| IMPORTANT. Read the following LMI Software License Agreement ("Agreement") | |
| completely. | |
| LUMINARY MICRO SOFTWARE LICENSE AGREEMENT | |
| This is a legal agreement between you (either as an individual or as an | |
| authorized representative of your employer) and Luminary Micro, Inc. ("LMI"). | |
| It concerns your rights to use this file and any accompanying written materials | |
| (the "Software"). In consideration for LMI allowing you to access the | |
| Software, you are agreeing to be bound by the terms of this Agreement. If you | |
| do not agree to all of the terms of this Agreement, do not download or use the | |
| Software. If you change your mind later, stop using the Software and delete | |
| all copies of the Software in your possession or control. Any copies of the | |
| Software that you have already distributed, where permitted, and do not destroy | |
| will continue to be governed by this Agreement. Your prior use will also | |
| continue to be governed by this Agreement. | |
| 1. LICENSE GRANT. LMI grants to you, free of charge, the non-exclusive, | |
| non-transferable right (1) to use the Software, (2) to reproduce the Software, | |
| (3) to prepare derivative works of the Software, (4) to distribute the Software | |
| and derivative works thereof in source (human-readable) form and object | |
| (machine-readable) form, and (5) to sublicense to others the right to use the | |
| distributed Software. If you violate any of the terms or restrictions of this | |
| Agreement, LMI may immediately terminate this Agreement, and require that you | |
| stop using and delete all copies of the Software in your possession or control. | |
| 2. COPYRIGHT. The Software is licensed to you, not sold. LMI owns the | |
| Software, and United States copyright laws and international treaty provisions | |
| protect the Software. Therefore, you must treat the Software like any other | |
| copyrighted material (e.g. a book or musical recording). You may not use or | |
| copy the Software for any other purpose than what is described in this | |
| Agreement. Except as expressly provided herein, LMI does not grant to you any | |
| express or implied rights under any LMI or third-party patents, copyrights, | |
| trademarks, or trade secrets. Additionally, you must reproduce and apply any | |
| copyright or other proprietary rights notices included on or embedded in the | |
| Software to any copies or derivative works made thereof, in whole or in part, | |
| if any. | |
| 3. SUPPORT. LMI is NOT obligated to provide any support, upgrades or new | |
| releases of the Software. If you wish, you may contact LMI and report problems | |
| and provide suggestions regarding the Software. LMI has no obligation | |
| whatsoever to respond in any way to such a problem report or suggestion. LMI | |
| may make changes to the Software at any time, without any obligation to notify | |
| or provide updated versions of the Software to you. | |
| 4. INDEMNITY. You agree to fully defend and indemnify LMI from any and | |
| all claims, liabilities, and costs (including reasonable attorney's fees) | |
| related to (1) your use (including your sub-licensee's use, if permitted) of | |
| the Software or (2) your violation of the terms and conditions of this | |
| Agreement. | |
| 5. HIGH RISK ACTIVITIES. You acknowledge that the Software is not fault | |
| tolerant and is not designed, manufactured or intended by LMI for incorporation | |
| into products intended for use or resale in on-line control equipment in | |
| hazardous, dangerous to life or potentially life-threatening 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 | |
| products could lead directly to death, personal injury or severe physical or | |
| environmental damage ("High Risk Activities"). You specifically represent and | |
| warrant that you will not use the Software or any derivative work of the | |
| Software for High Risk Activities. | |
| 6. PRODUCT LABELING. You are not authorized to use any LMI trademarks, | |
| brand names, or logos. | |
| 7. COMPLIANCE WITH LAWS; EXPORT RESTRICTIONS. You must use the Software | |
| in accordance with all applicable U.S. laws, regulations and statutes. You | |
| agree that neither you nor your licensees (if any) intend to or will, directly | |
| or indirectly, export or transmit the Software to any country in violation of | |
| U.S. export restrictions. | |
| 8. GOVERNMENT USE. Use of the Software and any corresponding | |
| documentation, if any, is provided with RESTRICTED RIGHTS. Use, duplication or | |
| disclosure by the Government is subject to restrictions as set forth in | |
| subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software | |
| clause at DFARS 252.227-7013 or subparagraphs (c)(l) and (2) of the Commercial | |
| Computer Software--Restricted Rights at 48 CFR 52.227-19, as applicable. | |
| Manufacturer is Luminary Micro, Inc., 2499 S. Capital of Texas Hwy Ste A-100, | |
| Austin, Texas 78746. | |
| 9. DISCLAIMER OF WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LMI | |
| EXPRESSLY DISCLAIMS ANY WARRANTY FOR THE SOFTWARE. THE SOFTWARE IS PROVIDED | |
| "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, | |
| WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A | |
| PARTICULAR PURPOSE, OR NON-INFRINGEMENT. YOU ASSUME THE ENTIRE RISK ARISING | |
| OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE, OR ANY SYSTEMS YOU DESIGN USING | |
| THE SOFTWARE (IF ANY). NOTHING IN THIS AGREEMENT MAY BE CONSTRUED AS A | |
| WARRANTY OR REPRESENTATION BY LMI THAT THE SOFTWARE OR ANY DERIVATIVE WORK | |
| DEVELOPED WITH OR INCORPORATING THE SOFTWARE WILL BE FREE FROM INFRINGEMENT OF | |
| THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. | |
| 10. LIMITATION OF LIABILITY. IN NO EVENT WILL LMI BE LIABLE, WHETHER IN | |
| CONTRACT, TORT, OR OTHERWISE, FOR ANY INCIDENTAL, SPECIAL, INDIRECT, | |
| CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR | |
| ANY LOSS OF USE, LOSS OF TIME, INCONVENIENCE, COMMERCIAL LOSS, OR LOST PROFITS, | |
| SAVINGS, OR REVENUES TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW. | |
| 11. CHOICE OF LAW; VENUE; LIMITATIONS. You agree that the statutes and | |
| laws of the United States and the State of Texas, USA, without regard to | |
| conflicts of laws principles, will apply to all matters relating to this | |
| Agreement or the Software, and you agree that any litigation will be subject to | |
| the exclusive jurisdiction of the state or federal courts in Austin, Travis | |
| County, Texas, USA. You agree that regardless of any statute or law to the | |
| contrary, any claim or cause of action arising out of or related to this | |
| Agreement or the Software must be filed within one (1) year after such claim or | |
| cause of action arose or be forever barred. | |
| 12. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement | |
| between you and LMI regarding the subject matter of this Agreement, and | |
| supersedes all prior communications, negotiations, understandings, agreements | |
| or representations, either written or oral, if any. This Agreement may only be | |
| amended in written form, executed by you and LMI. | |
| 13. SEVERABILITY. If any provision of this Agreement is held for any | |
| reason to be invalid or unenforceable, then the remaining provisions of this | |
| Agreement will be unimpaired and, unless a modification or replacement of the | |
| invalid or unenforceable provision is further held to deprive you or LMI of a | |
| material benefit, in which case the Agreement will immediately terminate, the | |
| invalid or unenforceable provision will be replaced with a provision that is | |
| valid and enforceable and that comes closest to the intention underlying the | |
| invalid or unenforceable provision. | |
| 14. NO WAIVER. The waiver by LMI of any breach of any provision of this | |
| Agreement will not operate or be construed as a waiver of any other or a | |
| subsequent breach of the same or a different provision. |