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SOFTWARE LICENSE AND USER AGREEMENT
CAREFULLY READ ALL TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AND USER AGREEMENT (THE "AGREEMENT") PRIOR TO INSTALLING THE SOFTWARE DESCRIBED BELOW. BY INSTALLING THE SOFTWARE AND USING THE PRODUCTS AND SERVICES DESCRIBED BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
1. LICENSE: Document Systems, Inc. ("DSI") hereby grants to you, and you hereby accept from DSI, a non-exclusive license to use the Products (as defined in Section 2 below) on the Designated Computer (as defined in Section 3 below) in connection with the provision of the Services (as defined in Section 4 below), subject to the terms and conditions of this Agreement.
2. PRODUCTS: As used in this Agreement, the term "Products" shall mean the following: (i) the binary code version only of the DSI LoanMagicTM, DocMagic(r), and any other related or complementary lead tracking, loan origination, loan document preparation or other computer program(s) accompanying this Agreement, whether accessed electronically or embedded on diskette, CD-ROM or other media (collectively, the "Software"); (ii) the published user manuals and related documentation that are made available for the Software (the "Documentation"); and (iii) authorized revisions which DSI, in its sole discretion, releases as updates of the Software or the Documentation from time to time (the "Updates"). Nothing in this Agreement will entitle you to receive the source code of the Software or the Updates, in whole or in part.
3. DESIGNATED COMPUTER: As used in this Agreement, the term "Designated Computer" shall mean a single computer processing unit on which you initially load and use the Software and any related Updates. You must identify the manufacturer and serial number of the Designated Computer in the manner established by DSI. You may use the Software and any related Updates only on the Designated Computer while you possess and operate the Designated Computer. If the Designated Computer becomes temporarily inoperable, you may load and use the Software and any related Updates on another of your computers until the Designated Computer becomes operable, but permanent use on such other computer will require DSI's prior approval.
4. SERVICES: As used in this Agreement, the term "Services" shall mean any services provided by DSI in connection with the Software. DSI may, in its sole and absolute discretion, add, delete or change some or all of the Services from time to time. DSI does not guarantee continuous or uninterrupted access to the Services.
5. USE: You may use the Products only for your own internal purposes and business operations. You may not use the Software and any related Updates as a remote database, file server or as part of any other multi-user system unless the Products are expressly identified as other than a "single-user version," in which case the Designated Computer may be used to provide remote database, file server or other multi-user system services strictly as described in the Documentation. You may make one additional copy of the Software and any related Updates exclusively for archival purposes. You agree to reproduce and maintain all confidentiality and proprietary notes with or on each of this copy. The copyright laws protect the Products in their entirety. The Software and any related Updates also contain DSI trade secrets, and you may not decompile, reverse engineer, disassemble, or otherwise reduce the Software and any related Updates to human-perceivable form or disable any functionality that limits the use of the Software and any related Updates. You may not modify, adapt, translate, rent, sublicense, assign, loan, resell for profit, or distribute the Products or related materials or create derivative works based upon the Products or any part thereof.
6. AGREEMENT TO PAY: You agree to pay DSI's then-current fees for your use of the Products and the Services in accordance with DSI's schedule of fees, the terms and conditions of which are incorporated herein by this reference. You are responsible for paying all applicable taxes and all hardware, software, service and other costs you incur in using the Products and the Services.
7. SATISFACTION GUARANTEED: If within ninety (90) days after the date of your initial installation of the Software or any related Updates, you are not completely satisfied with the Products, DSI's entire liability and your exclusive remedy shall be at DSI's option either: (i) replacement of any defective media on which the Software and any related Updates are embedded, or (ii) refund of the full amount you paid for the Products and termination this Agreement.
8. DISCLAIMER OF WARRANTIES: EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN A SEPARATE AGREEMENT WITH DSI, DSI DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE, LAW, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE PRODUCTS AND THE SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY DSI OR ITS REPRESENTATIVES (AS DEFINED IN SECTION 9 BELOW) OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF YOUR INSTALLATION OF THE SOFTWARE OR ANY RELATED UPDATES. HOWEVER, SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS AS WELL, WHICH VARY FROM STATE TO STATE.
9. LIMITATION OF LIABILITY AND DAMAGES: THE ENTIRE LIABILITY THAT DSI AND ITS REPRESENTATIVES (AS DEFINED BELOW) MAY INCUR IN ANY ACTION OR PROCEEDING FOR ANY REASON SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE PRODUCTS AND THE SERVICES PURCHASED FROM DSI OR ITS AUTHORIZED RESELLERS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DSI AND ITS AFFILIATES, LICENSORS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, DISTRIBUTORS, DEALERS OR SUPPLIERS ("REPRESENTATIVES") ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR INVESTMENT, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF DSI OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME STATES DO NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DSI AND YOU. DSI WOULD NOT BE ABLE TO PROVIDE THE PRODUCTS OR THE SERVICES WITHOUT SUCH LIMITATIONS.
10. OWNERSHIP: All trademark, service marks, patents, copyrights, trade secrets and other proprietary rights in or related to the Products are and will remain the exclusive property of DSI or its licensors, whether or not specifically recognized or perfected under local applicable law. You will not acquire any right to the Products except the limited use rights specified in this Agreement. You further acknowledge that the Products embody confidential information owned by DSI or its licensors and agree to take reasonable steps to protect the confidentially of such information.
11. TERMINATION: You may terminate this Agreement, without right to refund, by notifying DSI of such termination. DSI may terminate this Agreement, upon reasonable notice and without judicial or administrative resolution, if you or any of your employees or consultants breach any term or condition hereof. Upon the termination of this Agreement for any reason, all rights granted to you hereunder will cease, and you must promptly (i) purge the Software and any related Updates from all your computer systems, storage media and other files, (ii) destroy the Products and all copies thereof and (iii) deliver to DSI, upon request, an affidavit which certifies that you have complied with these termination obligations.
12. PRIVACY: DSI agrees that any and all "Nonpublic Personal Information" disclosed to DSI by you or on your behalf shall be used by DSI only as necessary to provide the Services you request and to otherwise fulfill its obligations under this Agreement and shall not be disclosed to any other person, unless such disclosure is initiated by you. DSI agrees to limit access to Nonpublic Personal Information to those employees or agents who reasonably need such information in order to allow DSI to provide the Services you request and to otherwise fulfill its obligations under this Agreement and to require such persons to maintain the confidentiality thereof. "Nonpublic Personal Information" has the meaning set forth in the Gramm-Leach-Bliley Act (the "GLB Act") (codified at 15 U.S.C. §§ 6801-09) and any federal regulations or rules that implement the GLB Act.
13. GENERAL: You agree to comply with all applicable laws, statutes, ordinances and regulations regarding the use of the Products and the Services. No agency, partnership, joint venture, employer-employer or franchiser-franchisee relationship is intended or created by this Agreement. All notices or approvals required or permitted under this Agreement must be in writing and shall be given by certified mail, postage prepaid and return receipt requested. Any waiver or modification of the Agreement will not be effective unless executed in writing and signed by the President of DSI. This Agreement will bind your successors-in-interest. This Agreement is governed in all respects by the laws of the State of California, without regard to conflict of laws principles. Both you and DSI submit to jurisdiction in California and further agree that any cause of action arising under this Agreement shall be brought in the appropriate court in Los Angeles County, California. If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the prevailing party(ies) shall be entitled to attorneys' fees and other costs incurred in that action or proceeding, in addition to any other relief to which it or they may be entitled. If any provision of this Agreement is held to be unenforceable, in whole or in part, such provision shall be struck and the remaining provisions of this Agreement shall be enforced. This Agreement sets forth the entire understanding and agreement between you and DSI with respect to the subject matter hereof.
14. INCORPORATION BY REFERENCE: By installing the Software and using the Products and Services described above, you also agree to the terms of (i) Sun Microsystems, Inc. Binary Code License Agreement, and (ii) the Supplemental License Terms applicable to Sun Microsystems, Inc.'s JavaTM Web Start Version 1.0.x (collectively, the "Java Agreement"). The Java Agreement, the terms of which are incorporated into this Agreement by this reference, is set forth in its entirety below and provides as follows:
Sun Microsystems, Inc.
Binary Code License Agreement
READ THE TERMS OF THIS AGREEMENT AND ANY PROVIDED SUPPLEMENTAL LICENSE TERMS (COLLECTIVELY "AGREEMENT") CAREFULLY BEFORE OPENING THE SOFTWARE MEDIA PACKAGE. BY OPENING THE SOFTWARE MEDIA PACKAGE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCESSING THE SOFTWARE ELECTRONICALLY, INDICATE YOUR ACCEPTANCE OF THESE TERMS BY SELECTING THE "ACCEPT" BUTTON AT THE END OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THESE TERMS, PROMPTLY RETURN THE UNUSED SOFTWARE TO YOUR PLACE OF PURCHASE FOR A REFUND OR, IF THE SOFTWARE IS ACCESSED ELECTRONICALLY, SELECT THE "DECLINE" BUTTON AT THE END OF THIS AGREEMENT.
1. LICENSE TO USE. Sun grants you a non-exclusive and non-transferable license for the internal use only of the accompanying software and documentation and any error corrections provided by Sun (collectively "Software"), by the number of users and the class of computer hardware for which the corresponding fee has been paid.
2. RESTRICTIONS. Software is confidential and copyrighted. Title to Software and all associated intellectual property rights is retained by Sun and/or its licensors. Except as specifically authorized in any Supplemental License Terms, you may not make copies of Software, other than a single copy of Software for archival purposes. Unless enforcement is prohibited by applicable law, you may not modify, decompile, or reverse engineer Software. You acknowledge that Software is not designed, licensed or intended for use in the design, construction, operation or maintenance of any nuclear facility. Sun disclaims any express or implied warranty of fitness for such uses. No right, title or interest in or to any trademark, service mark, logo or trade name of Sun or its licensors is granted under this Agreement.
3. LIMITED WARRANTY. Sun warrants to you that for a period of ninety (90) days from the date of purchase, as evidenced by a copy of the receipt, the media on which Software is furnished (if any) will be free of defects in materials and workmanship under normal use. Except for the foregoing, Software is provided "AS IS". Your exclusive remedy and Sun's entire liability under this limited warranty will be at Sun's option to replace Software media or refund the fee paid for Software.
4. DISCLAIMER OF WARRANTY. UNLESS SPECIFIED IN THIS AGREEMENT, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT THESE DISCLAIMERS ARE HELD TO BE LEGALLY INVALID.
5. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL SUN OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE SOFTWARE, EVEN IF SUN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event will Sun's liability to you, whether in contract, tort (including negligence), or otherwise, exceed the amount paid by you for Software under this Agreement. The foregoing limitations will apply even if the above stated warranty fails of its essential purpose.
6. Termination. This Agreement is effective until terminated. You may terminate this Agreement at any time by destroying all copies of Software. This Agreement will terminate immediately without notice from Sun if you fail to comply with any provision of this Agreement. Upon Termination, you must destroy all copies of Software.
7. Export Regulations. All Software and technical data delivered under this Agreement are subject to US export control laws and may be subject to export or import regulations in other countries. You agree to comply strictly with all such laws and regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export, or import as may be required after delivery to you.
8. U.S. Government Restricted Rights. If Software is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the Government's rights in Software and accompanying documentation will be only as set forth in this Agreement; this is in accordance with 48 CFR 227.7201 through 227.7202-4 (for Department of Defense (DOD) acquisitions) and with 48 CFR 2.101 and 12.212 (for non-DOD acquisitions).
9. Governing Law. Any action related to this Agreement will be governed by California law and controlling U.S. federal law. No choice of law rules of any jurisdiction will apply.
10. Severability. If any provision of this Agreement is held to be unenforceable, this Agreement will remain in effect with the provision omitted, unless omission would frustrate the intent of the parties, in which case this Agreement will immediately terminate.
11. Integration. This Agreement is the entire agreement between you and Sun relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter during the term of this Agreement. No modification of this Agreement will be binding, unless in writing and signed by an authorized representative of each party.
JAVATM 2 RUNTIME ENVIRONMENT (J2RE), STANDARD EDITION, VERSION 1.4.X
SUPPLEMENTAL LICENSE TERMS
These supplemental license terms ("Supplemental Terms") add to or modify the terms of the Binary Code License Agreement (collectively, the "Agreement"). Capitalized terms not defined in these Supplemental Terms shall have the same meanings ascribed to them in the Agreement. These Supplemental Terms shall supersede any inconsistent or conflicting terms in the Agreement, or in any license contained within the Software.
1. Software Internal Use and Development License Grant. Subject to the terms and conditions of this Agreement, including, but not limited to Section 4 (Java Technology Restrictions) of these Supplemental Terms, Sun grants you a non-exclusive, non-transferable, limited license to reproduce internally and use internally the binary form of the Software complete and unmodified for the sole purpose of designing, developing and testing your Java applets and applications intended to run on the Java platform ("Programs").
2. License to Distribute Software. Subject to the terms and conditions of this Agreement, including, but not limited to Section 4 (Java Technology Restrictions) of these Supplemental Terms, Sun grants you a non-exclusive, non-transferable, limited license to reproduce and distribute the Software, provided that (i) you distribute the Software complete and unmodified (unless otherwise specified in the applicable README file) and only bundled as part of, and for the sole purpose of running, your Programs, (ii) the Programs add significant and primary functionality to the Software, (iii) you do not distribute additional software intended to replace any component(s) of the Software (unless otherwise specified in the applicable README file), (iv) you do not remove or alter any proprietary legends or notices contained in the Software, (v) you only distribute the Software subject to a license agreement that protects Sun's interests consistent with the terms contained in this Agreement, and (vi) you agree to defend and indemnify Sun and its licensors from and against any damages, costs, liabilities, settlement amounts and/or expenses (including attorneys' fees) incurred in connection with any claim, lawsuit or action by any third party that arises or results from the use or distribution of any and all Programs and/or Software. (vi) include the following statement as part of product documentation (whether hard copy or electronic), as a part of a copyright page or proprietary rights notice page, in an "About" box or in any other form reasonably designed to make the statement visible to users of the Software: "This product includes code licensed from RSA Security, Inc.", and (vii) include the statement, "Some portions licensed from IBM are available at http://oss.software.ibm.com/icu4j/".
3. License to Distribute Redistributables. Subject to the terms and conditions of this Agreement, including but not limited to Section 4 (Java Technology Restrictions) of these Supplemental Terms, Sun grants you a non-exclusive, non-transferable, limited license to reproduce and distribute those files specifically identified as redistributable in the Software "README" file ("Redistributables") provided that: (i) you distribute the Redistributables complete and unmodified (unless otherwise specified in the applicable README file), and only bundled as part of Programs, (ii) you do not distribute additional software intended to supersede any component(s) of the Redistributables (unless otherwise specified in the applicable README file), (iii) you do not remove or alter any proprietary legends or notices contained in or on the Redistributables, (iv) you only distribute the Redistributables pursuant to a license agreement that protects Sun's interests consistent with the terms contained in the Agreement, (v) you agree to defend and indemnify Sun and its licensors from and against any damages, costs, liabilities, settlement amounts and/or expenses (including attorneys' fees) incurred in connection with any claim, lawsuit or action by any third party that arises or results from the use or distribution of any and all Programs and/or Software, (vi) include the following statement as part of product documentation (whether hard copy or electronic), as a part of a copyright page or proprietary rights notice page, in an "About" box or in any other form reasonably designed to make the statement visible to users of the Software: "This product includes code licensed from RSA Security, Inc.", and (vii) include the statement, "Some portions licensed from IBM are available at http://oss.software.ibm.com/icu4j/".
4. Java Technology Restrictions. You may not modify the Java Platform Interface ("JPI", identified as classes contained within the "java" package or any subpackages of the "java" package), by creating additional classes within the JPI or otherwise causing the addition to or modification of the classes in the JPI. In the event that you create an additional class and associated API(s) which (i) extends the functionality of the Java platform, and (ii) is exposed to third party software developers for the purpose of developing additional software which invokes such additional API, you must promptly publish broadly an accurate specification for such API for free use by all developers. You may not create, or authorize your licensees to create, additional classes, interfaces, or subpackages that are in any way identified as "java", "javax", "sun" or similar convention as specified by Sun in any naming convention designation.
5. Notice of Automatic Software Updates from Sun. You acknowledge that the Software may automatically download, install, and execute applets, applications, software extensions, and updated versions of the Software from Sun ("Software Updates"), which may require you to accept updated terms and conditions for installation. If additional terms and conditions are not presented on installation, the Software Updates will be considered part of the Software and subject to the terms and conditions of the Agreement.
6. Notice of Automatic Downloads. You acknowledge that, by your use of the Software and/or by requesting services that require use of the Software, the Software may automatically download, install, and execute software applications from sources other than Sun ("Other Software"). Sun makes no representations of a relationship of any kind to licensors of Other Software. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL SUN OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE OTHER SOFTWARE, EVEN IF SUN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. Trademarks and Logos. You acknowledge and agree as between you and Sun that Sun owns the SUN, SOLARIS, JAVA, JINI, FORTE, and iPLANET trademarks and all SUN, SOLARIS, JAVA, JINI, FORTE, and iPLANET-related trademarks, service marks, logos and other brand designations ("Sun Marks"), and you agree to comply with the Sun Trademark and Logo Usage Requirements currently located at http://www.sun.com/policies/trademarks. Any use you make of the Sun Marks inures to Sun's benefit.
8. Source Code. Software may contain source code that is provided solely for reference purposes pursuant to the terms of this Agreement. Source code may not be redistributed unless expressly provided for in this Agreement.
9. Termination for Infringement. Either party may terminate this Agreement immediately should any Software become, or in either party's opinion be likely to become, the subject of a claim of infringement of any intellectual property right.
For inquiries please contact: Sun Microsystems, Inc. 901 San Antonio Road, Palo Alto, California 94303
(LFI#109998/Form ID#011801)
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