IMPORTANT - READ CAREFULLY. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND BLUE SKY SOFTWARE CORPORATION FOR THE SOFTWARE PRODUCT YOU ARE INSTALLING, WHICH INCLUDES COMPUTER SOFTWARE AND RELATED DOCUMENTATION. BY INSTALLING OR OTHERWISE USING THE SOFTWARE, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY, WITHIN THIRTY (30) DAYS OF PURCHASE, RETURN THE UNUSED SOFTWARE PRODUCT TO THE LOCATION WHERE YOU OBTAINED IT FOR A REFUND, SUBJECT TO A RESTOCKING FEE.
Blue Sky Software Corporation, a Delaware corporation whose address is 7777 Fay Ave., Suite 201, La Jolla, California 92037, USA ("Blue Sky") hereby grants to you a non-exclusive license (a "License") to use the software product identified above (the "Software") and the accompanying printed materials and User Manual (the "Documentation") on the terms set forth below.
1. GRANT OF LICENSE. This License grants you the following rights.
* Software. Except as set forth below, you may use the Software on any single computer. You may also install a copy for your exclusive use on either a home or portable computer.
* Storage/Network Use. You may store or install a copy of the Software on a storage device, such as a network server, used only to install or run the Software over an internal network; however, you must acquire and dedicate a license for each individual who will use the Software. A License for the Software may not be shared or used concurrently on different computers. If the Software is installed on a network server or other system that physically allows shared access to the Software, you agree to provide technical or procedural methods to prevent use of the Software by individuals not specifically licensed to use the Software pursuant to this Agreement.
* License Pack. If you have acquired this Agreement in a Blue Sky Software License Pack, you may make the number of additional copies of the Software authorized on the printed copy of this Agreement and you may use each copy in the manner specified above. You are also entitled to make a corresponding number of secondary copies for home and portable computer use as specified above.
* Transfer. You may transfer the Software and Documentation to a single recipient on a permanent basis provided you retain no copies of the Software or Documentation (including backup or archival copies) and the recipient agrees to the terms and conditions of this Agreement. If the Software is an upgrade, any transfer must include all prior versions of the Software and Documentation.
* You may freely distribute copies of applications and source code generated with the Software.
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
* Reverse Engineering. You may not modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restrictions) or create derivative works based on the Software, or any portion thereof.
* Copying. You may not copy the Software or Documentation except as specifically provided by this Agreement.
* Separation of Components. The Software is licensed as a single product. You may not separate the Software's component parts for use on more than one computer.
* Rental. You may not rent or lease the Software or Documentation.
* Proprietary Notices. You may not remove any proprietary notices, labels or marks on the Software or Documentation.
* Upgrades. If the Software is an upgrade from another product, this upgrade License supersedes any previous License. You may use the Software only in conjunction with the upgraded product, or you must destroy the upgraded product.
* Use of Blue Sky's Name. You may not use Blue Sky's or Blue Sky's suppliers' name, logos, or trademarks in any manner including, without limitation, in your advertising or marketing materials, except as is necessary to affix the appropriate copyright notices as required herein.
3. TITLE.
Title, ownership rights, and intellectual property rights in and to the Software and Documentation shall remain in Blue Sky and/or its suppliers. The Software and the Documentation is protected by the copyright laws of the United States and international copyright treaties.
4. REDISTRIBUTABLES.
You are hereby granted a non-exclusive, royalty-free license to distribute the Blue Sky Redistributables, identified in the REDISTRB.TXT file on the Software CD-ROM or Floppy disk 1, provided, that you (a) do not distribute the Redistributables as a stand-alone product, provided, however, that you may distribute updates of the Redistributables separately for purposes of updating an existing end user of your previously-distributed product that uses the Redistributables; (b) except as required herein, do not use Blue Sky's name, logo, or trademarks to market any product that incorporates the Redistributables; (c) include Blue Sky's copyright notice for the Redistributables (Portions copyright (c) Blue Sky Software Corporation. All rights reserved.) on the product CD, disk label, the title page of the documentation, and/or the About box for any software application product that incorporates the Redistributables; (d) agree to indemnify, hold harmless, and defend Blue Sky from and against any claims or lawsuits, including attorneys fees, that arise or result from the use or distribution of any software application product that incorporates the Redistributables; and (e) do not incorporate the Redistributables into any software product which would compete with the Software.
You are hereby granted a non-exclusive, royalty-free license to distribute the MS-Redistributables identified in the REDISTRB.TXT file on the Software CD-ROM or Floppy disk 1, provided, that you (a) do not distribute the MS-Redistributables as a stand-alone product, provided, however, that you may distribute updates of the MS-Redistributables separately for purposes of updating an existing end user of your previously-distributed product that uses the Redistributables;(b) except as required herein, do not use Microsoft's name, logo, or trademarks to market any Help system that incorporates the MS-Redistributables; (c) include the following copyright notice for the MS-Redistributables (Portions copyright (c) Microsoft Corporation. All rights reserved.) on the product CD, disk label, the title page of the documentation, and/or the About box for any software application product that incorporates the MS-Redistributables; (d) agree to indemnify, hold harmless, and defend Microsoft from and against any claims or lawsuits, including attorneys fees, that arise or result from the use or distribution of any Help system or software product that incorporates the MS-Redistributables;
(e) do not incorporate the MS-Redistributables into any software product which would compete with the Software, and (f) if Microsoft makes a new release of the MS-Redistributables (other than an Update release), use all reasonable efforts to cease distribution of the older version and commence distribution of the new release. You may continue to distribute existing inventory that contains the older release for up to 3 months following such new release.
Distribution of any Software code, other than the Redistributables and MS-Redistributables, is specifically prohibited.
5. TERMINATION.
The License is in effect until terminated. The License will terminate automatically if you fail to comply with the limitations described herein. On termination, you must destroy all copies of the Software and Documentation.
6. EXPORT CONTROLS.
This Software is subject to the export control laws of the United States. You may not export or re-export the Software without the appropriate United States and foreign government licenses. You shall otherwise comply with all applicable export control laws and shall defend, indemnify and hold Company and all Company suppliers harmless from any claims arising out of your violation of such export control laws.
7. MISCELLANEOUS.
This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. This Agreement may be amended only in writing executed by both parties. THE ACCEPTANCE OF ANY PURCHASE ORDER PLACED BY YOU IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS SET FORTH HEREIN, AND NOT THOSE CONTAINED IN YOUR PURCHASE ORDER. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the remainder of this Agreement shall nonetheless remain in full force and effect. This Agreement shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed within California, except as governed by Federal law. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
8. U.S. GOVERNMENT END-USERS.
The Software and Documentation is a "commercial item," as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (SEPT 1995), and is provided to the U.S. Government only as a commercial end item. Government end users acquire the Software and Documentation under the following terms: (i) for acquisition by or on behalf of civilian agencies, consistent with the terms set forth in 48 C.F.R. 12.212 (SEPT 1995); or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the terms set forth in 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995).
9. LIMITED WARRANTY.
Blue Sky warrants that the media containing the Software, if provided by Blue Sky, is free from defects in material and workmanship and will so remain for ninety (90) days from the date you acquired the Software. Blue Sky's sole liability, and your sole remedy, for any breach of this warranty shall be, in Blue Sky's sole discretion: (i) to replace your defective media; or (ii) if the above remedy is impracticable, to refund the License fee you paid for the Software. Replaced Software and Documentation shall be covered by this limited warranty for the period remaining under the warranty that covered the original Software, or if longer, for thirty (30) days after the date of shipment to you of the replaced Software. Only if you inform Blue Sky of your problem with the Software during the applicable warranty period and provide evidence of the date you acquired the Software will Blue Sky be obligated to honor this warranty. Blue Sky will use reasonable commercial efforts to replace or refund pursuant to the foregoing warranty within thirty (30) days of being so notified. THIS IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY BLUE SKY. BLUE SKY MAKES NO OTHER WARRANTY, REPRESENTATION, OR CONDITION, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. THE DURATION OF IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE, IS LIMITED TO THE ABOVE LIMITED WARRANTY PERIOD; SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY OR CONDITION LASTS, SO LIMITATIONS MAY NOT APPLY TO YOU. NO BLUE SKY AGENT, OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY. If any modifications are made to the Software by you during the warranty period; if the media is subjected to accident, abuse, or improper use; or if you violate the terms of this Agreement, then this warranty shall immediately be terminated. This warranty shall not apply if the Software is used on or in conjunction with hardware or software other than the unmodified version of hardware and software with which the Software was designed to be used as described in the Documentation.
THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION.
10. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL BLUE SKY OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, OR FOR ANY DAMAGES IN EXCESS OF BLUE SKY'S LIST PRICE FOR A LICENSE TO THE SOFTWARE AND DOCUMENTATION, EVEN IF BLUE SKY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
