Enterprise Services InfoServer Website Agreement

ENTERPRISE SERVICES, SUN MICROSYSTEMS, INC., ("SUN"), IS WILLING TO ALLOW RESELLER/CHANNEL ("CHANNEL") ACCESS TO THIS WEBSITE ONLY ON THE CONDITION THAT CHANNEL ACCEPTS ALL OF THE TERMS IN THIS AGREEMENT.

PLEASE READ THE TERMS CAREFULLY BEFORE CLICKING ON THE "ACCEPT" BUTTON. BY CLICKING ON THE "ACCEPT" BUTTON CHANNEL ACKNOWLEDGES THAT CHANNEL HAS READ AND UNDERSTOOD THIS AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.

IF CHANNEL DOES NOT AGREE TO THESE TERMS, SUN IS UNWILLING TO ALLOW ACCESS TO THIS WEBSITE TO CHANNEL. CHANNEL SHOULD CLICK ON THE "DO NOT ACCEPT" BUTTON TO DECLINE ACCEPTANCE OF THIS AGREEMENT.

1. Grant. Sun grants Channel a nonexclusive, nontransferable, royalty-free license to access the binary software on this website ("Software") in machine readable form on Channel's workstations according to these terms and conditions herein. Channel's license enabling its employees to access the Software is contingent upon Channel maintaining an active Reseller or Channel Agreement with Enterprise Services, Sun Microsystems, Inc. and maintaining proper authorization to download Software. Channel may not sublicense, assign, distribute, transfer, reverse engineer, disassemble, decompile or translate the Software, or otherwise attempt to derive the source code of the Software, and any attempt to do so is void. Channel is not authorized to make any modifications or revisions of any type to any of the Software ("Modifications"). Channel assumes any risk of loss and liability for all damages resulting from such Modifications or distribution and shall indemnify Sun from all liability, expenses, and damages of any type resulting from Channel's Modification or distribution. Sun retains the right to make any modifications or changes to the Software at any time without prior notice. Sun reserves all rights not expressly granted to Channel. The restrictions on Channel's use of the Software set forth in this paragraph are not intended nor shall they be construed to be a complete or exhaustive list of examples of prohibitive uses. Nothing on this website shall be construed as conferring any license under any of Sun's or any third party's intellectual property rights, whether by episcopal, implication, or otherwise. Channel acknowledges sole responsibility for obtaining any such license.

2. Title. No right, title, or interest in and to any trademarks, service marks, or trade names of Sun or Sun's licensors is granted hereunder. Title, ownership rights, and intellectual property rights in the Software shall remain in Sun.

3. Confidentiality. This Software is confidential and proprietary information and trade secrets of Sun and/or its licensors. Channel agrees to take all necessary steps to protect Software from unauthorized disclosure or use. Information (e.g. discounts) contained in the Software is confidential and proprietary information of Sun and may only be used for the intended purpose. The Software is protected by United States copyright law patent and international treaty. Unauthorized reproduction or distribution is subject to civil and criminal penalties.

4. Disclaimer of Warranties. SOFTWARE IS PROVIDED "AS IS," WITHOUT A WARRANTY OF ANY KIND. SUN MAKES NO WARRANTIES, GUARANTEES OR REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF ANY OF THE INFORMATION CONTAINED IN THE SOFTWARE. ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE HEREBY DISCLAIMED. SUN DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE IS FREE FROM BUGS, ERRORS, PASSWORDS, AGING PASSWORDS , OR OTHER PROGRAM LIMITATIONS. THE ENTIRE RISK AS TO USE, QUALITY AND PERFORMANCE OF THE SOFTWARE IS BORNE BY THE CHANNEL.

5. Limitation of Liability. IN NO EVENT WILL SUN BE LIABLE TO CHANNEL OR ANY THIRD PARTY FOR ANY LOST REVENUE, PROFIT, OR DATA, INTERRUPTION OF BUSINESS, OR FOR DIRECT, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ANY DATA SUPPLIED THEREWITH, EVEN IF SUN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CHANNEL HAS SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACKUP OF DATA AND/OR EQUIPMENT USED IN CONNECTION WITH THE WEBSITE AND WILL NOT MAKE A CLAIM AGAINST SUN FOR LOST DATA, RE-RUN TIME, INACCURATE OUTPUT, WORK DELAYS OR LOST PROFITS RESULTING FROM THE USE OF THE MATERIALS. CHANNEL AGREES TO HOLD SUN HARMLESS FROM, AND CHANNEL COVENANTS NOT TO SUE SUN FOR, ANY CLAIMS BASED ON THE USE OF THIS WEBSITE. LIABILITY FOR DAMAGES SHALL BE LIMITED AND EXCLUDED EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.

6. Information Contained in Software. Sun has no direct control over Channel's use of the Software. Sun does not and cannot warrant the performance or results that may be obtained by its use. Sun does not represent, warrant or guarantee the accuracy and timeliness of the information contained in the Software and Sun shall have no liability whatsoever to Channel, or any other party, on account of any inaccuracies or untimeliness of information. Various information in the Software is subject to change (e.g. prices, discounts) at any time. The Software should not be used without confirming or verifying the results obtained from use of the information.

7. Termination. This License is effective upon acceptance and until terminated. Channel may terminate this License at any time by destroying all copies of Software including any documentation. Sun may, in its sole discretion, terminate this license immediately without any Notice for any reason. Upon termination, Channel must destroy all copies obtained from Software. In event of termination of this Agreement, Channel acknowledges and agrees that no implied license to use the Software beyond the term of this license is intended nor shall such license be construed.

8. Government User. The Software is "commercial computer software" and is provided with restricted rights. If Software is used by a Government User, Channel should contact Sun.

9. Export Law. The Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Channel agrees to strictly comply with all such laws and regulations and acknowledges that Channel has the responsibility to obtain such licenses to export, re-export, or import as may be required. By exercising this License, Channel agrees to strictly comply with all of the United States and other applicable country laws and regulations when either exporting or re-exporting or importing this Software or any underlying information or technology. Further, Channel acknowledges that Channel is not a national of Cuba, Iran, Iraq, Libya, North Korea, Sudan or Syria or a party that is listed in the U.S. Table of Denial Orders or U.S. Treasury Department's list of Specially Designated Nationals.

10. Severability. If any provision of this Agreement is held to be unenforceable, that provision will be removed and the remaining provisions will remain in full force.

11. Governing Law, Jurisdiction and Venue. Any action related to this Agreement shall be governed by California law and controlling U.S. federal law, and choice of law rules of any jurisdiction shall not apply. The parties agree that any action shall be brought in the United States District Court for the Northern District of California or the California Superior Court for the County of Santa Clara, as applicable.

12. This website may be linked to other websites which are not maintained by Sun. Sun is not responsible for the content of those sites. The inclusion of any link to such sites does not imply endorsement by Sun of those sites.

13. No Assignment. Any attempt to assign or transfer any of the rights, duties, or obligations hereunder is void.

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