SOURCE CODE LICENSE AGREEMENT
PRIOR TO DOWNLOADING AND USING THE SOFTWARE PRODUCTS DESCRIBED BELOW
(HDK 7.1), CAREFULLY READ ALL TERMS AND CONDITIONS OF THE FOLLOWING
SOURCE CODE LICENSE AGREEMENT ("AGREEMENT"). IF YOU ACKNOWLEDGE THAT YOU
UNDERSTAND THE AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS,
SELECT "ACCEPT" WHEN THE OPTION APPEARS. SELECT "CANCEL" IF YOU DO NOT
AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND THEREFORE
WISH TO END THIS SESSION AND NOT DOWNLOAD THE SOFTWARE PRODUCTS.
Xinuos, Inc. ("Xinuos") hereby grants you, and you hereby
accept from Xinuos, a perpetual, non-exclusive right to use the
PRODUCTS described in Section 2 below, subject to the terms and conditions
of this Agreement.
"PRODUCT(S)" means the human-readable source code version and machine-readable
binary version of the UnixWare 7 Hardware Developers Kit ("HDK 7.1").
You may use, copy and modify the PRODUCTS only for purposes of development on
the Xinuos operating system platform. You may make additional copies of the
PRODUCTS exclusively for internal back-up purposes. You will reproduce all
confidentiality and proprietary notices on each of these items. You may
further compile the PRODUCTS and modifications thereto and distribute
the resulting binary copies for use on the Xinuos platform, without royalty
to Xinuos, provided (i) such binary PRODUCT(S) is licensed pursuant to an
end user license agreement substantially similar to that utilized by Xinuos,
a copy of which will be provided to you upon request; and (ii) you
reproduce all confidentiality and proprietary notices of Xinuos in such
binary product. You may not distribute the PRODUCTS in source code form,
except that you may permanently transfer your rights in and to the
PRODUCTS as set forth in Section 9 below.
EXCEPT FOR THE Xinuos WARRANTY SET OUT BELOW, OR OTHERWISE EXPRESSLY PROVIDED
IN A SEPARATE AGREEMENT WITH Xinuos, ALL WARRANTIES, CONDITIONS,
REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE
PRODUCTS, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL
OR WRITTEN STATEMENTS BY Xinuos OR ITS REPRESENTATIVES OR OTHERWISE
(INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO
THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU
SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM
JURISDICTION TO JURISDICTION.
- NO CONSEQUENTIAL DAMAGES
IN RECOGNITION OF THE FACT THAT YOU WILL NOT PAY ANY SOURCE CODE FEES OR
OTHER MONETARY CONSIDERATION UNDER THIS AGREEMENT, UNDER NO CIRCUMSTANCES
WILL Xinuos OR ITS REPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL,
INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR
UNFORESEEABLE, BASED ON YOUR CLAIMS OR THOSE OF YOUR CUSTOMERS (INCLUDING,
BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF
MONEY OR USE OF THE PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA,
STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH
OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT,
MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE,
EXCEPT ONLY IN THE CASE OF PERSONAL INJURY WHERE AND TO THE EXTENT THAT
APPLICABLE LAW REQUIRES SUCH LIABILITY.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF EXCLUSION OF LIABILITY FOR
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES SO THE ABOVE
LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Xinuos retains all rights, title, "moral rights" and interest to the
PRODUCTS as provided to you by Xinuos. Subject to Xinuos's underlying
rights, including but not limited to its ownership rights in the PRODUCTS,
you shall retain all right, title, "moral rights" and interest in any
modifications made by you to the PRODUCTS. Any copies of the modified
PRODUCTS distributed by you shall bear the copyrights of both you and
Xinuos. All trademarks, service marks, patents, copyrights, trade
secrets and other proprietary rights in or related to the Xinuos
provided PRODUCTS are and will remain the exclusive property of Xinuos,
whether or not specifically recognized or perfected under local applicable
law. You further acknowledge that the PRODUCTS as provided to you by Xinuos
embody confidential information owned by Xinuos and you agree to make
commercially reasonable best efforts to protect the confidentiality of
You may terminate this Agreement, by notifying Xinuos of such termination.
Xinuos may terminate this Agreement, upon reasonable notice and without
judicial or administrative resolution, if you or any of your
employees or consultants breach any term or condition hereof.
Upon the termination of this Agreement for any reason, all rights and
licenses granted to you hereunder will cease, and you must promptly
(i) purge the PRODUCTS from all your computer systems, storage media
and other files, (ii) destroy the PRODUCTs and all copies thereof and
(iii) deliver to Xinuos an affidavit which
certifies that you have complied with these termination obligations.
- EXPORT RESTRICTIONS
You acknowledge that the PRODUCTS and all related technical information,
documents and materials are subject to export controls under the U.S.
Export Administration Regulations and the export regulations of other
countries. You may not re-export the PRODUCTS or any related technical
information, document or material unless you have obtained an appropriate
authorization from the U.S. Commerce Department and any other
relevant government authority.
You may assign this Agreement and permanently transfer the PRODUCTS to a
third party, but only if you promptly send Xinuos an affidavit signed by
you and your assignee that (i) sets forth your assignee's name
and address, (ii) acknowledges that your assignee will comply with the
terms and conditions of this Agreement and (iii) certifies that you have
fulfilled item (i) of Section 7 and have not retained any PRODUCTS or
copies thereof. All such signed affidavits shall be sent to Xinuos, Inc.
2300 West Sahara Avenue, Suite 1150, Las Vegas, Nevada 89102.
Except as provided above,
you may not assign, sublicense, lease, pledge
or otherwise transfer or encumber the PRODUCTS, this Agreement or your
rights or obligations hereunder without Xinuos's prior approval.
All notices or approvals required or permitted under this Agreement must
be given in writing. Any waiver or modification of this Agreement will
not be effective unless executed in writing and signed by Xinuos. This
Agreement will bind your successors-in-interest. This Agreement is governed
by the laws of the State of Utah, U.S.A. If any provision of this
Agreement is held to be unenforceable, in whole or in part, such
holding will not affect the validity of the other provisions of this
Agreement. If you are a U.S., State, or Local Government end-user,
PRODUCTS and/or Software produced by Xinuos are commercial computer
software as defined in FAR 12.212, and have been developed exclusively at
private expense. All technical data, or Xinuos commercial computer
software/documentation is subject to the provisions of FAR !2.211 - "Technical
Data", and FAR 12.212 - "Commercial Computer Software" respectively, or
clauses providing Xinuos equivalent protection in DFARS or other agency
specific regulations. In the event of any inconsistency between this
Agreement and any other related agreement between Xinuos and you, the terms
of this Agreement will prevail.