solaris Operating System (x86 Platform) - Software Evaluation Agreement

SUN MICROSYSTEMS, INC. ("SUN") IS WILLING TO LICENSE THE SOLARIS(TM) 9 OPERATING ENVIRONMENT SOFTWARE TO LICENSEE ONLY UPON THE CONDITION THAT LICENSEE ACCEPTS ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT ("AGREEMENT"). PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY. BY DOWNLOADING OR INSTALLING THIS SOFTWARE, LICENSEE ACCEPTS THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. INDICATE ACCEPTANCE BY SELECTING THE "ACCEPT" BUTTON AT THE BOTTOM OF THIS AGREEMENT. IF LICENSEE IS NOT WILLING TO BE BOUND BY ALL THE TERMS, SELECT THE "DECLINE" BUTTON AT THE BOTTOM OF THE AGREEMENT AND THE DOWNLOAD OR INSTALL PROCESS WILL NOT CONTINUE.

"Licensed Software" means the Solaris 9 Operating Environment software in binary and/or source code forms, any other machine readable materials (including, but not limited to, libraries, source files, header files, and data files) and any user manuals, programming guides and other documentation provided to Licensee by Sun under this Agreement.

2.1 Source Code. Sun grants to Licensee, a non-exclusive, non-transferable, royalty-free and limited license to view the source code portions of the Licensed Software internally on Sun branded x86 computer systems for the purposes of evaluation only.
2.2 Binary Code. Sun grants to Licensee, a non-exclusive, non-transferable, royalty-free and limited license to use the binary code portions of the Licensed Software internally and installed only on Sun branded x86 computer systems.
2.3 No licenses are granted to Licensee for any other purposes, Licensee may not sell, rent, loan or otherwise encumber or transfer Licensed Software in whole or in part, to any third party.

3.1 Licensee may not duplicate Licensed Software other than for a single copy of Licensed Software for archival purposes only. Licensee agrees to reproduce any copyright and other proprietary right notices on any such copy.
3.2 Licensed Software is "Confidential Information". Licensee may not disclose or use Confidential Information, except for the purposes specified in this Agreement. Licensee will protect the Confidential Information with the same degree of care, as Licensee uses to protect its own Confidential Information.
3.3 No right, title, or interest in or to Licensed Software, any trademarks, service marks, or trade names of Sun or Sun's licensors is granted under this Agreement.

Sun is under no obligation to support Licensed Software or to provide Licensee with updates or error corrections (collectively "Software Updates"). If Sun, at its sole option, supplies Software Updates to Licensee, the Software Updates will be considered part of Licensed Software, and subject to the terms of this Agreement.

5.1 This Agreement will commence on the date on Software (the "Effective Date") and will expire ninety (90) days from the Effective Date, unless terminated earlier as provided below.
5.2 Either party may terminate this Agreement upon ten (10) days written notice to the other party. However, Sun may terminate this Agreement immediately should any Licensed Software become, or in Sun's opinion be likely to become, the subject of a claim of infringement of a patent, trade secret or copyright.
5.3 Sun may terminate this Agreement immediately should Licensee materially breach any of its provisions or take any action in derogation of Sun's rights to the Confidential Information licensed to Licensee.
5.4 Upon termination or expiration of this Agreement, unless Licensee has purchased a commercial right to use the Licensed Software prior to expiration of this Agreement, Licensee will immediately cease use of and destroy Licensed Software and any copies thereof and provide Sun a written statement certifying that Licensee has complied with the foregoing obligations.
5.5 Rights and obligations under this Agreement which by their nature should survive, will remain in effect after termination or expiration hereof.

6.1 Licensee acknowledges that Licensed Software is not designed or intended for use in the design, construction, operation or maintenance of any nuclear facility. Sun disclaims any express or implied warranty of fitness for such uses.
6.2 LICENSED SOFTWARE IS PROVIDED "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.

7.1 Licensee will hold Sun harmless from any claims based on Licensee's use of the Licensed Software for any purposes other than those of internal evaluation.
7.2 Licensee shall have the sole responsibility to protect adequately and backup Licensee's data and/or equipment used in connection with the Licensed Software. Licensee shall not claim against Sun for lost data, re-run time, inaccurate output, work delays or lost profits resulting from Licensee's use of the Licensed Software.
7.3 To the extent not prohibited by law, in no event will Sun be liable for any indirect, punitive, special, incidental or consequential damage in 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.

All Software and technical data delivered under this Agreement is subject to U.S. 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.

If this 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 the Software and accompanying documentation shall be only as set forth in this license; this is in accordance with 48 C.F.R. 227.7201 through 227.7202-4 (for Department of Defense (DoD) acquisitions) and with 48 C.F.R. 2.101 and 12.212 (for non-DoD acquisitions).

10.1 Any action related to this Agreement will be governed by California law and controlling U.S. federal law. The U.N. Convention for the International Sale of Goods and the choice of law rules of any jurisdiction will not apply.
10.2 Licensed Software and technical data delivered under this Agreement are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such laws and regulations and acknowledges that it has the responsibility to obtain such licenses to export, re-export or import as may be required after delivery to Licensee.
10.3 It is understood and agreed that, notwithstanding any other provision of this Agreement, Licensee's breach of the provisions of Section 6 of this Agreement will cause Sun irreparable damage for which recovery of money damages would be inadequate, and that Sun will therefore be entitled to seek timely injunctive relief to protect Sun's rights under this Agreement in addition to any and all remedies available at law.
10.4 Neither party may assign or otherwise transfer any of its rights or obligations under this Agreement, without the prior written consent of the other party, except that Sun may assign this Agreement to an affiliated company.
10.5 This Agreement is the parties' entire agreement relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, conditions, 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, including any Binary Code Licenses, Supplemental Terms, or other licenses contained within Licensed Software. No modification to this Agreement will be binding, unless in writing and signed by an authorized representative of each party.
(LFI#136270/Form ID#011801)