-- Ryan Shoemaker, Sun Microsystems, Inc. > Regards, ML >
SUN MICROSYSTEMS, INC. ("SUN") IS WILLING TO LICENSE THE JAVA ARCHITECTURE FOR XML BINDING ("JAXB") REFERENCE IMPLEMENTATION, VERSION 1.0, PRE-RELEASE 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.
1.0
DEFINITIONS
"Licensed Software" means the JAXB Reference
Implementation, Version 1.0, Pre-release Software in binary form, 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.
2.0
LIMITED LICENSE
Sun grants to Licensee, a non-exclusive,
non- transferable, royalty-free and limited license to use Licensed Software
internally for the purposes of evaluation only. No license is granted
to Licensee for any other purpose. Licensee may not sell, rent, loan
or otherwise encumber or transfer Licensed Software in whole or in part,
to any third party.
3.0
LICENSE RESTRICTIONS
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 Except as otherwise provided by law, Licensee
may not modify or create derivative works of the Licensed Software, or
reverse engineer, disassemble or decompile binary portions of the Licensed
Software, or otherwise attempt to derive the source code from such portions.
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.
3.4 Licensee shall have no right to use the
Licensed Software for productive or commercial use.
4.0
NO SUPPORT
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.
5.0
LICENSEE DUTIES
Licensee agrees to evaluate and test the Licensed
Software for use with Licensee's products and to provide feedback to Sun's
email address: jaxb-comments@sun.com. Sun shall treat any oral or
written feedback or results of Licensee's testing of the Licensed Software
which Licensee provides to Sun as Sun's Confidential Information (defined
in Section 7 below).
6.0
TERM AND TERMINATION OF AGREEMENT
6.1 This Agreement will commence on the date
on which Licensee receives Licensed Software (the "Effective Date") and
will expire ninety (90) days from the Effective Date, unless terminated
earlier as provided below.
6.2 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.
6.3 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.
6.4 Upon termination or 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.
6.5 Rights and obligations under this Agreement
which by their nature should survive, will remain in effect after termination
or expiration hereof.
7.0
CONFIDENTIAL INFORMATION
7.1 For purposes of this Agreement, "Confidential
Information" means: (i) business and technical information and any
source code or binary code which Sun discloses to Licensee related to Licensed
Software; and (ii) the terms, conditions, and existence of this Agreement.
Licensee may not disclose Confidential Information or use it except for
the purposes specified in this Agreement. Licensee will protect the
confidentiality of Confidential Information to the same degree of care,
but no less than reasonable care, as Licensee uses to protect its own Confidential
Information. Licensee's obligations regarding Confidential Information
will expire no less than five (5) years from the date of receipt of the
Confidential Information, except for Sun source code which will be protected
in perpetuity. Licensee agrees that Licensed Software contains trade
secrets of Sun.
7.2 Notwithstanding any provisions contained
in this Agreement concerning nondisclosure and non-use of the Confidential
Information, the nondisclosure obligations of Section 7.1 will not apply
to any portion of Confidential Information that a Licensee can demonstrate
in writing is: (i) now, or hereafter through no act or failure to
act on the part of Licensee becomes, generally known to the general public;
(ii) known to Licensee at the time of receiving the Confidential Information
without an obligation of confidentiality; (iii) hereafter rightfully furnished
to Licensee by a third party without restriction on disclosure; or (iv)
independently developed by Licensee without any use of the Confidential
Information.
7.3 Licensee must restrict access to Confidential
Information to its employees or contractors with a need for this access
to perform their employment or contractual obligations and who have agreed
in writing to be bound by a confidentiality obligation which incorporates
the protections and restrictions substantially as set forth in this Agreement.
8.0
DISCLAIMER OF WARRANTY
8.1 Licensee acknowledges that Licensed Software
may contain errors and is not designed or intended for use in the design,
construction, operation or maintenance of any nuclear facility ("High Risk
Activities"). Sun disclaims any express or implied warranty of fitness
for such uses. Licensee represents and warrants to Sun that it will
not use, distribute or license the Licensed Software for High Risk Activities.
8.2 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.
9.0
LIMITATION OF LIABILITY
9.1 Licensee acknowledges that the Licensed
Software is experimental. Licensee acknowledges that the Licensed
Software may have defects or deficiencies which cannot or will not be corrected
by Sun. 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, and from any claims that later versions or releases
of any Licensed Software furnished to Licensee are incompatible with the
Licensed Software provided to Licensee under this Agreement.
9.2 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' use of the Licensed Software.
9.3 Licensee acknowledges that Sun is under
no obligation to release the Licensed Software as a product of Sun.
9.4 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 the other party has been previously advised
of the possibility of such damage.
10.0
U.S. GOVERNMENT RIGHTS
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).
11.0
GENERAL TERMS
11.1 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.
11.2 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.
11.3 It is understood and agreed that, notwithstanding
any other provision of this Agreement, Licensee's breach of the provisions
of Section 7 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.
11.4 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.
11.5 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 during the term of this Agreement.
No modification to this Agreement will be binding, unless in writing and
signed by an authorized representative of each party.
(LFI#119645/Form ID#011801)