MICROSOFT CORPORATION LICENSE AGREEMENT FOR BETA SOFTWARE
IMPORTANT: This is a legal agreement ("Agreement") between you (either an individual or an entity), the end user ("Recipient"), and Microsoft Corporation ("Microsoft"). BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE WHICH ACCOMPANIES THIS AGREEMENT (IDENTIFIED BELOW), WHICH INCLUDES COMPUTER SOFTWARE AND MAY INCLUDE ASSOCIATED MEDIA, PRINTED MATERIALS, AND "ONLINE" OR ELECTRONIC DOCUMENTATION (COLLECTIVELY, THE "SOFTWARE"), YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL, COPY OR USE THE SOFTWARE.
For purposes of this Agreement, each Product and any accompanying software shall be collectively referred to as the "Software". The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold. Each Product may be accompanied by a license agreement, in which case such license agreement shall supercede the terms of this Agreement only to the extent of any inconsistency. With regard to terms that are not inconsistent, or in the absence of such separate license agreement, this Agreement shall control.
1. GRANT OF LICENSE. This Agreement grants Licensee the following rights provided that Licensee complies with all terms and conditions of this Agreement:
(a) Microsoft grants to Licensee a limited, non-exclusive, nontransferable, royalty-free license to install and use one copy of the executable code of the Software on a single CPU residing on Licensee's premises, solely to test the compatibility of Licensee's application or other product(s) which operate in conjunction with the Product and to evaluate the Product for the purpose of providing feedback thereon to Microsoft. All other rights are reserved to Microsoft. Licensee shall not rent, lease, sell, sublicense, assign, or otherwise transfer the Software. Licensee may not reverse engineer, decompile or disassemble the Software except and only to the extent that this limitation is expressly prohibited by applicable law notwithstanding this limitation. Microsoft and its suppliers shall retain title and all ownership rights to the Software, and this Agreement shall not be construed in any manner as transferring any rights of ownership or license to the Software or to the features or information therein, except as specifically stated herein.
(b) Licensee agrees to provide reasonable feedback to Microsoft, including but not limited to usability, bug reports and test results, with respect to Product testing. Licensee will use reasonable efforts to review and comment on all documentation supplied. All bug reports, test results and other feedback made by Licensee shall be the property of Microsoft and may be used by Microsoft for any purpose. Due to the nature of the development work, Microsoft is not certain if errors or discrepancies in the Products may be corrected.
(c) Licensee may disclose the Software only to its employees who have a need to know in order to accomplish the purposes identified in Section 1(a), and such employees' use of the Software shall take place solely at Licensee's site. Licensee will have executed appropriate written agreements with its employees sufficient to enable it to comply with the terms of this Agreement. Licensee agrees that, for a period of up to six (6) months after commercial release of the Product, it will maintain a list of all employees who have had access hereunder to the Software or related information and provide such list to Microsoft upon Microsoft's request.
(d) In the event Microsoft, in its sole discretion, elects to provide deliveries of Software to more than one individual employed by Licensee (if Licensee is not a single individual), each such recipient shall be entitled to exercise the rights granted in this Agreement, and shall be bound by the terms and conditions herein.
2. TERM OF AGREEMENT. The term of this Agreement shall commence on the date installed by Licensee and shall continue until terminated by Microsoft in writing at any time, with or without cause. The license granted in Section 1 with respect to any Product will terminate without notice upon the commercial release of such Product, unless terminated earlier by Microsoft. Upon the termination of this Agreement, Licensee shall promptly return to Microsoft, or certify destruction of, all full or partial copies of the Software and related materials provided by Microsoft. The following Sections shall survive termination or expiration of this Agreement (either in its entirety or with respect to any Product): Section 5 with respect to any information that has not been made public by Microsoft as of the commercial release of any Product, and Sections 7, 8, 9, and 10.
3. COST OF TESTING. There is no charge to Licensee for testing of the Software. Microsoft shall bear all transportation expenses relating to the shipment of the Software to Licensee's place of business and Licensee will pay any return transportation expenses.
4. PRODUCT MAINTENANCE/UPDATES. Microsoft is not obligated to provide maintenance, technical support or updates to Licensee for Software licensed pursuant to this Agreement. However, Microsoft may, in its sole discretion, provide further pre-release versions, technical support, updates and/or supplements of any Product and/or related information ("Updates") to Licensee hereunder, in which case such Updates shall also be deemed to be included in the "Product" and the "Software", and therefore governed by this Agreement, unless other terms of use are provided by Microsoft with such Updates. In no event shall Microsoft be obligated to provide Licensee a copy of the commercial release version of any Product in connection with Licensee's participation in the testing program. Microsoft is not obligated to make any Product commercially available.
5. CONFIDENTIALITY. The Products, including their existence and features, and related information, including this Agreement, are proprietary and confidential information to Microsoft and its suppliers. Licensee agrees not to disclose or provide the Software, documentation, or any related information (including the Product features or the results of use or testing) to any third party, or to use the Software for any purpose other than as provided in this Agreement. However, Licensee may disclose confidential information in accordance with judicial or other governmental order, provided Licensee shall give Microsoft reasonable written notice prior to such disclosure and shall comply with any applicable protective order or equivalent. Further, Licensee shall not be liable to Microsoft for disclosure of information which Licensee can prove (1) is already known to Licensee without an obligation to maintain the same as confidential; (2) becomes publicly known through no wrongful act of Licensee; (3) is rightfully received from a third party without breach of an obligation of confidentiality owed to Microsoft; or (4) is independently developed by Licensee.
6. INTELLECTUAL PROPERTY RIGHTS. All title and intellectual property rights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, text and "applets" incorporated into the Software), and any copies Licensee is permitted to make herein are owned by Microsoft or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the Software are the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants Licensee no rights to use such content. If this Software contains documentation which is provided only in electronic form, Licensee may print one copy of such electronic documentation. Licensee may not copy the printed materials accompanying the Software. All rights not expressly granted are reserved by Microsoft.
7. DISCLAIMER OF WARRANTIES. The Software is deemed accepted by Licensee. Each Product constitutes pre-release code and may be changed substantially before commercial release. To the maximum extent permitted by applicable law, Microsoft and its suppliers provide the Software and any (if any) support services related to the Software ("Support Services") AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, either express, implied or statutory, including, but not limited to, any (if any) implied warranties or conditions of merchantability, of fitness for a particular purpose, of lack of viruses, of accuracy or completeness of responses, of results, and of lack of negligence or lack of workmanlike effort, all with regard to the Software, and the provision of or failure to provide support services. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE. The entire risk as to the quality, or arising out of the use or performance, of the Software and documentation remains with Licensee.
8. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. To the maximum extent permitted by applicable law, in no event shall Microsoft or its suppliers be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits or confidential or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the Software, the provision of or failure to provide Support Services, or otherwise under or in connection with any provision of this Agreement, even in the event of the fault, tort (including negligence), strict liability, breach of contract or breach of warranty of Microsoft or any supplier, and even if Microsoft or any supplier has been advised of the possibility of such damages.
9. LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any damages that Licensee might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of Microsoft and any of its suppliers under any provision of this Agreement and Licensee's exclusive remedy for all of the foregoing shall be limited to the greater of the amount actually paid by Licensee for the Software or Five Dollars (US$5.00). The foregoing limitations, exclusions and disclaimers (including Sections 7 and 8 above) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
10. GOVERNING LAW/JURISDICTION/ATTORNEYS' FEES. This Agreement shall be construed and controlled by the laws of the State of Washington, and Licensee consents to exclusive jurisdiction and venue in the federal courts sitting in King County, Washington, unless no federal jurisdiction exists, in which case Licensee consents to exclusive jurisdiction and venue in the Superior Court of King County, Washington. Licensee waives all defenses of lack of personal jurisdiction and forum nonconveniens. Process may be served on either party in the manner authorized by applicable law or court rule. If either party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees, costs and other expenses.
11. U.S. GOVERNMENT RIGHTS. All Software provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the rights and restrictions described elsewhere herein. All Software provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 is provided with RESTRICTED RIGHTS as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable.
12. EXPORT RESTRICTIONS. The Software is intended for distribution only in the United States (including Puerto Rico, Guam and all other territories, dependencies and possessions of the United States) and Canada. Export of the Software from the United States is regulated under "EI controls" of the Export Administration Regulations (EAR, 15 CFR 730-744) of the U.S. Commerce Department, Bureau of Export Administration (BXA). A license is required to export the Software outside the United States or Canada. Licensee agrees that Licensee will not directly or indirectly export or re-export the Software (or portions thereof) to any country, other than Canada, or to any person or entity subject to U.S. export restrictions without first obtaining a Commerce Department export license. Licensee warrants and represents that neither the BXA nor any other U.S. federal agency has suspended, revoked, or denied Licensee's export privileges. Licensee further agrees not to export or re-export the Software (i) to any country to which the U. S. has embargoes or restricted the export of goods or services which currently include but are not necessarily limited to Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria, or to any national of any such country, wherever located, who intends to transmit or transport the Software back to such country; (ii) to any person or entity who Licensee knows or has reason to know will utilize the Software in the design, development or production of nuclear, chemical or biological weapons; or (iii) to any person or entity who Licensee knows or has reason to know has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government.
13. NOTE ON JAVA SUPPORT. THE SOFTWARE MAY CONTAIN SUPPORT FOR PROGRAMS WRITTEN IN JAVA. JAVA TECHNOLOGY IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS ONLINE 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 MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF JAVA TECHNOLOGY COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. Sun Microsystems, Inc. has contractually obligated Microsoft to make this disclaimer.
14. ENTIRE AGREEMENT. This Agreement constitutes the complete and exclusive agreement between Microsoft and Licensee with respect to the subject matter hereof, and supercedes all prior or contemporaneous oral or written communications, proposals, representations, understandings, or agreements not specifically incorporated herein. This Agreement may not be amended except in a writing duly signed by an authorized representative of Microsoft and Licensee.
