NOTICE -- READ THIS BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE.
INSTALLING AND USING THE SOFTWARE ACCOMPANYING THIS LICENSE (THE "SOFTWARE") INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. READ ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT PRIOR TO DOWNLOADING, INSTALLING OR USING THE SOFTWARE. IF YOU DO NOT ACCEPT THESE TERMS, YOU MUST NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE.
PLEASE NOTE THAT YOU MAY NOT USE, COPY, MODIFY OR TRANSFER THE SOFTWARE OR DOCUMENTATION (AS DEFINED BELOW) OR ANY COPY THEREOF, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT.
Grant of License: Miramar Systems, Inc. ("MIRAMAR") grants you ("LICENSEE") a nonexclusive and nontransferable license, without rights of sublicense, to use PC MACLAN (the "SOFTWARE") for LICENSEE's own use as provided in this Agreement.
Authorized Use: This license allows LICENSEE to use the SOFTWARE only on a single computer at a time, except that the SOFTWARE may be executed from a common disk shared by multiple CPU's (File Server).
Copyright: The SOFTWARE and any written documentation included with the SOFTWARE (the "DOCUMENTATION"), along with all intellectual property rights therein, are owned by MIRAMAR and its third party licensors, if any, and are protected by United States copyright laws and international treaty provisions. Therefore, you must treat the SOFTWARE and DOCUMENTATION like any other copyrighted material, except you may make one copy of the SOFTWARE solely for backup purposes. You agree that you neither own nor hereby acquire any claim or right of ownership to the SOFTWARE or the DOCUMENTATION or to any intellectual property contained therein. You may not copy the DOCUMENTATION. You may not modify or translate the SOFTWARE or the DOCUMENTATION without the prior written consent of MIRAMAR. You may not rent or lease the SOFTWARE, but you may transfer the SOFTWARE and the DOCUMENTATION on a permanent basis provided you retain no copies and the recipient agrees to the terms of this Agreement. You may not reverse engineer, decompile, or disassemble the SOFTWARE. You agree to use your best efforts to prevent and protect the contents of the SOFTWARE and DOCUMENTATION from unauthorized use. MIRAMAR and its licensors, if any, reserve all rights not expressly granted to you.
TERM: The term of this Agreement shall commence upon the acceptance of this Agreement as provided and upon first use of the SOFTWARE, and shall continue unless terminated in accordance with this Agreement. You may terminate this license at any time by destroying the SOFTWARE and DOCUMENTATION and the permitted backup copy. This license automatically terminates if you fail to comply with its terms and conditions. You agree that, upon such termination, you will destroy (or permanently erase) all copies of the SOFTWARE and DOCUMENTATION.
WARRANTY AND DISCLAIMER: MIRAMAR hereby warrants that the SOFTWARE, as delivered and if properly installed by LICENSEE on the designated CPU, will be capable of operating substantially in conformance with the SOFTWARE's published specifications set forth in the DOCUMENTATION. MIRAMARÆs entire liability and LICENSEE's exclusive remedy for any breach of the above warranty shall be, at MIRAMAR's option, either (a) return of the price paid by LICENSEE for the SOFTWARE or (b) repair or replacement of the SOFTWARE so that it conforms substantially to its published specifications as set forth in the Documentation. This limited warranty is void if failure of the SOFTWARE has resulted from accident, abuse, or misapplication. Any replacement SOFTWARE will be warranted for the remainder of the original warranty period or 30 days, whichever is longer.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS PARAGRAPH, MIRAMAR MAKES NO WARRANTIES EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, AND DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THIS WARRANTY DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
Infringement & Claims: MIRAMAR agrees to indemnify LICENSEE and to hold it harmless from any and all claims of infringement of United States copyrights asserted against LICENSEE by virtue of LICENSEE's authorized use of the SOFTWARE as delivered, installed, and maintained by MIRAMAR on a designated CPU, provided that MIRAMAR is given prompt written notice of any such claim and the right to control and direct the investigation, preparation, defense, and settlement of each such claim, and further provided that LICENSEE fully cooperates with MIRAMAR in connection with the foregoing and provides MIRAMAR with all information in LICENSEE's possession related to such claim and further assistance as reasonably requested by MIRAMAR. MIRAMAR will have no obligation to indemnify LICENSEE to the extent any such claim is based on any use of the SOFTWARE that is not expressly authorized by this Agreement or that is based on any use of the SOFTWARE with software or equipment not supplied or expressly included within this indemnification in advance and in writing by MIRAMAR. Should the SOFTWARE as delivered, installed, and maintained by MIRAMAR on the designated CPU become, or in MIRAMAR's opinion be likely to become, the subject of any such claim, MIRAMAR may provide notice to you of such circumstances, whereupon you agree to cease using the SOFTWARE and MIRAMAR shall, at its option, either (i) procure for you the right to continue to use the SOFTWARE as contemplated hereunder, (ii) replace or modify the SOFTWARE to make its use non-infringing, or (iii) refund your purchase price and terminate the license set forth in this Agreement.
Limited Liability: IN NO EVENT WILL MIRAMAR OR ITS LICENSORS, IF ANY, BE LIABLE FOR ANY INDIRECT DAMAGES OR OTHER RELIEF ARISING OUT OF YOUR USE OR INABILITY TO USE THE SOFTWARE INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST BUSINESS OR LOST OPPORTUNITY, OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING LEGAL FEES, ARISING OUT OF SUCH USE OR INABILITY TO USE THE SOFTWARE, EVEN IF MIRAMAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL AND CONSEQUENTIAL DAMAGES, SO CERTAIN OF THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
Export Controls. The SOFTWARE and the underlying information and technology may not be downloaded or otherwise exported or reexported (i) into (or to a national or resident of) Cuba, Iraq, Libya, Yugoslavia, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Department of TreasuryÆs lists of Specially Designated Nationals, Specially Designated Terrorists, or Specially Designated Narcotics Traffickers, or the U.S. Department of CommerceÆs Table of Denial Orders. By downloading or using the SOFTWARE, you are agreeing to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
U.S. Government End Users. The SOFTWARE 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). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire only those rights in the SOFTWARE and the DOCUMENTATION that are provided by this Agreement.
General Provisions: This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements, understanding, negotiations, and discussion of the parties. All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the parties, their successors, assigns, and legal representatives, except that LICENSEE may not assign or otherwise transfer this Agreement or the license granted herein other than as expressly permitted by this Agreement, and any attempt by LICENSEE to do so will be void and will be deemed a breach of this Agreement.
The validity, construction, and performance of this Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to conflicts of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this license. If any provision of this Agreement is held invalid or unenforceable, the other provisions shall remain in full force and effect. In the event of any action to enforce this Agreement, the prevailing party shall be entitled to recover from the other its court costs and reasonable attorneys' fees, including costs and fees on appeal.
