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LICENSE.TXT
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1993-08-10
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LICENSE AGREEMENT FOR ZIFF-DAVIS' NETBENCH(TM) 2.1
READ THIS AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE EMBODIED
IN THE NETBENCH(TM) 2.1 DISKETTE (OR, IF DOWNLOADED, IN THE
DOWNLOADED FILE(S)). Embodied in the NetBench 2.1 diskette
("diskette") (or, if downloaded, in the downloaded file(s)) is
the NetBench 2.1 computer program and related documentation (the
"Software"). Ziff-Davis Publishing Company, L.P., having a place
of business at One Park Avenue, New York, New York 10016 ("Ziff")
is the licensor under this Agreement and you are the licensee.
By using the Software, in whole or in part, you agree to be bound
by the terms of this Agreement. If you do not agree to the terms
of this Agreement, promptly return the Software (or, if
downloaded, delete the Software) to the Ziff-Davis Benchmark
Operation at One Copley Parkway, Suite 510, Morrisville, North
Carolina 27560. Title to the Software and all copyrights, trade
secrets and other proprietary rights therein are owned by Ziff.
All rights therein, except those expressly granted to you in this
Agreement, are reserved by Ziff.
1. Limited License
This Agreement grants you only limited rights to use the
Software. Ziff grants you a non-exclusive, non-transferable
license to use the Software on a file server networked with
multiple PC computers for the sole purpose of conducting
benchmark tests to measure the performance of computer hardware
and operating system configurations. You have the right to make
a single copy of the Software for archival purposes and the right
to transfer a copy of the Software across a network only to the
PC computers attached to the network.
You may not publish or distribute benchmark test results obtained
by you from your use of the Software without prior written
permission from Ziff-Davis. For such permission, contact the
Ziff-Davis Benchmark Operation at the above address.
This Agreement and your rights hereunder shall automatically
terminate if you fail to comply with any provision of this
Agreement. Upon such termination, you agree to cease all use of
the Software, to delete the Software and to destroy all copies of
the diskette and other materials contained in this package in
your possession or under your control, or, if downloaded, to
destroy any and all copies of the Software in your possession or
under your control.
2. Additional Restrictions
A. You shall not (and shall not permit other persons or
entities to) rent, lease, sell, sublicense, assign, or otherwise
transfer the Software or this Agreement. Any attempt to do so
shall be void and of no effect.
B. You shall not (and shall not permit other persons or
entities to) reverse engineer, decompile, disassemble, merge,
modify, include in other software or translate the Software, or
use the Software for any commercial purposes, except for the
publication or distribution of test results with Ziff's prior
written permission, as provided above.
C. You shall not (and shall not permit other persons or
entities to) remove or obscure Ziff's copyright, trademark or
other proprietary notices or legends from any of the materials
contained in this package or downloaded.
3. Limited Warranty and Limited Liability
THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND,
EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE
IS ASSUMED BY YOU, AND ZIFF ASSUMES NO RESPONSIBILITY FOR THE
ACCURACY OR APPLICATION OF OR ERRORS OR OMISSIONS IN THE
SOFTWARE. IN NO EVENT SHALL ZIFF BE LIABLE FOR ANY DIRECT,
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING
OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF ZIFF HAS
BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. ZIFF
SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGES OR COSTS, ARISING OUT
OF, BUT NOT LIMITED TO, LOST PROFITS OR REVENUE, LOSS OF USE OF
THE SOFTWARE, LOSS OF DATA OR EQUIPMENT, THE COSTS OF RECOVERING
SOFTWARE, DATA OR EQUIPMENT, THE COST OF SUBSTITUTE SOFTWARE OR
DATA, CLAIMS BY THIRD PARTIES, OR OTHER SIMILAR COSTS.
THE ONLY WARRANTY MADE BY ZIFF IS THAT THE ORIGINAL PHYSICAL
MEDIA IN WHICH THE SOFTWARE IS EMBODIED AND WHICH IS DISTRIBUTED
BY ZIFF SHALL BE FREE OF DEFECTS IN MATERIALS AND WORKMANSHIP.
ZIFF'S ENTIRE LIABILITY AND THE USER'S EXCLUSIVE REMEDY SHALL BE
LIMITED TO THE REPLACEMENT OF THE ORIGINAL PHYSICAL MEDIA IF
DEFECTIVE. THE WARRANTIES AND REMEDIES SET FORTH HEREIN ARE
EXCLUSIVE AND IN LIEU OF ALL OTHERS, ORAL OR WRITTEN, EXPRESS OR
IMPLIED. NO ZIFF AGENT OR EMPLOYEE, OR THIRD PARTY, IS
AUTHORIZED TO MAKE ANY MODIFICATION OR ADDITION TO THIS WARRANTY.
SOME STATES DO NOT ALLOW EXCLUSION OR LIMITATION OF IMPLIED
WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES; SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY
NOT APPLY TO YOU.
4. U.S. Government Restricted Rights.
The Software is licensed subject to RESTRICTED RIGHTS. Use,
duplication or disclosure by the Government or any person or
entity acting on its behalf is subject to restrictions as set
forth in subdivision (c)(1)(ii) of the Rights in Technical Data
and Computer Software Clause at DFARS (48 CFR 252.227-7013) for
DoD contracts, in paragraphs (c)(1) and (2) of the Commercial
Computer Software-Restricted Rights clause in the FAR (48 CFR
52.227-19) for civilian agencies, on in other comparable agency
clauses. The contractor/manufacturer is the Ziff-Davis Benchmark
Operation, One Copley Parkway, Suite 510, Morrisville, North
Carolina 27560.
5. General Provisions
Nothing in this Agreement constitutes a waiver of Ziff's rights
under U.S copyright laws or any other Federal, state, local or
foreign law. You are responsible for installation, management,
and operation of the Software. This Agreement shall be
construed, interpreted and governed under New York law. If any
provision of this Agreement shall be held by a court of competent
jurisdiction to be illegal, invalid or unenforceable, the
remaining provisions shall remain in full force and effect.