DISTINCT(R) CORPORATION LICENSE AGREEMENT for DISTINCT RPC/XDR for Java Client Run Time for Server Installation

 

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.

 

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.

 

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, Libya, North Korea, Iran, Serbia, 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 and construed under the laws of the State of California, U.S.A. for contracts entered into and to be performed entirely within the State of California, without reference to conflicts of laws. 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) 2009 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, Libya, North Korea, Iran, Serbia, 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 and construed under the laws of the State of California, U.S.A. for contracts entered into and to be performed entirely within the State of California, without reference to conflicts of laws. 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) 2009 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.

(12/09)