IMPORTANT - READ CAREFULLY BEFORE USING THE ACCOMPANYING SOFTWARE YOU MAY USE THE ACCOMPANYING SOFTWARE (THE "PROGRAMS") ONLY IN ACCORDANCE WITH THIS LICENSE AGREEMENT. DELIVERY OF THIS SOFTWARE IS EXPRESSLY CONDITIONED ON YOUR AGREEING TO THIS LICENSE AGREEMENT. YOU INDICATE YOUR ACCEPTANCE OF THIS LICENSE AGREEMENT BY INSTALLING AND USING THE SOFTWARE. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT INSTALL OR USE THE SOFTWARE. SYBASE 30-DAY EVALUATION SOFTWARE LICENSE For Product Codename "Starbuck" (THIS IS A LICENSE AND NOT A SALE) 1. DEFINITIONS. A "Seat" is a specific identifiable unique accessor of information such as a terminal, PC, single user workstation or real time device. (Use of software or hardware which reduces the number of Seats directly accessing the Programs (sometimes called "multiplexing" or "pooling") does not reduce the number of Seats required to be licensed, but rather the number of licensed Seats must include the number of distinct inputs to the multiplexing software or hardware.). 2. PRERELEASE CODE. You understand that the Program is pre-release software that Sybase is providing solely for your evaluation and test purposes and which may not be at the level of performance and compatibility of the final, generally available version. Accordingly, you acknowledge the Program may not operate correctly and may be substantially modified prior to first commercial shipment. Sybase is not obligated to make this or any later version of the Programs commercially available. 3. LICENSE. You may use on a non-exclusive basis one copy of each of the enclosed Programs (and accompanying documentation) on one Seat but you may not use the Programs or applications developed with the Programs for commercial development purposes or in, or for development of, production systems. 4. NO DISTRIBUTION RIGHTS. You may not copy or distribute the Programs or applications developed using the Programs. 5. SUPPORT. This Agreement does not entitle you to any later versions of the Programs, which must be separately licensed, or to any technical support. 6. JAVA TECHNOLOGY. THE JAVA TECHNOLOGY THAT IS INCLUDED IN THE SOFTWARE PRODUCT IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE OR RESALE IN THE ON-LINE CONTROL OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE JAVA TECHNOLOGY OR THE SOFTWARE PRODUCT COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. 7. CONFIDENTIALITY. "Confidential Information", which includes the Program (including methods or concepts utilized therein) and all information identified by Sybase as proprietary or confidential, shall remain the sole property of Sybase or its suppliers and shall not be disclosed to any third party without the express written consent of Sybase (except solely for your internal business needs, to consultants bound by a written agreement with you to maintain the confidentiality of such Confidential Information in a manner consistent with this Agreement). Except with respect to the Program, items will not be deemed Confidential Information if (i) available to the public other than by breach of an agreement with Sybase; (ii) rightfully received from a third party not in breach of any obligation of confidentiality; (iii) independently developed by you without access to the Confidential Information; (iv) known to you at the time of disclosure; or (v) produced in compliance with applicable law or court order, provided Sybase is given reasonable notice of such law or order. A copyright notice on a Program does not, by itself, constitute evidence of publication or public disclosure. Results of benchmark or other performance tests run on the Programs shall not be disclosed to any third party without Sybase's prior written consent. GENERAL TERMS AND CONDITIONS 8. COPYRIGHT AND OWNERSHIP. The Programs are owned by Sybase, its affiliates or their suppliers and are protected by copyright laws and international treaty provisions. You acquire only the right to use the Programs and do not acquire any rights of ownership in the Programs. 9. COPY AND OTHER RESTRICTIONS. You may not copy the Programs except (a) to make a copy for backup or archival purposes, and (b) as specifically authorized in this Agreement. You may not modify, reverse engineer, decompile or disassemble the Programs (except to the extent applicable laws specifically prohibit such restriction and except as specifically permitted in the documentation). Transfer of a Program outside the country in which it was originally delivered to you is not permitted without Sybase's prior written consent and is subject to compliance with all applicable export restrictions. You may not use the Programs for timesharing, rental or service bureau purposes. You shall not remove any proprietary notices from the Programs, and you shall reproduce such notices on all permitted copies or extracts of the Programs. Upon reasonable notice to you, Sybase may audit the number of copies of the Programs licensed by you and your use of those Programs. 10. U.S. GOVERNMENT RESTRICTED RIGHTS. The Program and documentation thereof are Commercial Computer Software. Use, duplication and disclosure by the U.S. Government is subject to restrictions set forth in this license or in a written agreement specifying the Government's right to use the Program. All technical data is subject to limited rights as long as this Agreement is in effect. 11. TERMINATION. Either party may terminate this Agreement immediately if the other party breaches any of its obligations hereunder or for convenience by notifying the other party. This Agreement and the license granted herein shall automatically terminate thirty (30) days following your installation of the Program. Upon termination, you shall cease using the Program and destroy all copies of the Programs and documentation in any form. 12. LIMITED WARRANTY. THE SOFTWARE IS PROVIDED TO YOU "AS IS", WITHOUT ANY WARRANTY WHATSOEVER. SYBASE DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND WHETHER ARISING BY STATUTE OR IN LAW OR AS A RESULT OF A COURSE OF DEALING OR USAGE OF TRADE, WITH RESPECT TO THE PROGRAMS, DOCUMENTATION, SUPPORT OR OTHER SERVICES RELATED TO THE PROGRAMS. NO WARRANTY IS MADE REGARDING THE RESULTS OF ANY PROGRAM OR SERVICES OR THAT ALL ERRORS IN A PROGRAM WILL BE CORRECTED, OR THAT A PROGRAM'S FUNCTIONALITY WILL MEET YOUR REQUIREMENTS. YOU ACKNOWLEDGE YOUR RESPONSIBILITY TO (i) REGULARLY BACK UP DATA MAINTAINED ON ANY COMPUTER SYSTEM USING THE PROGRAMS AND (ii) ADEQUATELY TEST PRIOR TO DEPLOYMENT EACH PRODUCTION VERSION OF THE PROGRAMS IN A CONFIGURATION WHICH REASONABLY SIMULATES YOUR PLANNED PRODUCTION ENVIRONMENT. This limited warranty gives you specific legal rights. You may have other rights which vary among jurisdictions. Some jurisdictions do not allow limitations on implied warranties so the above limitations may not apply to you. 13. LIMITATION ON LIABILITY. NEITHER SYBASE, ITS AFFILIATES NOR ITS LICENSORS SHALL BE LIABLE FOR ANY LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SYBASE'S AND ITS AFFILIATES' TOTAL LIABILITY, IF ANY, ARISING OUT OF THIS AGREEMENT OR YOUR USE OF THE PROGRAM(S) SHALL NOT EXCEED THE LICENSE FEES PAID BY YOU FOR THE PROGRAM(S) GIVING RISE TO THE CLAIM. THE FOREGOING RESTRICTIONS, DISCLAIMERS AND LIMITATIONS SHALL REMAIN IN FORCE EVEN IN THE EVENT OF A FUNDAMENTAL BREACH BY SYBASE OR A BREACH BY SYBASE OF A CONDITION OR FUNDAMENTAL TERM HEREUNDER. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. 14. GOVERNING LAW; COMPLETE AGREEMENT. THIS AGREEMENT CONSTITUTES THE COMPLETE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE PROGRAMS AND IS GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, U.S.A. (EXCEPT FOR CONFLICT OF LAW PROVISIONS). It shall not be governed by the United Nations Convention on the International Sale of Goods, the application of which is expressly excluded. The terms of this Agreement supersede the terms of any purchase order or other document issued or signed by you to authorize your license of the Programs. If any provision of this Agreement is held to be unenforceable, such provision shall be limited, modified or severed as necessary to eliminate its unenforceability, and all other provisions shall remain unaffected. The failure or delay of either party to exercise any of its rights shall not be deemed a waiver of such rights and no waiver of any breach of this Agreement shall constitute a waiver of any other breach. If you have any questions concerning this Agreement, write to: Sybase, Inc. Contracts Department 561 Virginia Road Concord, Massachusetts USA 01742