TotalView Technologies, LLC Evaluation License 03Aug05
USE OF SOFTWARE ORDERED FROM TOTALVIEW TECHNOLOGIES, LLC ("TOTALVIEW
TECHNOLOGIES") IS PROVIDED ONLY UNDER LICENSE WITH TOTALVIEW
TECHNOLOGIES. PLEASE READ THE FOLLOWING LICENSE AGREEMENT (THE
"AGREEMENT") CAREFULLY. IF YOU DO NOT ACCEPT THE TERMS OF THIS
AGREEMENT, YOU SHALL NOT HAVE ANY RIGHT TO USE THE SOFTWARE.
1. DEFINITIONS
The following terms shall have the following meanings:
"Documentation" means the technical publications prepared and
delivered to Licensee by TOTALVIEW TECHNOLOGIES relating to use of the
Software, such as user and installation guides.
"License Key(s)" means the code(s) transferred from TOTALVIEW
TECHNOLOGIES to Licensee allowing Licensee to use the Software.
"License Key Information Form" means the form completed by Licensee
and submitted to TOTALVIEW TECHNOLOGIES setting forth the information
requested by TOTALVIEW TECHNOLOGIES for the transfer of the License
Key.
"Licensee" means the individual or entity licensing the Software
hereunder as listed on the License Key Information Form.
"Software" means those items of software, in object code format only,
proprietary to TOTALVIEW TECHNOLOGIES and/or its suppliers, that
Licensee has ordered from TOTALVIEW TECHNOLOGIES pursuant to the
License Key Information Form.
2. EVALUATION LICENSE TERMS
TOTALVIEW TECHNOLOGIES grants to Licensee a non-exclusive,
non-transferable license to use on a single machine the evaluation
version of the Software for evaluation and trial purposes only. This
license begins upon transfer of the License Key from TOTALVIEW
TECHNOLOGIES to Licensee and ends upon expiration of the License Key
(the "Evaluation Period"). When the license expires, Licensee must
stop using the Software; the Software will automatically become
non-functional at the end of the Evaluation Period. Licensee is
forbidden from using the Software for any use other than as explicitly
set forth herein.
3. LIMITED WARRANTY/LIMITATIONS ON LIABILITY
3.1 No Warranties. THE SOFTWARE IS PROVIDED "AS-IS". TOTALVIEW
TECHNOLOGIES HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES,
EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, INCLUDING WITHOUT
LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR USE OR PURPOSE,
MERCHANTABILITY AND NON-INFRINGEMENT. TOTALVIEW TECHNOLOGIES MAKES NO
WARRANTIES THAT THE SOFTWARE WILL OPERATE WITHOUT INTERRUPTION OR BE
ERROR-FREE. TOTALVIEW TECHNOLOGIES MAKES NO REPRESENTATIONS ABOUT THE
SUITABILITY OF THE SOFTWARE OR ABOUT THE ACCURACY OF ANY CONTENT OR
INFORMATION MADE ACCESSIBLE BY THE SOFTWARE. THE ENTIRE RISK AS TO
THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS BORNE BY
LICENSEE. SHOULD THE SOFTWARE PROVE DEFECTIVE, LICENSEE AND NOT
TOTALVIEW TECHNOLOGIES SHALL ASSUME THE ENTIRE COST OF ANY SERVICE AND
REPAIR.
3.2 Limitations on Liability. THE SOFTWARE IS PROVIDED GRATUITOUSLY
AND, THEREFORE, TOTALVIEW TECHNOLOGIES AND ITS SUPPLIERS SHALL NOT BE
LIABLE FOR ANY DAMAGES (INCLUDING DIRECT, INDIRECT, INCIDENTAL,
CONSEQUENTIAL AND SPECIAL DAMAGES) UNDER ANY THEORY OF LIABILITY
(INCLUDING TORT, CONTRACT, OR ANY OTHER THEORY) ARISING OUT OF
LICENSEE'S OR ANY THIRD PARTY'S USE OF SUCH SOFTWARE OR IN ANY OTHER
WAY ARISING OUT OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. Some states do not permit disclaimers of certain
warranties or limitations on certain types of liability under certain
circumstances; consequently, some of the foregoing disclaimers and
limitations may not be applicable to Licensee, in whole or in part.
4. OWNERSHIP
Title, ownership rights, and all intellectual property rights in and
to the Software and Documentation shall remain with TOTALVIEW
TECHNOLOGIES and/or its licensors. Licensee agrees to abide by the
copyright laws and all other applicable laws of the United
States. Licensee agrees not to modify the Software, reproduce or
distribute the Software except as expressly authorized herein, create
derivative works of, or attempt to decipher, decompile, disassemble or
reverse engineer the Software or assist or encourage any third party
in doing so.
5. TERM
This Agreement will take effect upon transfer of the License Key from
TOTALVIEW TECHNOLOGIES to Licensee, and will remain in force until
expiration of the Evaluation Period. Expiration of this Agreement
will not affect the provisions disclaiming TOTALVIEW TECHNOLOGIES'
liability, which provisions shall survive any expiration or
termination of this Agreement.
6. GOVERNMENT MATTERS
6.1 Export Laws. Licensee agrees to comply with all export laws,
restrictions, national security controls and regulations of the United
States and applicable foreign agencies and authorities, and not to
export or re-export, or allow the export or re-export of the Software
or any copy or direct product thereof in violation of any such
restrictions, laws or regulations, or to any group D:1 or E:2 country
(or any national of such country) specified in the then current
Supplement No. 1 to Part 740, or, in violation of the embargo
provisions in Part 746, of the U.S. Export Administration Regulations
(or any successor regulations or supplement), except in compliance
with all licenses and approvals required under applicable export laws
and regulations, including without limitation, those of the
U.S. Department of Commerce.
6.2 Government End-Users. The Software is "Commercial Computer
Software" as that term is defined in FAR 52.227-19, consisting of
"computer program, computer data base, or documentation". All
U.S. Government users, including contractors and subcontractors under
any U.S. Government contract, acquire the Software with only those
rights set forth in this Agreement, subject to the additional
restrictions, limitations and prohibitions and rights recited in FAR
52.227-19.
6.3 Additionally, the Software is a "commercial item" as that term is
defined in 48 C.F.R. 2.101 (2/9/98), consisting of "commercial
computer software" and "commercial computer software documentation",
as such terms are used in 48 C.F.R. 12.212 (2/9/98) governing the
acquisition process for commercial items. All U.S. Government users,
including contractors and subcontractors under any U.S. Government
contract, acquire the Software with only those rights set forth in
this Agreement subject to the additional restrictions, limitations and
prohibitions and rights recited in FAR 52.227-19.
7. THIRD PARTY MATERIALS.
TOTALVIEW TECHNOLOGIES may provide to Customer certain software that
is specifically labeled as being provided by and/or owned other than
by TOTALVIEW TECHNOLOGIES ('Third Party Materials") in connection with
the TOTALVIEW TECHNOLOGIES-owned Software. It is acknowledged by
Customer that Customer shall be licensing such Third-Party Materials
directly from the third party, including the right to use such Third
Party Materials in connection with the TOTALVIEW TECHNOLOGIES-owned
Software.
Certain Third Party Materials supplied by TOTALVIEW TECHNOLOGIES are
open source materials, and as such are governed by open-source
software license agreements supplied with such open source materials,
such as the Sun Public License. TOTALVIEW TECHNOLOGIES makes no claim
of ownership of open source materials, and such open source materials
are supplied solely in accordance with the license agreements
accompanying such software. Accordingly, the restrictions in Section 4
concerning modification and other provisions do not apply to such open
source materials. However, the disclaimer of warranty and limit on
liability in Section 3 do apply to all Third Party Materials.
8. MISCELLANEOUS
8.1 If any term, condition, or provision in this Agreement is found to
be invalid, unlawful or unenforceable to any extent, the remaining
terms, conditions and provisions will continue to be valid and
enforceable to the fullest extent permitted by law.
8.2 This Agreement represents the entire agreement of the parties with
respect to the subject matter of this Agreement and supersedes all
previous communications, representations, understandings and
agreements, either oral or written, between the parties with respect
to said subject matter.
8.3 This Agreement may not be amended, except in writing, signed by
both parties. No terms, provisions or conditions of any purchase
order, acknowledgment or other business form that Licensee may use in
connection with the acquisition or licensing of the Software will have
any effect on the rights, duties or obligations of the parties under,
or otherwise modify, this Agreement, regardless of any failure of
TOTALVIEW TECHNOLOGIES to object to such terms, provisions or conditions.
8.4 This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts without regard to
conflict of law principles. The United Nations Convention on
Contracts shall have no applicability to this Agreement or Licensee's
use of the Software.
TotalView Technologies LLC Confidential and Proprietary
