SMALL PROGRAMABLE OBJECT TECHNOLOGY DEVELOPMENT KIT
PURCHASE AND END USER LICENSE AGREEMENT
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READ THIS! THIS PURCHASE AND END USER LICENSE AGREEMENT ("AGREEMENT")
IS A LEGAL AGREEMENT BETWEEN SUN MICROSYSTEMS, INC., A DELAWARE CORPORATION
WITH ITS ADDRESS AT 4150 NETWORK CIRCLE, SANTA CLARA, CA 95054 ("SUN") AND YOU.
IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF A THIRD PARTY ENTITY,
YOU REPRESENT THAT YOU ARE AUTHORIZED TO DO SO. THE TERM "YOU" IN THIS AGREEMENT
MEANS YOU OR ANY THIRD PARTY ENTITY ON WHOSE BEHALF YOU AGREE TO THIS AGREEMENT.
BY CLICKING "ACCEPT" OR BY PROCEEDING WITH PURCHASING, ACQUIRING, ACCESSING,
DOWNLOADING, USING, INSTALLING, OR OPENING THE PACKAGING OF, THE TECHNOLOGY OR
OTHER MATERIALS THAT ACCOMPANY OR ARE OTHERWISE ASSOCIATED WITH THIS AGREEMENT,
YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO THE TERMS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CLICK "ACCEPT" OR PURCHASE,
ACQUIRE, ACCESS, DOWNLOAD, USE, INSTALL, OR OPEN THE PACKAGING OF, THE TECHNOLOGY OR OTHER MATERIALS.
1. INTERPRETATION.
"Equipment" means the hardware (including components), software media and spare parts, if any, offered for sale under this Agreement.
"Technology" means Equipment and Software.
"Software" means
(i) any binary software programs offered for license under this Agreement,
(ii) any Updates, and
(iii) any related user manuals or other documentation.
"Sun Trademarks" means all names, marks, logos, designs, trade dress and other brand designations used by Sun in connection with Technology.
"Updates" means subsequent releases and error corrections for Software previously licensed by Sun under this Agreement.
2. ORDERING AND DELIVERY.
You may order Technology by submitting an order and making payment in the manner directed by Sun. The stated charges for Technology are exclusive of all sales and other taxes based upon the value of the Technology (for which You are responsible). Sun may accept the order by shipping the Technology. Title to Equipment and risk of loss or damage to Technology will pass from Sun upon delivery, Ex Works Sun's delivery center. Technology will be deemed accepted upon such delivery.
3. LICENSE TERMS FOR SOFTWARE.
a. License grant. Sun grants You a limited non-exclusive and non-transferable license to use Software provided to You hereunder for Your internal use only.
b. Restrictions, Reservation of rights, Notices and Supplemental Terms. Software is confidential and copyrighted, licensed (not sold) and all rights therein not expressly granted to You under this Agreement are reserved to Sun, and Sun retains title to all copies. You may make a single identical copy of the Software for archival purposes. Except as prohibited by applicable law, You may not modify, decompile, or reverse-engineer Software. You may use any Sun or third party Software bundled with the Technology only as bundled and in conjunction with that Technology and not on a stand-alone basis. If 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 Software and accompanying documentation are only as set out in this Agreement; this is in accordance with 48 CFR 227.7201 through 227.7202-4 (for Department of Defense (DoD) acquisitions) and with 48 CFR 2.101 and 12.212 (for non-DoD acquisitions). Software is subject to any supplemental license terms attached to this Agreement, included in a "readme" file with the Software or otherwise accompanying the Software ("Supplemental License Terms"). In the event of any inconsistencies, Supplemental License Terms will prevail with respect to the Software to which it applies.
4. NO SUPPORT.
Sun is under no obligation to support Technology or to provide You with Updates. If Sun, in its sole discretion, supplies Updates to You, the Updates will be deemed part of the Software, and subject to the terms of this Agreement.
5. EXPORT LAWS.
You acknowledge that Technology and any other materials provided by Sun under this Agreement may be subject to U.S. export, trade or security laws; You agree to comply with all such laws as well as other applicable laws, and are responsible for obtaining any licenses required for export, re-export or import. You agree not to directly or indirectly acquire for or ship, transfer, export or re-export to any countries, nationals or entities identified on the most current U.S. embargo, export or trade exclusion, control or restriction lists or on any terrorist lists (including those identified in U.S. Export regulations at 15 C.F.R. Parts 730-774 and elsewhere), and repesent You are not on any such lists. You agree not to use or supply anything provided by Sun under this Agreement for nuclear, missile or chemical or biological weaponry uses.
6. SUN TRADEMARKS.
You may refer to Equipment and Software by their associated names, provided that such reference is not misleading and complies with Sun's Trademark and Logo Policies, which are found at http://www.sun.com/policies/trademarks. You may not remove or alter any Sun Trademarks, nor may You co-logo Technology. You agree that any use of Sun Trademarks by You will inure to the sole benefit of Sun. You agree not to incorporate any Sun Trademarks into Your trademarks, service marks, company names, Internet addresses, domain names, or any other similar designations.
7. PUBLICITY.
Sun may use Your name in promotional materials, including press releases, presentations and customer references regarding the sale of Technology. These permissions are free of charge for worldwide use in any medium. Sun will obtain Your prior approval for publicity that contains claims, quotes, endorsements or attributions by You, such approval not to be unreasonably withheld.
8. DISCLAIMER OF WARRANTY. TECHNOLOGY IS PROVIDED "AS IS". YOU BEAR ALL RISKS ASSOCIATED WITH USING TECHNOLOGY. 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 TO THE EXTENT PERMITTED BY LAW. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CONSUMER OR OTHER LAWS THAT THIS AGREEMENT CANNOT CHANGE. TO THE EXTENT APPLICABLE LAW REQUIRES THAT WARRANTIES OR OTHER RIGHTS OR REMEDIES BE EXTENDED TO YOU, SUCH WARRANTIES OR OTHER RIGHTS OR REMEDIES ARE LIMITED SOLELY TO THE MINIMUM REQUIRED BY LAW. TO THE EXTENT APPLICABLE LAW ALLOWS SUN TO PROVIDE ALTERNATIVE RIGHTS OR REMEDIES, SUN MAY IN ITS SOLE DISCRETION ELECT WHICH RIGHT OR REMEDY TO PROVIDE, AND EXCEPT TO THE EXTENT PROHIBITED BY LAW, SUN'S SOLE LIABILITY AND YOUR SOLE REMEDY SHALL IN NO EVENT EXCEED, IN THE SOLE DISCRETION OF SUN, REPAIR OR REPLACEMENT OF THE TECHNOLOGY, OR REFUND OF MONETARY AMOUNTS PAID BY YOU FOR THE TECHNOLOGY.
9. LIMITATION OF LIABILITY.
You acknowledge that Technology may be experimental. You acknowledge that Technology may have defects or deficiencies that cannot or will not be corrected by Sun. You further acknowledge that, except to the extent Sun labels the technology otherwise, the Technology may not have been approved by the United States Federal Communications Commission, any other governmental agency, or any test laboratory (e.g., Underwriter's Laboratories, TUV). You will hold Sun harmless from any claims based on Your use of the Technology for any purpose, and from any claims that later versions or releases of any products or other materials furnished to You are incompatible with Technology provided to You under this Agreement.
EXCEPT TO THE EXTENT THE FOLLOWING LIMITATIONS ARE PROHIBITED BY LAW, IN NO EVENT WILL SUN'S LIABILITY EXCEED THE GREATER OF THE MONETARY AMOUNT PAID BY YOU UNDER THIS AGREEMENT OR U.S. $5.00 (FIVE DOLLARS), AND IN NO EVENT WILL SUN BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOST PROFITS, LOST SALES, LOST REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR LOSS OF PROGRAMS OR DATA WHETHER THE LIABILITY, LOSS, OR DAMAGE ARISES IN CONTRACT (INCLUDING, WITHOUT LIMITATION, BREACH OF WARRANTY), TORT (INCLUDING, WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE. THE FOREGOING LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF SUN KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH LIABILITY, LOSSES OR DAMAGES AND EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10. TERMINATION. Sun may terminate this Agreement immediately by written notice: (i) if You commit a non-remediable material breach; or (ii) if You fail to cure any remediable material breach within thirty (30) days of being notified in writing of such breach. Following termination, You will deliver to Sun any property of Sun in Your possession or control relating to this Agreement, in good condition, reasonable wear and tear excepted. Notwithstanding the immediately preceding sentence, You will not be obligated to return any property to which You have continuing rights, including the right of possession. Where this Agreement has been terminated by Sun for cause, You will destroy all copies of Software.
11. ASSIGNMENT. You may not assign this Agreement or any of its rights or obligations hereunder without Sun's prior written consent.
12. GENERAL
a. This Agreement will be governed by and construed in the English language and by and in accordance with the laws of the United States of America and the State of California, without giving effect to conflict of law principles of any jurisdiction or to the United Nations Convention on Contracts for the International Sale of Goods (1980), which is specifically excluded in its entirety. Any proceeding arising out of this Agreement must be exclusively brought in the appropriate courts in Santa Clara County, California, and You submit to the exclusive jurisdiction of those courts. This Agreement will be interpreted in accordance with its terms and without regard to the manner of its negotiation or drafting. The section and paragraph headings in this Agreement are for convenience of reference only, and are not to affect the interpretation of this Agreement.
b. Sun is not liable under this Agreement for non-performance caused by events or conditions beyond its reasonable control, if Sun makes reasonable efforts to perform.
c. All written notices, including by electronic mail or facsimile, required by this Agreement must be delivered in person or by means evidenced by a delivery receipt or acknowledgment and will be effective upon receipt.
d. To the extent any provision of this Agreement is found by a court or other adjudicator of competent jurisdiction to be invalid or unenforceable, it will be amended to achieve as nearly as possible the effect of its original form, and the remaining provisions will remain in full force.
e. Sections 1, 3.b, 4, 5, 8, 9 and 12 will survive termination of this Agreement.
f. The failure of Sun to exercise or enforce any right or provision will not constitute a waver of the right or provision or create any expectation of non-enforcement.
g. This Agreement is the entire agreement with regard to its subject matter, and replaces and supersedes any prior verbal or written understandings, communications, and representations with regard to its subject matter. Furthermore, no party has relied on any communications or representations made prior to entering this Agreement. No purchase order or other document that purports to modify or supplement this Agreement will add to or vary the terms of this Agreement. All proposed variations or additions are objected to and deemed material unless otherwise agreed to in a subsequent writing executed by the parties.