THIS IS A LICENSE AGREEMENT BETWEEN SYBERGEN NETWORKS, INC. ("SYBERGEN") AND THE INDIVIDUAL OR ENTITY ("LICENSEE") WHO HAS PURCHASED THE LICENSE TO USE THE ACCOMPANYING Sybergen Secure Desktop SOFTWARE AND DOCUMENTATION (THE "SOFTWARE"). SYBERGEN IS WILLING TO GRANT LICENSEE THE FOLLOWING LICENSE TO USE THE SOFTWARE ACCORDING TO THIS AGREEMENT ON THE CONDITION THAT LICENSEE ACCEPTS ALL TERMS IN THIS AGREEMENT.
LICENSE. Subject to the terms and conditions of this Agreement, Sybergen grants to Licensee a nontransferable, nonexclusive, fully paid-up license (without the right to grant sublicenses) to use the Software on ONE computer in ONE network.
RESTRICTIONS. Licensee agrees that Licensee shall not: (a) use the Software for any purpose not expressly authorized by this Agreement in the accompanying documentation in any manner designed to access the functionality of any portion of the Software other than as permitted by the Software's permitted configuration; (b) decompile, reverse engineer or otherwise attempt to discover or derive source code from the object code version of the Software or the underlying trade secrets; (c) copy (except for one (1) copy for backup purposes only, and the copy that resides on the hard drive of each computer, as authorized under this Agreement), modify or create derivative works of the Software; (d) incorporate the Software into other software; (e) remove or alter any trademark, tradename, logo, patent or copyright notice or marking on the Software, or add any other notices or markings to the Software; or (f) permit or cause anyone else to do any of the foregoing.
OWNERSHIP. The Software is a proprietary product of Sybergen and Sybergen's suppliers. Sybergen retains ownership of all patents, copyrights, trademarks, trade secrets and other proprietary rights relating to or residing in the Software. The Software is licensed, not sold, to Licensee for use only under the terms of this Agreement. Except as provided in SECTION 1 ("LICENSE"), Licensee shall have no right, title or interest in the Software.
DISCLAIMER OF WARRANTIES. THE SOFTWARE IS PROVIDED "AS IS," "WITH ALL FAULTS," WITHOUT WARRANTY OF ANY KIND. SYBERGEN AND SYBERGEN'S DISTRIBUTOR DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE DISCLAIMER OF IMPLIED WARANTIES ABOVE MAY NOT APPLY TO LICENSEE, IN WHICH CASE THE DURATION OF ANY SUCH IMPLIED WARRANTIES IS LIMITED TO sixty (60) DAYS FROM THE DATE LICENSEE FIRST INSTALLED THE SOFTWARE ON LICENSEE'S COMPUTER; PROVIDED, HOWEVER, THAT LICENSEE'S SOLE REMEDY SHALL IN ANY CASE BE THAT SYBERGEN WILL, AT ITS OPTION, REPAIR OR REPLACE LICENSEE'S COPY OF THE SOFTWARE, OR TERMINATE THIS LICENSE AGREEMENT AND REFUND AMOUNTS ALREADY PAID THEREFOR BY LICENSEE. Some States, Provinces, or other jurisdictions do not allow for exclusions of implied warranties or limitations on how long an implied warranty lasts, so the above exclusion or limitation may not apply to Licensee. Licensee may have other rights which vary from State to State, Province to Province, or in other jurisdictions.
LIMITATION OF LIABILITY. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, TO THE EXTENT PERMITTED BY THE LAW OF THE JURSIDCTION IN WHICH LICENSEE OBTAINED THIS LICENSE, SYBERGEN AND SYBERGEN'S DISTRIBUTOR WILL NOT BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY CHARACTER, INCLUDING BUT NOT LIMITED TO DAMAGES FOR COMPUTER MALFUNCTION, LOSS OF INFORMATION, LOST PROFITS AND BUSINESS INTERRUPTION, AND THE COST TO OBTAIN SUBSTITUTE SOFTWARE, ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE USE OF (OR INABILITY TO USE) THE SOFTWARE HOWEVER CAUSED AND WHETHER ARISING UNDER A THEORY OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SYBERGEN OR SYBERGEN'S DISTRIBUTOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SYBERGEN'S OR SYBERGEN'S DISTRIBUTOR'S TOTAL LIABILITY TO LICENSEE RELATING TO THIS AGREEMENT OR THE USE (OR INABILITY TO USE) THE SOFTWARE EXCEED THE AMOUNT PAID BY LICENSEE TO SYBERGEN OR SYBERGEN'S DISTRIBUTOR FOR THIS LICENSE. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO LICENSEE. SYBERGEN AND SYBERGEN'S DISTRIBUTOR SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THE SOFTWARE. SYBERGEN AND SYBERGEN'S DISTRIBUTOR WOULD NOT PROVIDE THE SOFTWARE TO LICENSEE IF LICENSEE DID NOT AGREE TO THE "DISCLAIMER OF WARRANTIES" AND "LIMITATION OF LIABILITY" PROVISIONS IN THIS AGREEMENT.
U.S. GOVERNMENT END USERS. The Software is a "commercial item," as that term is defined at 48 CFR 2.101 (Oct 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 CFR 12.212 (Sep 1995) and is provided to the U.S. Government only as a commercial end item. Consistent with 48 CFR 12.212 and 48 CFR 227.7202-1 through 227.7202-4 (Jun 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein.
EXPORTS. Licensee acknowledges and agrees that the Software is certified for use only in the United States and Canada, and that in no event shall Licensee export the Software, including the documentation or any information regarding either, outside the United States without the prior written permission of Sybergen. Licensee will indemnify and hold Sybergen harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney's fees) arising from or relating to any breach by Licensee of its obligations under this paragraph. Licensee's obligations under this paragraph will survive the expiration or termination of this Agreement.
TERMINATION. This Agreement and Licensee's license to the Software will terminate automatically without notice from Sybergen if Licensee fails to comply with any terms of this License Agreement.
1. GENERAL. This Agreement will be governed by the laws of the State of California, as those laws are applied to contracts entered into and performed entirely in California by California residents. The State and Federal Courts located in San Francisco County, California, shall have sole jurisdiction over any disputes arising hereunder, and the parties hereby submit to the jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed. If any provision of this Agreement is held to be unenforceable, that provision will be removed and the remaining provisions will remain in full force. If any provision of this Agreement is inconsistent with, or cannot be fully enforced under the laws of any jurisdiction, such provision will be construed as limited to the extent necessary to be consistent with and fully enforceable under such laws. This Agreement is the final, complete and exclusive statement of the agreement between Sybergen and Licensee which supersedes any proposal or prior agreement, oral or written, and any other communication between Sybergen and Licensee in relation to the subject matter of this Agreement.
This Agreement may not be assigned or modified except in writing and signed by both parties. Any purported assignment or modification in derogation of the foregoing shall be void.
THE SOFTWARE AND ACCOMPANYING MATERIALS ARE PROTECTED BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.
⌐ COPYRIGHT 2000, Sybergen Networks, Inc. ALL RIGHTS RESERVED
