________________________________________________________________________________ ATTENTION: USE OF THE SOFTWARE IS SUBJECT TO THE HP Tru64 UNIX Version 5.1B-4 Consolidated Patch Kit SOFTWARE LICENSE AGREEMENT BELOW. YOU MUST REVIEW THE AGREEMENT AND EITHER ACCEPT OR NOT ACCEPT THE AGREEMENT. IF YOU DO NOT ACCEPT THE AGREEMENT, YOU MAY NOT USE THE SOFTWARE. ________________________________________________________________________________ HP IS WILLING TO LICENSE THE SOFTWARE IDENTIFIED ABOVE (THE "SOFTWARE") INCLUDING, WITHOUT LIMITATION, ANY DOCUMENTATION AND ANY ANCILLARY SOFTWARE BUNDLED WITH OR EMBEDDED IN THE SOFTWARE (COLLECTIVELY, THE "ANCILLARY SOFTWARE"), TO YOU SUBJECT TO THE SOFTWARE LICENSE TERMS AND THE APPLICABLE "LIMITED WARRANTY STATEMENT" PROVIDED WITH THE SOFTWARE. HP HAS IDENTIFIED ANCILLARY SOFTWARE BY EITHER NOTING THE RELEVANT PARTY'S OWNERSHIP WITHIN EACH ANCILLARY SOFTWARE PROGRAM FILE AND/OR BY PROVIDING INFORMATION IN THE "ReleaseNotes.pdf" FILE THAT IS PROVIDED AS PART OF THE SOFTWARE. YOUR USE OF ANY ANCILLARY SOFTWARE SHALL BE GOVERNED BY THAT PARTY'S LICENSE AGREEMENT ("ANCILLARY SOFTWARE LICENSE") AND NOT BY THIS AGREEMENT. THE LICENSES FOR THE ANCILLARY SOFTWARE ARE INCLUDED IN SUCH ANCILLARY SOFTWARE AND/OR SET FORTH IN THE "ReleaseNotes.pdf " FILE THAT IS PROVIDED AS PART OF THE SOFTWARE. IF YOU CHOOSE TO ACCEPT THIS AGREEMENT WITHOUT REVIEWING SUCH ANCILLARY SOFTWARE LICENSES OR OTHER TERMS, YOU WILL BE DEEMED TO HAVE ACCEPTED SUCH ANCILLARY LICENSES OR OTHER TERMS. BY USING THE SOFTWARE YOU INDICATE YOUR ACCEPTANCE OF THE SOFTWARE LICENSE TERMS AND THE APPLICABLE WARRANTY STATEMENTS CONTAINED IN OR OTHERWISE ACCOMPANYING THE SOFTWARE, AS WELL AS THE TERMS AND CONDITIONS ACCOMPANYING THE ANCILLARY SOFTWARE SET FORTH IN THE ReleaseNotes.pdf FILE. IF YOU DO NOT ACCEPT SUCH SOFTWARE LICENSE AND WARRANTY STATEMENT TERMS, AS WELL AS THE TERMS AND CONDITIONS ACCOMPANYING THE ANCILLARY SOFTWARE OR SET FORTH THE ReleaseNotes.pdf FILE, THEN YOU ARE NOT GRANTED A LICENSE TO THE SOFTWARE, YOU ARE NOT AUTHORIZED TO USE THE SOFTWARE, AND YOU MAY NOT DOWNLOAD THE SOFTWARE. ================================================================================ NOTICE: This software is licensed, not sold, if you do not agree to these terms, you may not use the software. ================================================================================ 1. DEFINITIONS a) "Use" means downloading, installing, storing, executing, or displaying Software on a Device. b) "Products" means Software, documentation, accessories, supplies, and upgrades that are determined by HP to be available from HP upon receipt of Customer's order. c) "Software License" means the Software license grant and general license terms set forth herein. 2. LICENSE GRANT a) Provided that Customer has a valid software license to use HP Tru64 UNIX Version 5.1B-4 (as described below), HP grants Customer a world-wide, non-exclusive license to Use the object code version of the Software so long as it is used solely in conformance with: 1) the terms set forth herein; and 2) HP's third party suppliers' terms that accompany the Software. In the event of a conflict, the third party suppliers' terms that accompany the Software will take precedence over the terms set forth herein. The terms applicable to this transaction in total are referred to as the "Agreement". A valid software license to use HP Tru64 UNIX Version 5.1B-4 can be purchased separately or through the ownership of a valid software update license which can be purchased separately or via an update support agreement which includes license to use, license subscription, or rights to use new versions of software. b) All Software Licenses will be perpetual unless terminated or transferred in accordance with Section 3. g). c) If Customer is an HP authorized reseller, Customer may sublicense the Software to an end-user for its Use or (if applicable) sublicense the Software to an HP authorized reseller for subsequent distribution to an end- user for its Use. These sublicenses must incorporate the terms of this Software License in a written sublicense agreement, which will be made available to HP upon request. If Customer is not an HP authorized reseller, Customer may not sublicense the Software unless otherwise agreed to by HP in writing. e) HP, or its designee(s), shall, during regular business hours at Customer's offices and in such a manner that does not interfere with Customer's normal business activities, have the right to inspect and audit, or have a third party perform an inspection and audit, the number of copies of Software Used or distributed by Customer, the computers on which the Software, if any, is installed and the number of users Using any such Software. If any audit discloses underpayments of five percent (5%) or more of the amount of license fees Customer should have actually paid to HP for the valid software license to use HP Tru64 UNIX Version 5.1B-4 entitling Customer to Use the Software, Customer shall bear all of the costs of the audit. HP's audit rights shall not terminate or expire until three (3) years after termination or expiration of this Agreement. 3. GENERAL LICENSE TERMS a) Software is owned and copyrighted by HP or by third party suppliers. Customer's Software License confers no title or ownership and is not a sale of any rights in the Software. Third party suppliers are intended beneficiaries under this Agreement and may protect their rights in the Software directly against Customer in the event of any infringement. b) Unless otherwise permitted in writing by HP, Customer may only make copies or adaptations of the Software for archival purposes or when copying or adaptation is an essential step in the authorized Use of the Software on a backup Device, provided that copies and adaptations are used in no other manner and provided further that the Use on the backup Device is discontinued when the original or replacement Device becomes operable. c) Customer must reproduce all copyright notices and other proprietary legends in or on the original Software on all permitted copies or adaptations. Customer may not copy the Software onto any public or distributed network. d) Subject to Section 3.b), above, Bundled Software provided to Customer may only be used when operating the Device in which the Bundled Software was installed by HP in configurations as sold or subsequently upgraded by HP. e) Updates, upgrades or other enhancements are only available under HP Support agreements. HP reserves the right to require additional licenses and fees for Use of the Software on Devices other than the Devices in which the Bundled Software were installed by HP. f) Customer will not modify, disassemble or decompile the Software without HP's prior written consent. Where Customer has other rights under statute, Customer will provide HP with reasonably detailed information regarding any intended disassembly or decompilation. Customer will not decrypt the Software unless necessary for legitimate use of the Software. g) Customer's Software License is transferable only upon HP's prior written authorization and payment to HP of any applicable fee(s). Upon transfer of the Software License, Customer will immediately deliver all copies of the Software to the transferee. The transferee must agree in writing to the terms of Customer's Software License. All Software License terms will be binding on involuntary transferees, notice of which is hereby given. Any transfer of the Software by the Customer in accordance with the provisions of this Section 3.g) shall not relieve Customer of any liability for the performance of Customer's obligations under this Agreement. Customer's right to Use the Software License will automatically terminate upon transfer. h) HP may terminate Customer's or any transferee's or sublicensee's Software License upon notice for failure to comply with any applicable Agreement terms. Immediately upon termination, the Software and all copies of the Software will be destroyed or returned to HP. Copies of the Software that are merged into adaptations, except for individual pieces of data in Customer's or transferee's or sublicensee's database, will be removed and destroyed or returned to HP. With HP's written consent, one copy of the Software may be retained subsequent to termination for archival purposes. Customer may terminate this Agreement by returning the Software to HP. i) In the following provision regarding Software Licenses to the U.S. Government, the term "Customer" means HP's direct purchaser, any entity or individual sublicensing the Software, and the end-user. 1) If Software is licensed for use in the performance of a U.S government prime contract or subcontract, Customer agrees that Software has been developed entirely at private expense. Customer agrees that Software, and any derivatives or modifications, is adequately marked when the Restricted Rights Legend below is affixed to the Software or to its storage media and is perceptible directly or with the aid of a machine or device. Customer agrees to conspicuously put the following legend on the Software media with Customer's name and address added below the notice: ================================================================================ RESTRICTED RIGHTS LEGEND Use, duplication or disclosure is subject to HP standard commercial license terms and for non-DOD Departments and Agencies of the U.S. Government, the restrictions as set forth in FAR 52.227-19(c)(1-2)(Jun 1987). Hewlett-Packard Company 3000 Hanover Street Palo Alto, CA 94304 U.S.A. Copyright (c) 19__ or 20__ Hewlett-Packard Company. All Rights Reserved ================================================================================ 2) Customer further agrees that Software is delivered and licensed as "Commercial computer software" as defined in DFARS 252.227-7014 (Jun 1995) or as a "commercial item" as defined in FAR 2.101(a), or as "Restricted computer software" as defined in FAR 52.227-19 (Jun 1987) (or any equivalent agency regulation or contract clause), whichever is applicable. The Customer agrees that it has only those rights provided for such Software by the applicable FAR or DFARS clause or the HP standard software agreement for the product involved. 4. GENERAL a) Customer may not assign or transfer this Agreement or any rights or obligations hereunder without prior written consent of HP. Any such attempted assignment or transfer will be null and void. HP may terminate this Agreement in the event of any such attempted assignment or transfer. b) Customer agrees and certifies that the Software, HP licensed Products, technology or technical data obtained hereunder, will not be exported, re-exported or imported except as authorized and permitted by the laws and regulations for obtaining required export and import authorizations. HP may terminate this Agreement if Customer is in violation of any applicable laws or regulations. Customer agrees to indemnify and hold HP and its suppliers harmless from any claims arising from any breach of this Section by Customer or any of its directors, officers, employees, subdistributors, customers or any third party to whom Customer provides access to the Software. c) Disputes arising in connection with this Agreement will be governed by the laws of the country and locality in which HP accepts the order. For orders accepted in the United States, disputes will be governed by the laws of the state of California. d) If any term or provision herein is determined to be illegal or unenforceable, the validity or enforceability of the remainder of the terms or provisions herein will remain in full force and effect. Provisions herein which by their nature extend beyond the termination of any license of Software will remain in effect until fulfilled. e) These HP Software License Terms supersede any previous communications, representations or agreements between the parties, whether oral or written, regarding transactions hereunder. Customer's additional or different terms and conditions will not apply. These HP Software License Terms may not be changed except by an amendment signed by an authorized representative of each party. f) The waiver or failure of either party to exercise in any respect any right provided for in the Agreement shall not be deemed a waiver of any further right under this Agreement. LIMITED WARRANTY STATEMENT ========================== HP SOFTWARE PRODUCT DURATION OF LIMITED WARRANTY 90 Days {MATCH TO HP WARRANTY CODE} Scope: The limited warranty is limited to the HP owned software portion of the HP software product ("Software"). The warranty for any other software portion of the HP software product ("Ancillary Software"), if any, shall be governed by the warranty terms provided with the Ancillary Software and to the extent allowed by local law HP is providing the Ancillary Software "AS-IS" WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, AND HP SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, TITLE, ACCURACY OF INFORMATIONAL CONTENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE ANCILLARY SOFTWARE; THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE ANCILLARY SOFTWARE IS ASSUMED BY YOU. Software Limited Warranty: HP warrants to you that the Software will not fail to execute its programming instructions after the date of purchase, for the period specified above, due to defects in material and workmanship when properly installed and used. If HP receives notice of such defects during the warranty period, HP will replace Software that does not execute its programming instructions due to such defects. HP does not warrant that the operation of Software will be uninterrupted or error free. If HP is unable, within a reasonable time, to repair or replace any product to a condition as warranted, you will be entitled to a refund of the purchase price upon prompt return of the product. Exclusions: This limited warranty does not apply to defects resulting from (a) improper or inadequate maintenance, (b) unauthorized modification or misuse, or (c) operation outside of the published environmental specifications for the product or otherwise in an unclean environment. Disclaimer: TO THE EXTENT ALLOWED BY LOCAL LAW, THE ABOVE WARRANTIES ARE EXCLUSIVE AND NO OTHER WARRANTY OR CONDITION, WHETHER WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED. HP SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, TITLE, ACCURACY OF INFORMATIONAL CONTENT, AND FITNESS FOR A PARTICULAR PURPOSE. HP DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY YOU. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY HP OR HP'S AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. Some jurisdictions do not allow limitations on the duration of an implied warranty, so the above limitation or exclusion might not apply to you to the extent prohibited by such local laws. This warranty gives you specific legal rights and you might also have other rights that vary from country to country, state to state, or province to province. Limitation of Liability: TO THE EXTENT ALLOWED BY LOCAL LAW, THE REMEDIES IN THIS WARRANTY STATEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES. EXCEPT TO THE EXTENT PROHIBITED BY LOCAL LAW, IN NO EVENT WILL HP OR ITS SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUPPLIERS BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES (INCLUDING LOST PROFIT, LOST DATA, OR DOWNTIME COSTS), ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SOFTWARE, WHETHER BASED IN WARRANTY, CONTRACT, TORT OR OTHER LEGAL THEORY, AND WHETHER OR NOT HP WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SOFTWARE IS NOT SPECIFICALLY DESIGNED, MANUFACTURED OR INTENDED FOR USE IN THE PLANNING, CONSTRUCTION, MAINTENANCE, OR DIRECT OPERATION OF A NUCLEAR FACILITY, AIRCRAFT NAVIGATION OR AIRCRAFT COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS. CUSTOMER IS SOLELY LIABLE IF THE SOFTWARE IS USED FOR THESE APPLICATIONS. CUSTOMER WILL INDEMNIFY AND HOLD HP HARMLESS FROM ALL LOSS, DAMAGE, EXPENSE OR LIABILITY IN CONNECTION WITH SUCH USE. IN ANY CASE, HP'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR U.S.$5.00. Your use of the Software is entirely at your own risk. Some jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, so the above limitation may not apply to you to the extent prohibited by such local laws. Note: EXCEPT TO THE EXTENT ALLOWED BY LOCAL LAW, THESE WARRANTY TERMS DO NOT EXCLUDE, RESTRICT OR MODIFY, AND ARE IN ADDITION TO, THE MANDATORY STATUTORY RIGHTS APPLICABLE TO THE LICENSE OF THE SOFTWARE TO YOU; PROVIDED, HOWEVER, THAT THE CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS SPECIFICALLY DISCLAIMED AND SHALL NOT GOVERN OR APPLY TO THE SOFTWARE PROVIDED IN CONNECTION WITH THIS WARRANTY STATEMENT. BY PRESSING THE CHARACTER "y" AND USING THE SOFTWARE YOU INDICATE YOUR ACCEPTANCE OF THE AGREEMENT. IF YOU PRESS THE CHARACTER "n" AND DO NOT ACCEPT THE AGREEMENT, THEN YOU ARE NOT GRANTED A LICENSE TO THE SOFTWARE, YOU ARE NOT AUTHORIZED TO USE THE SOFTWARE, AND YOU MAY NOT DOWNLOAD THE SOFTWARE ================================================================================