TO LICENSEE "AS IS". ALL EXPRESS OR IMPLIED
CONDITIONS, REPRESENTATIONS, AND WARRANTIES, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A
PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE DISCLAIMED, EXCEPT TO THE
EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID.
3. LIMITATION OF DAMAGES
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, SUN'S AGGREGATE
LIABILITY TO LICENSEE OR TO ANY THIRD PARTY FOR CLAIMS RELATING TO THIS
AGREEMENT, WHETHER FOR BREACH OR IN TORT, WILL BE LIMITED TO THE FEES
PAID BY LICENSEE FOR SOFTWARE WHICH IS THE SUBJECT MATTER OF THE
CLAIMS. IN NO EVENT WILL SUN BE LIABLE FOR ANY INDIRECT, PUNITIVE,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGE IN
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CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING LOSS OF
BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE),
HOWEVER IT ARISES, WHETHER FOR BREACH OR IN TORT, EVEN IF SUN HAS BEEN
PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. LIABILITY FOR
DAMAGES WILL BE LIMITED AND EXCLUDED, EVEN IF ANY EXCLUSIVE REMEDY
PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
4. GOVERNMENT USER
Rights in Data: If procured by, or provided to, the U.S. Government,
use, duplication, or disclosure of technical data is subject to
restrictions as set forth in FAR 52.227-14(g)(2), Rights in
Data-General (June 1987); and for computer software and computer
software documentation, FAR ▇▇-▇▇▇-▇▇, Commercial Computer Software-
Restricted Rights (June 1987). However, if under DOD, use, duplication,
or disclosure of technical data is subject to DFARS 252.227-7015(b),
Technical Data-Commercial Items (June 1995); and for computer software
and computer software documentation, as specified in the license under
which the computer software was procured pursuant to DFARS
227.7202-3(a). Licensee shall not provide Software nor technical data
to any third party, including the U.S. Government, unless such third
party accepts the same restrictions. Licensee is responsible for
ensuring that proper notice is given to all such third parties and that
the Software and technical data are properly marked.
5. EXPORT LAW
Licensee acknowledges and agrees that this Software and/or technology
is subject to the U.S. Export Administration Laws and Regulations.
Diversion of such Software and/or technology contrary to U.S. law is
prohibited. Licensee agrees that none of this Software and/or
technology, nor any direct product therefrom, is being or will be
acquired for, shipped, transferred, or reexported, directly or
indirectly, to proscribed or embargoed countries or their nationals,
nor be used for nuclear activities, chemical biological weapons, or
missile projects unless authorized by the U.S. Government. Proscribed
countries are set forth in the U.S. Export Administration Regulations.
Countries subject to U.S. embargo are: Cuba, Iran, Iraq, Libya, North
Korea, Syria, and the Sudan. This list is subject to change without
further notice from Sun, and Licensee must comply with the list as it
exists in fact. Licensee certifies that it is not on the U.S.
Department of Commerce's Denied Persons List or affiliated lists or on
the U.S. Department of Treasury's Specially Designated Nationals List.
Licensee agrees to comply strictly with all U.S. export laws and
assumes sole responsibility for obtaining licenses to export or
reexport as may be required.
Licensee is responsible for complying with any applicable local laws
and regulations, including but not limited to, the export and import
laws and regulations of other countries.
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ATTACHMENT 4 TO SCHEDULE A
SPECIFIC TERMS FOR WEBLOGIC PORTION OF THE PRODUCT
1) The Licensee may not under any circumstances use the WebLogic Portion or
any of its API's in any manner except indirectly in connection with the use of
the XACCT application portion of the Product, and the Licensee may not run any
third party software applications on the WebLogic Portion or any of its API's,
without first purchasing a license for such use from WebLogic, Inc., except only
to the extent that such activity is permitted by applicable law not withstanding
this limitation.
2) The Licensee may not under any circumstances attempt, or knowingly
permit or encourage others to attempt to decompile, decipher, disassemble,
reverse engineer or otherwise decrypt or discover the source code of all or any
portion of the Product, including the WebLogic Portion.
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ATTACHMENT 5 TO SCHEDULE A
SPECIFIC TERMS FOR PUBLIC PORTION OF THE PRODUCT
The Public Portion is licensed by XACCT through the Netscape Public
License Version 1.1. The Licensee may obtain a machine-readable copy of the
source code for the Public Code under a version of the Netscape Public License
without charge. Please contact XACCT for the URL location such source code and
license is available.
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