DISTINCT(R) CORPORATION LICENSE AGREEMENT for DISTINCT RPC/XDR for C/C++ Client
Run Time.
BEFORE YOU INSTALL OR ACCESS OR OTHERWISE USE ANY OF THE SOFTWARE CONTAINED IN
THIS PACKAGE OR CLICK ON THE "YES" BUTTON AT THE END OF THIS DOCUMENT, CAREFULLY
READ THE TERMS AND CONDITIONS OF THIS DOCUMENT. BY INSTALLING OR OTHERWISE
USING OR ACCESSING ANY OF THE SOFTWARE CONTAINED IN THIS PACKAGE OR BY CLICKING
ON THE "YES" BUTTON, YOU ARE AGREEING TO AND CONSENTING TO BE BOUND BY AND ARE
BECOMING A PARTY TO THE APPLICABLE LICENSE AGREEMENT AS PROVIDED. IF YOU DO NOT
AGREE TO ALL OF THE TERMS OF SUCH AGREEMENT, CLICK THE "NO" BUTTON AND THE
SOFTWARE WILL NOT BE INSTALLED.
STANDARD END USER LICENSE AGREEMENT
THIS AGREEMENT APPLIES ONLY TO THE STANDARD VERSION OF THE SOFTWARE. IN THE
EVENT THAT YOU HAVE OBTAINED A TRIAL PERIOD VERSION OF THE SOFTWARE, THEN THE
TRIAL PERIOD END USER LICENSE AGREEMENT APPENDED HERETO SHALL BE APPLICABLE
UNTIL YOU HAVE LICENSED THE STANDARD VERSION OF THE SOFTWARE FROM DISTINCT.
ENGLISH LANGUAGE. THE PARTIES HERETO CONFIRM THAT IT IS THEIR WISH THAT THIS
AGREEMENT BE AND SHALL BE IN THE ENGLISH LANGUAGE ONLY, WHICH LANGUAGE SHALL BE
CONTROLLING IN ALL RESPECTS. ALL COMMUNICATIONS AND NOTICES TO BE MADE OR
GIVEN SHALL BE IN THE ENGLISH LANGUAGE.
LES PARTIES AUX PRÉSENTES CONFIRMENT LEUR VOLONTÉ QUE CETTE CONVENTION DE MÊME
QUE TOUS LES DOCUMENTS, Y COMPRIS TOUT AVIS QUI S'Y RATTACHE, SOIENT RÉDIGÉS EN
LANGUE ANGLAISE.
GRANT. Subject to the provisions contained herein and full payment of all
applicable license fees, Distinct Corporation ("Distinct") hereby grants to the
end user ("you") a personal, nonexclusive and nontransferable license to use,
for its intended use only, the accompanying proprietary computer software
product ("Software") and any documentation provided for the Software
("Documentation"), for the term and in the number of copies licensed. The
Distinct ONC RPC/XDR for C/C++ client run time license allows you to install the
client only run time on a single desktop or laptop computer to be used within an
application that is accessed by a single person.
COPYRIGHTS. SUCH SOFTWARE AND DOCUMENTATION ARE THE COPYRIGHTED WORKS OF
DISTINCT AND/OR ITS SUPPLIERS AND ARE PROTECTED BY THE COPYRIGHT LAWS OF THE
UNITED STATES AND INTERNATIONAL TREATY PROVISIONS. THE SOFTWARE AND
DOCUMENTATION ONLY ARE BEING LICENSED AND NOT SOLD.
SOFTWARE FORMAT; UPDATES; SUPPORT.
(1) Distinct shall furnish the Software to you electronically or on media in
machine-readable object code format only. This license does not grant you any
right to the source code of the Software or other formats of the Software and
Documentation, except for certain sample code being distributed hereunder by
Distinct in source code format as part of the Software (“Sample Code”).
(2) This license does not grant you any right to any technical support,
enhancement or update to the Software and Documentation, except for 30 (thirty)
days from the date of purchase of this license, unless you have also paid the
required subscription fee to Distinct, in which case you are entitled to
subscription services in the form of technical support, enhancements and updates
to the current version of the Software for one year from the date of purchase
("Subscription"). Technical support shall in any event be available only for
the then current version. For purposes hereof any upgrade or enhancement of the
Software obtained during the period of the license covered by Subscription shall
be deemed part of the "Software".
(3) Any released update or enhancement to the Software shall be used only in
conjunction with the Software as originally installed on a single computer and
may not be separated for use.
RESTRICTED USE. You may not copy or distribute the Software or the
Documentation, except as follows:
(1) If you have acquired a single user license for use of the Software, you
may make a single copy of the Software and the Documentation for backup or
archival purposes.
(2) If you have acquired a multi user license for use of the Software, you may
make the number of copies of the Software and the Documentation for internal use
equal to the number of copies for which you have paid the license fee, plus a
single copy of the Software and the Documentation for backup or archival
purposes. In the case of a multi user license, Distinct shall have reasonable
rights of audit to ensure compliance with these terms and conditions.
(3) If you are an Independent Software Vendor (ISV) and have acquired multiple
licenses for use of the Software by one or more of your customers (end users),
you may integrate the Software within your product installation and make a
number of copies of the Software and the Documentation for use by the same end
users equal to the number of copies for which you have paid a license fee. With
the exception of this paragraph (3), which applies only to the ISV purchasing
the licenses, all other terms and conditions of this Agreement shall apply to
you and your end users. In this case Distinct shall have reasonable rights of
audit to ensure compliance with these terms and conditions.
No other copies of the Software or the Documentation shall be made by you or any
other person or entity at any time.
All permitted copies of the Software or the Documentation shall be subject to
this Agreement and shall contain all notices of copyright, trademark or other
proprietary rights and all claims of trade secret rights as contained in the
original Software or Documentation provided to you. You may not remove or
obscure any said copyright or trademark or proprietary rights notices of
Distinct or the text of this Agreement at any time for any purpose.
TRANSFERS PROHIBITED. This Agreement is personal to you. You are prohibited
from selling, loaning, renting, leasing, sublicensing, transmitting,
distributing or redistributing, or otherwise transferring or assigning any part
of the Software or the Documentation to any third party at any time whether by
operation of law or otherwise and whether with or without consideration. Without
limiting the foregoing, any transmittal or transfer of the Software or the
Documentation on the Internet or by other electronic means is prohibited. ANY
REPRODUCTION OR DISTRIBUTION OF THE SOFTWARE OR THE DOCUMENTATION NOT IN
ACCORDANCE WITH THE EXPRESS TERMS OF THIS LICENSE IS PROHIBITED BY LAW AND MAY
SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES. ANY ACTUAL OR ATTEMPTED SALE,
LOAN, RENTAL, LEASE, SUBLICENSE, TRANSMISSION, DISTRIBUTION OR REDISTRIBUTION OR
OTHER TRANSFER OR ASSIGNMENT OF THE SOFTWARE OR THE DOCUMENTATION IN WHOLE OR IN
PART IN ANY MEDIA OR BY ANY METHOD SHALL IMMEDIATELY AND IRREVOCABLY TERMINATE
THIS LICENSE AGREEMENT FOR ALL PURPOSES.
TRADE SECRETS; DERIVATIVE WORKS. You acknowledge and agree that the Software
in source code form remains a confidential and proprietary trade secret of
Distinct and/or its suppliers and therefore you agree not to translate, reverse
engineer, decipher, decompile or disassemble the Software or to permit or cause
others to do so, except to the extent applicable laws specifically prohibit such
restriction. You further agree not to modify or create derivative works of the
Software or the Documentation, other than with respect to the Sample Code
hereunder.
TITLE. All title, ownership rights, and intellectual property rights in and
to the Software and Documentation shall remain the sole property of Distinct
and/or its suppliers and no such rights are being transferred or conveyed
hereunder.
CONTENT. Title, ownership rights, and intellectual property rights in and to
the content accessed through the Software are the property of the applicable
content owner and may be protected by applicable copyright or other laws. This
License gives you no rights to such content.
LIMITED WARRANTY AND LIMITATION OF LIABILITY.
(1) Distinct warrants that for a period of thirty (30) days from the original
date of your receipt of the Software, the Software, if operated as directed,
will substantially achieve the functionality described in the Documentation.
Distinct does not warrant, however, that your use of the Software will be
uninterrupted or that the operation of the Software will be error-free or
secure. Distinct also warrants that the media containing the Software, if
provided by Distinct, will be free from defects in material and workmanship for
a period of thirty (30) days from the original date of your receipt of the
Software. In the event Distinct receives written notice from you of any
defects within the warranty period, Distinct in its sole discretion shall: (i)
replace your defective media; or (ii) advise you how to achieve substantially
the same functionality with the Software as described in the Documentation
through a procedure different from that set forth in the Documentation. The
sole liability of Distinct for any defect or breach of warranty shall be the
remedies set forth herein.
(2) THESE LIMITED WARRANTIES SHALL BE APPLICABLE ONLY TO YOU PERSONALLY AND
ARE NOT APPLICABLE TO ANY THIRD PERSON AND ARE NOT TRANSFERABLE OR ASSIGNABLE TO
ANY EXTENT.
(3) THE FOREGOING ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY
DISTINCT. DISTINCT HEREBY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF NONINFRINGEMENT
OR ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE
LIMITED WARRANTIES GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER LEGAL
RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION. APPLICABLE LAWS MAY
NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT
APPLY TO YOU. NO DISTINCT EMPLOYEE, AGENT, SUPPLIER OR RESELLER IS AUTHORIZED
TO MAKE ANY MODIFICATIONS, EXTENSIONS OR ADDITIONS TO THIS WARRANTY.
(4) Notwithstanding any other provision herein, the limited warranties shall
immediately terminate if any modifications are made to the Software by you at
any time; if the media is subjected to accident, abuse, or improper use; if the
Software is used on or in conjunction with hardware or programs other than the
unmodified version of hardware and programs with which the Software was designed
to be used as described in the Documentation; or if you violate any of the terms
of this Agreement.
HIGH RISK ACTIVITIES. The Software is not fault-tolerant and is not designed,
manufactured or intended for use or resale as on-line control equipment in
hazardous environments requiring fail-safe performance, such as in the operation
of nuclear facilities, aircraft navigation or communication systems, air traffic
control, direct life support systems, or weapons systems, in which the failure
of the Software, or any software, tool, process, or service that was developed
using the Software, could lead directly to death, personal injury, or severe
physical or environmental damage ("High Risk Activities"). Accordingly, Distinct
and its suppliers specifically disclaim any express or implied warranty of
fitness for High Risk Activities and You specifically represent and warrant that
the Software, or any software, tool, process, or service that was developed
using the Software, will not be used for High Risk Activities.
LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY,
WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL DISTINCT OR ITS SUPPLIERS OR
RESELLERS OR ANY OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS THEREOF BE LIABLE TO
YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE ANY
OF THE SOFTWARE OR DOCUMENTATION (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS
OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF BUSINESS
PROFITS, LOSS OF BUSINESS INFORMATION, LOSS OF DATA, OR OTHER PECUNIARY LOSS),
EVEN IF DISTINCT SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
SUBJECT TO THE FOREGOING, IN ALL EVENTS NO LIABILITY FOR DAMAGES SHALL EXCEED
THE AMOUNT OF THE LICENSE FEE PAID TO DISTINCT FOR THIS LICENSE. BECAUSE SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, THESE LIMITATIONS MAY NOT APPLY TO YOU.
EXPORT CONTROLS. You shall not download, transmit or otherwise export or
reexport the Software or any underlying information or technology except in full
compliance with all United States and other applicable laws and regulations. In
particular, but without limitation, none of the Software or the Documentation or
underlying information or technology may be downloaded, transmitted or otherwise
exported or reexported (i) into (or to a national or resident of) Cuba, Iraq,
North Korea, Iran, Syria or Sudan or any other country to which
the United States has embargoed goods; or (ii) to any person on the United
States Treasury Department list of Specially Designated Nationals or the United
States Commerce Department Table of Deny Orders. 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.
COMPLIANCE WITH LAWS You shall further comply with all laws, regulations, and
governmental requirements with respect to the use of the Software that exist in
any jurisdiction where you use the Software.
TERMINATION. Without prejudice to its other rights hereunder, Distinct may
terminate this Agreement and the License if you violate or breach any term or
condition hereof. In the event of such termination, you must immediately
destroy all copies of the Software and the Documentation and cease all use
thereof.
BINDING EFFECT. Subject to the prohibitions on transfer and assignment hereof,
this Agreement shall inure to the benefit of and be binding upon each of the
parties hereto and their respective officers, directors, employees,
shareholders, owners, partners, agents, representatives, parents, subsidiaries,
affiliates, heirs, devisees, successors and assigns.
OTHER SOFTWARE. This Agreement shall not be applicable to any other software
separately distributed by Distinct.
MISCELLANEOUS. This Agreement represents the sole and exclusive agreement
between the parties concerning the subject matter hereof and supersedes all
prior agreements, communications, proposals and representations. This
Agreement may be amended only by a writing executed by both parties. THE
ACCEPTANCE OF ANY PURCHASE ORDER PLACED BY YOU IS EXPRESSLY MADE CONDITIONAL ON
YOUR ASSENT TO THE TERMS SET FORTH HEREIN, AND DISTINCT AGREES TO FURNISH THE
SOFTWARE AND DOCUMENTATION ONLY UPON THESE TERMS AND NOT THOSE CONTAINED IN YOUR
PURCHASE ORDER. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law.
In the event that any provision of this Agreement shall be held by the final
judgment of a court of competent jurisdiction to be invalid or unlawful or
unenforceable, then the remaining provisions of this Agreement shall remain in
full force and effect and shall be construed to give the fullest effect to the
intent of the parties expressed herein. Headings shall not be considered in
interpreting this Agreement. This Agreement shall be governed by the laws of the State
of California without reference to principles of conflicts of law. All disputes arising
under this Agreement shall be brought in the Superior Court of the State of California in
Santa Clara County or the Federal Court for the Northern District of California, San Jose
Branch, and such courts shall have exclusive jurisdiction over disputes under this Agreement.
Licensee expressly consents to jurisdiction and venue in the state and federal courts
located in the State of California, County of Santa Clara, United States of America for all
purposes of this Agreement or any dispute or controversy hereunder. This Agreement
shall not be governed by the United Nations Convention on Contracts for the International
Sale of Goods, the application of which is hereby expressly excluded.
U.S. GOVERNMENT RESTRICTED RIGHTS. The Software and Documentation are being
provided only with RESTRICTED RIGHTS. If the acquiring unit or agency is the
U.S. Department of Defense, use, duplication or disclosure is subject to
restrictions as set forth in DFAR Section 227.7202. If the acquiring unit or
agency is any other unit or agency of the United States Government, use,
duplication or disclosure is subject to restrictions as set forth in FAR Section
12.212 and FAR Section 52.227-19(c)(1) and (2). For these purposes the
manufacturer is Distinct Corporation, 3315 Almaden Expressway, San Jose,
California 95118.
All rights not expressly granted herein are expressly reserved and retained by
Distinct.
COPYRIGHT NOTICE: (c) 2014 Distinct Corporation and/or its suppliers. All
rights reserved.
TRADEMARK NOTICE: "Distinct" and the names of Distinct products or processes
and all Distinct logos are trademarks or registered trademarks or service marks
or trade dress of Distinct Corporation.
DISTINCT CORPORATION
3315 Almaden Expressway
San Jose, California 95118 - U.S.A.
TRIAL PERIOD END USER LICENSE AGREEMENT
THIS AGREEMENT APPLIES ONLY TO THE TRIAL PERIOD VERSION OF THE SOFTWARE. IN THE
EVENT THAT YOU HAVE OBTAINED A TRIAL PERIOD VERSION OF THE SOFTWARE, THEN THE
FOLLOWING AGREEMENT SHALL BE APPLICABLE AND THE FOREGOING LICENSE AGREEMENT
SHALL NOT BE APPLICABLE UNTIL YOU HAVE LICENSED THE STANDARD VERSION OF THE
SOFTWARE FROM DISTINCT FOLLOWING THE TRIAL PERIOD.
IN THE EVENT THAT YOU LICENSE THE STANDARD VERSION OF THE SOFTWARE FROM DISTINCT
FOLLOWING THE TRIAL PERIOD, YOU AGREE THAT (1) YOUR FIRST USE OF THE NON-
EXPIRING SERIAL NUMBER ISSUED TO YOU BY DISTINCT SHALL CONSTITUTE YOUR AGREEMENT
TO AND CONSENT TO BE BOUND BY EACH AND ALL OF THE TERMS AND CONDITIONS OF THE
FOREGOING STANDARD END USER LICENSE AGREEMENT, AND THAT (2) THE TRIAL PERIOD END
USER LICENSE AGREEMENT THEREUPON SHALL BE SUPERSEDED AS TO ALL FUTURE USES OF
THE SOFTWARE.
ENGLISH LANGUAGE. THE PARTIES HERETO CONFIRM THAT IT IS THEIR WISH THAT THIS
AGREEMENT BE AND SHALL BE IN THE ENGLISH LANGUAGE ONLY, WHICH LANGUAGE SHALL BE
CONTROLLING IN ALL RESPECTS. ALL COMMUNICATIONS AND NOTICES TO BE MADE OR
GIVEN SHALL BE IN THE ENGLISH LANGUAGE.
LES PARTIES AUX PRÉSENTES CONFIRMENT LEUR VOLONTÉ QUE CETTE CONVENTION DE MÊME
QUE TOUS LES DOCUMENTS, Y COMPRIS TOUT AVIS QUI S'Y RATTACHE, SOIENT RÉDIGÉS EN
LANGUE ANGLAISE.
GRANT FOR LIMITED TRIAL PERIOD ONLY. Distinct Corporation ("Distinct") hereby
grants to the end user ("you") a personal, nonexclusive and nontransferable
license to use for its intended use only, the accompanying proprietary computer
software product ("Software") and any documentation provided for the Software
("Documentation") for your own internal evaluation and solely for a limited
trial period of thirty (30) days or less, following the date of the first
installation of the Software. AT THE END OF THE TRIAL PERIOD THE SOFTWARE WILL
BE DISABLED AND CANNOT BE USED FURTHER. YOU WILL THEN BE REQUIRED TO SEPARATELY
LICENSE A FULLY FUNCTIONAL VERSION OF THE SOFTWARE FROM DISTINCT.
COPYRIGHTS. THE SOFTWARE AND THE DOCUMENTATION ARE THE COPYRIGHTED WORKS OF
DISTINCT AND/OR ITS SUPPLIERS AND ARE PROTECTED BY THE COPYRIGHT LAWS OF THE
UNITED STATES AND INTERNATIONAL TREATY PROVISIONS. THE SOFTWARE AND
DOCUMENTATION ONLY ARE BEING LICENSED AND NOT SOLD.
SOFTWARE FORMAT; NO SUPPORT, NO UPDATES. Distinct shall furnish the Software to
you electronically or on media in machine-readable object code form. This
license does not grant you any right to any enhancement or update to the
Software and Documentation or to use a fully functional version of the Software.
This Agreement does not grant you any rights to technical support or maintenance
with respect to the Software or Documentation.
TRANSFERS PROHIBITED. This Agreement is personal to you. You are prohibited
from selling, loaning, renting, leasing, sublicensing, transmitting,
distributing or redistributing, or otherwise transferring or assigning any part
of the Software or the Documentation to any third party at any time whether by
operation of law or otherwise and whether with or without consideration.
Without limiting the foregoing, any transmittal or transfer of the Software or
the Documentation on the Internet or by other electronic means is prohibited.
ANY REPRODUCTION OR DISTRIBUTION OF THE SOFTWARE OR THE DOCUMENTATION NOT IN
ACCORDANCE WITH THE EXPRESS TERMS OF THIS LICENSE IS PROHIBITED BY LAW AND MAY
SUBJECT YOU TO SUBSTANTIAL CIVIL AND CRIMINAL PENALTIES. ANY ACTUAL OR
ATTEMPTED SALE, LOAN, RENTAL, LEASE, SUBLICENSE, TRANSMISSION, DISTRIBUTION OR
REDISTRIBUTION OR OTHER TRANSFER OR ASSIGNMENT OF THE SOFTWARE OR THE
DOCUMENTATION IN WHOLE OR IN PART IN ANY MEDIA OR BY ANY METHOD SHALL
IMMEDIATELY AND IRREVOCABLY TERMINATE THIS LICENSE AGREEMENT FOR ALL PURPOSES.
TRADE SECRETS; DERIVATIVE WORKS. You acknowledge and agree that the Software
in source code form remains a confidential and proprietary trade secret of
Distinct and/or its suppliers and therefore you agree not to translate, reverse
engineer, decipher, decompile or disassemble the Software or to permit or cause
others to do so, except to the extent applicable laws specifically prohibit such
restriction. You further agree not to modify or create derivative works of the
Software or the Documentation.
TITLE. All title, ownership rights, and intellectual property rights in and
to the Software and Documentation shall remain the sole property of Distinct
and/or its suppliers and no such rights are being transferred or conveyed
hereunder.
CONTENT. Title, ownership rights, and intellectual property rights in and to
the content accessed through the Software are the property of the applicable
content owner and may be protected by applicable copyright or other laws. This
License gives you no rights to such content.
NO WARRANTY; LIMITATION OF LIABILITY.
(1) NEITHER DISTINCT NOR ITS SUPPLIERS MAKE ANY REPRESENTATION OF ANY KIND
REGARDING THE USEFULNESS OR SUITABILITY OF THE SOFTWARE OR THE DOCUMENTATION
FOR ANY PURPOSE. ALL SOFTWARE AND DOCUMENTATION ARE PROVIDED "AS IS" AND
WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST
EXTENT PERMITTED BY LAW, DISTINCT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WITHOUT LIMITING THE
FOREGOING, DISTINCT DOES NOT WARRANT THAT THE SOFTWARE OR DOCUMENTATION WILL BE
DEFECT OR ERROR-FREE. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
(2) UNDER NO CIRCUMSTANCES SHALL DISTINCT BE LIABLE FOR ANY SPECIAL, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER DAMAGES THAT RESULT FROM THE
USE OR INABILITY TO USE ANY OF THE SOFTWARE OR DOCUMENTATION (INCLUDING WITHOUT
LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR
MALFUNCTION, LOSS OF BUSINESS PROFITS, LOSS OF BUSINESS INFORMATION, LOSS OF
DATA, OR OTHER PECUNIARY LOSS), EVEN IF DISTINCT OR ITS REPRESENTATIVE HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN ANY ACTION OF CONTRACT,
NEGLIGENCE OR OTHER ACTION IN TORT OR OTHERWISE. APPLICABLE LAW MAY NOT ALLOW
THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES,
SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. SUBJECT TO THE
FOREGOING, IN ALL EVENTS NO LIABILITY FOR DAMAGES SHALL EXCEED THE AMOUNT OF THE
LICENSE FEE PAID TO DISTINCT FOR THIS LIMITED LICENSE. BECAUSE SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, THESE LIMITATIONS MAY NOT APPLY TO YOU.
EXPORT CONTROLS. You shall not download, transmit or otherwise export or
reexport the Software or any underlying information or technology except in full
compliance with all United States and other applicable laws and regulations. In
particular, but without limitation, none of the Software or the Documentation or
underlying information or technology may be downloaded, transmitted or otherwise
exported or reexported (i) into (or to a national or resident of) Cuba, Iraq,
North Korea, Iran, Syria or Sudan or any other country to which
the United States has embargoed goods; or (ii) to any person on the United
States Treasury Department list of Specially Designated Nationals or the United
States Commerce Department Table of Deny Orders. 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.
TERMINATION. Without prejudice to its other rights hereunder, Distinct may
terminate this Agreement and the License if you violate or breach any term or
condition hereof. In the event of such termination or at the end of the trial
period in all events, you must immediately destroy all copies of the Software
and the Documentation and cease all use thereof.
BINDING EFFECT. Subject to the prohibitions on transfer and assignment hereof,
this Agreement shall inure to the benefit of and be binding upon each of the
parties hereto and their respective officers, directors, employees,
shareholders, owners, partners, agents, representatives, parents, subsidiaries,
affiliates, heirs, devisees, successors and assigns.
MISCELLANEOUS. This Agreement represents the sole and exclusive agreement
between the parties concerning the subject matter hereof and supersedes all
prior agreements, communications, proposals and representations. This
Agreement may be amended only by a writing executed by both parties. THE
ACCEPTANCE OF ANY PURCHASE ORDER PLACED BY YOU IS EXPRESSLY MADE CONDITIONAL ON
YOUR ASSENT TO THE TERMS SET FORTH HEREIN, AND DISTINCT AGREES TO FURNISH THE
SOFTWARE AND DOCUMENTATION ONLY UPON THESE TERMS AND NOT THOSE CONTAINED IN YOUR
PURCHASE ORDER. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law.
In the event that any provision of this Agreement shall be held by the final
judgment of a court of competent jurisdiction to be invalid or unlawful or
unenforceable, then the remaining provisions of this Agreement shall remain in
full force and effect and shall be construed to give the fullest effect to the
intent of the parties expressed herein. Headings shall not be considered in
interpreting this Agreement. This Agreement shall be governed by the laws of the State
of California without reference to principles of conflicts of law. All disputes arising
under this Agreement shall be brought in the Superior Court of the State of California in
Santa Clara County or the Federal Court for the Northern District of California, San Jose
Branch, and such courts shall have exclusive jurisdiction over disputes under this Agreement.
Licensee expressly consents to jurisdiction and venue in the state and federal courts
located in the State of California, County of Santa Clara, United States of America for all
purposes of this Agreement or any dispute or controversy hereunder. This Agreement
shall not be governed by the United Nations Convention on Contracts for the International
Sale of Goods, the application of which is hereby expressly excluded.
U.S. GOVERNMENT RESTRICTED RIGHTS. The Software and Documentation are being
provided only with RESTRICTED RIGHTS. If the acquiring unit or agency is the
U.S. Department of Defense, use, duplication or disclosure is subject to
restrictions as set forth in DFAR Section 227.7202. If the acquiring unit or
agency is any other unit or agency of the United States Government, use,
duplication or disclosure is subject to restrictions as set forth in FAR Section
12.212 and FAR Section 52.227-19(c)(1) and (2). For these purposes the
manufacturer is Distinct Corporation, 3315 Almaden Expressway, San Jose,
California 95118.
All rights not expressly granted herein are expressly reserved and retained by
Distinct.
COPYRIGHT NOTICE: (c) 2014 Distinct Corporation and/or its suppliers. All
rights reserved.
TRADEMARK NOTICE: "Distinct" and the names of Distinct products or processes
and all Distinct logos are trademarks or registered trademarks or service marks
or trade dress of Distinct Corporation.
DISTINCT CORPORATION
3315 Almaden Expressway
San Jose, California 95118 - U.S.A.
(02/2014)