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EXHIBIT 10.21
MICROSOFT SQL SERVER (TM) VERSION 7.0
LICENSES: 1
END-USER LICENSE AGREEMENT
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SERVER LICENSE FOR MICROSOFT SERVER PRODUCTS
IMPORTANT-READ CAREFULLY: This End-User License Agreement ("EULA") is a legal
agreement between you (either an individual or a single entity) and Microsoft
Corporation for the Microsoft software product identified above, which includes
computer software and may include associated media, printed materials, and
"online" or electronic documentation ("SOFTWARE PRODUCT"). An amendment or
addendum to this EULA may accompany the SOFTWARE PRODUCT. BY INSTALLING,
COPYING, OR OTHERWISE USING THE SOFTWARE PRODUCT, YOU AGREE TO BE BOUND BY THE
TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT
INSTALL OR USE THE SOFTWARE PRODUCT; YOU MAY, HOWEVER, RETURN IT TO YOUR PLACE
OF PURCHASE FOR A FULL REFUND.
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The SOFTWARE PRODUCT is protected by copyright laws and international copyright
treaties, as well as other intellectual property laws and treaties. The SOFTWARE
PRODUCT is licensed, not sold.
1. GRANT OF LICENSE. This EULA grants you the following rights provided that
you comply with all terms and conditions of this EULA:
a. Types of Software. The SOFTWARE PRODUCT contains some or all of the
following types of software: "Server Software" that provides services
or functionality on a computer acting as a server (and, the computer
running the Server Software shall be referred to as the "Server"); and
"Client Software" that allows a computer, workstation, terminal,
handheld PC, pager, telephone, "smart phone," or other electronic
device (each of the foregoing a "Device") to access or utilize the
services or functionality provided by the Server Software. Several
copies of the Server Software and the Connector Software (applicable
to Microsoft Exchange Server only), each of which is compatible with a
different microprocessor architecture (such as the x86 architecture or
various RISC architectures), may be provided.
b. Installation-Server Software. At any given time, you may install one
copy of the Server Software for only one of those architectures on a
single computer. Client Software. You may install the Client Software
on any Device.
C. Use of the Server Software. You may use one copy of the Server
Software on one Server. You must acquire a separate Client Access
License for each unique Device which accesses or otherwise utilizes
the services or functionality of the Server Software, whether you use
the Client Software or any other software to do so, unless otherwise
noted in Section 2 below. This is known as using the Server Software
in "Per Seat Mode." However, you may elect to use the Server Software
for Microsoft SQL Server, Windows NT Server (except as specified
below), Site Server, Site Server Commerce Edition, or SNA Server (but
not Microsoft Exchange Server, Windows NT Server, Terminal Server
Edition, Systems Management Server, or BackOffice Server) in "Per
Server Mode" as defined below. If you choose Per Seat Mode, your
choice is permanent. You also need a Windows NT Workstation license to
access or utilize certain services or functionality of Windows NT
Server as described below.
d. Alternate Terms If You Elect to Use the Server Software In Per Server
Mode. In Per Server Mode, the maximum number of Devices that may
access or otherwise utilize the services or functionality of the
Server Software at a given point in time is equal to the number of
Client Access Licenses that you have acquired and designated for use
exclusively with that Server. Devices to which a Client Access License
has been designated may also access Server Software running in the Per
Server Mode, provided the additional access is within that Server's
maximum licensed capacity. You also have the right to change your use
of the Server Software to Per Seat Mode, but then this choice is
permanent. Consult the terms of your Client Access Licenses to
determine your rights with respect to such Client Access Licenses in
connection with such change.
e. Use of the Client Software. You may use the Client Software provided
that you acquire Client Access Licenses as required in Paragraphs 1(c)
and 1(d) above, and subject to any limitations set forth in Paragraph
2.
f. Not for Resale Software. If the SOFTWARE PRODUCT is labeled "Not for
Resale" or "NFR," then, notwithstanding Section 1 of this EULA, your
use of the SOFTWARE PRODUCT is limited to use for demonstration, test,
or evaluation purposes and you may not resell, or otherwise transfer
for value, the SOFTWARE PRODUCT.
(Continued)
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g. Academic Edition Software. If the SOFTWARE PRODUCT is identified as
"Academic Edition" or "AE," you must be a "Qualified Educational User"
to use the SOFTWARE PRODUCT. If you are not a Qualified Educational
User, you have no rights under this EULA. To determine whether you are
a Qualified Educational User, please contact the Microsoft Sales
Information Center/One Microsoft Way/Redmond, WA 98052-6399 or the
Microsoft subsidiary serving your country.
h. License Pack. If this package is a License Pack, you may install and
use additional copies of the Server Software and Connector Software,
if any, up to the number of copies specified above as "Licensed
Copies."
i. Installation on a Single Server. The SOFTWARE PRODUCT is licensed as a
single product. The Server Software components may not be separated
for use on more than one Server, unless otherwise provided herein. By
way of example, and not limitation, the foregoing restriction applies
to the Microsoft BackOffice Server product suite.
j. No "Multiplexing" or "Pooling." Use of software or hardware that
reduces the number of Devices directly accessing or utilizing the
Server Software (sometimes called "multiplexing" or "pooling" software
or hardware) does not reduce the number of Client Access Licenses
required; the required number of Client Access Licenses would equal
the number of distinct inputs to the multiplexing or pooling software
or hardware "front end."
k. Additional Software. Any software provided to you by Microsoft which
updates or supplements the original SOFTWARE PRODUCT is part of the
SOFTWARE PRODUCT and is governed by this EULA, unless other terms of
use are provided with such updates or supplements. Any software
provided to you along with the SOFTWARE PRODUCT that is associated
with a separate end-user license agreement is licensed to you under
the terms of that license agreement, except if this EULA specifically
sets forth the terms of use for such software then the terms set forth
in this EULA shall apply.
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
a. For all SOFTWARE PRODUCTS. Server Software Transfer. You may transfer
the Server Software to another computer, provided that it is
removed from the computer from which it is transferred. Rental. You
may not rent, lease, or lend the SOFTWARE PRODUCT. Transfer to Third
Party. The initial user of the SOFTWARE PRODUCT may make a one-time
permanent transfer of this EULA and SOFTWARE PRODUCT only directly to
an end user. This transfer must include all of the SOFTWARE PRODUCT
(including all component parts, the media and printed materials, this
EULA, and, if applicable, the Certificate of Authenticity). Such
transfer may not be by way of consignment or any other indirect
transfer. The transferee of such one-time transfer must agree to
comply with the terms of this EULA, including the obligation not to
further transfer this EULA and SOFTWARE PRODUCT. Notice to Users. You
shall inform all users of the SOFTWARE PRODUCT of the terms and
conditions of this EULA. Limitation on Reverse Engineering,
Decompilation, and Disassembly. You may not reverse engineer,
decompile, or disassemble the SOFTWARE PRODUCT, except and only to the
extent that such activity is expressly permitted by applicable law
notwithstanding this limitation. Performance or Benchmark Testing. You
may not disclose the results of any benchmark test of either the
Server Software or Client Software for Microsoft SQL Server, Microsoft
Exchange Server, or Microsoft Proxy Server to any third party without
Microsoft's prior written approval. Version Limitation. The Server
Software contains a certain version number (such as version "3.5").
This EULA permits you to install one copy of the Server Software with
the same (or a lower) version number as the Server Software version
number listed above on a single computer. If the SOFTWARE PRODUCT is
Microsoft BackOffice Server product suite, this EULA also permits you
to install one copy of a lower version of a Server Software component
that is contained in such product suite. Termination. Without
prejudice to any other rights, Microsoft may terminate this EULA if
you fail to comply with the terms and conditions of this EULA. In such
event, you must destroy all copies of the SOFTWARE PRODUCT and all of
its component parts. Consent to Use of Data. With respect to technical
information you provide to Microsoft as part of any (if any) support
services related to the SOFTWARE PRODUCT ("Support Services"), you
agree that Microsoft (and its affiliates and agents) may collect,
process, and use such information for its business purposes, including
for product support and development. Microsoft will not utilize such
technical information in a form that personally identifies you.
b. For Microsoft Windows NT Server (all editions)-Processor Limitation.
The Server Software may be used by no more than four (4) processors of
the Server at any one time (support for a greater number of processors
is available from authorized computer hardware vendors). Client
Access. You need a Client Access License for Windows NT Server in
order to access or otherwise utilize any of the following Windows NT
Server basic network/application services, components, or
functionality: File Services (accessing or managing files, or
accessing or managing disk storage), Printing Services (printing to a
printer managed by a Windows NT Server), Microsoft Message Queue
Server (sending or receiving messages from Microsoft Message Queue
Server), Microsoft Transaction Server (invoking component-based
applications managed by Microsoft Transaction Server), Remote Access
Service (accessing the server from a remote location through a
communications link), and Terminal Server Functionality (as defined
below). Note: Remote Access Service includes the use of Internet
Connection Services, including Internet Authentication Services
(validation or transference of a remote access request) or Connection
Point Services (remotely configuring the Microsoft Connection Manager
Client with new phone numbers or other data). You do not need a Client
Access License for Windows NT Server to access or otherwise utilize
any other Windows NT Server services or functionality. Note on
Microsoft Windows for Workgroups or Windows 95 Software. The media on
which Windows NT Server resides may contain a copy of Windows for
Workgroups or Windows 95 software. In order to install or use this
software, you must acquire a separate Windows for Workgroups or
Windows 95 license. Note on Microsoft FrontPage Software. Windows NT
Server contains Microsoft FrontPage software, which allows a single
user to develop and maintain an Internet/intranet Web site. You may
install and use one copy of Microsoft FrontPage on a single
Device. Note on Microsoft Site Server Express. You may copy and
distribute Microsoft Site Server Express on any Device within your
organization.
For Windows NT Server terminal server services and Windows NT Server,
Terminal Server Edition. In addition to the Client Access License for
Windows NT Server, you must also acquire a Windows NT Workstation
license for each Device using "Terminal Server Functionality," which
is defined as (a) third-party software that utilizes Windows NT Server
to display or use Windows-based or Windows NT-based applications on a
Device ("Third-Party Terminal Software"), and/or (b) the services of
Windows NT Server, Terminal Server Edition which display or use
Windows-based or Windows NT-based applications on a Device. Any Device
running a validly licensed copy of Windows NT Workstation has the
right to use Terminal Server Functionality. The Windows NT Workstation
license must have the same version number as or a higher version
number than the corresponding version number of Windows NT Server or
Windows NT Server, Terminal Server Edition being used. "Multiplexing"
or "pooling" software or hardware does not reduce the number of
Windows NT Workstation
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licenses required; the required number of Windows NT Workstation
licenses would equal the number of distinct inputs to the multiplexing
or pooling software or hardware "front end." When using Windows NT
Server in conjunction with Third-Party Terminal Software, Windows NT
Server may not be used in Per Server Mode. You also may need
additional licenses in order to use other software products that are
installed on the Server and are utilizing Terminal Server
Functionality-please consult the license agreement accompanying any
such software.
c. For Microsoft Windows NT Server, Enterprise Edition--Processor
Limitation. The Server Software may be used by no more than eight (8)
processors of the Server at any one time (support for a greater number
of processors is available from authorized computer hardware vendors).
SQL Server Feature. Windows NT Server, Enterprise Edition may install
an additional feature which is a restricted version of Microsoft SQL
Server. If such feature is installed, you may use it solely in support
of the Microsoft Message Queue Server directory functions. However,
you may not use such restricted SQL Server feature for any other
purpose.
d. For Microsoft SQL Server, Enterprise Edition and Microsoft Exchange
Server, Enterprise Edition-Note Regarding Use in a Clustered
Environment. If you are using the Server Software in a clustered
environment and the Server on which the Server Software is installed
fails over to one other computer in the cluster ("Fail-Over
Computer"), you may use the Server Software on such Fail-Over Computer
provided that you: (i) have acquired a separate licensed copy of the
Server Software for such Fail-Over Computer, and (ii) use the Server
Software on the Fail-Over Computer only for so long as the Server on
which the Server Software is installed has failed over to such Fail-
Over Computer. At any point in time, however, the Server Software may
be used only on one computer.
e. For Microsoft SQL Server (all editions)--Client Access. You do not
need a Client Access License in order for a Microsoft SQL Server or
Microsoft SQL Server, Enterprise Edition to solely interact with
another Microsoft SQL Server or Microsoft SQL Server, Enterprise
Edition. Note Regarding Interaction between Microsoft SQL Server and
Microsoft Data Engine ("MSDE"). If you use MSDE to access or use the
services of Microsoft SQL Server (for example, replication, data
transformation or heterogeneous query services), you must use
Microsoft SQL Server in Per Seat Mode (that is, each unique Device
accessing SQL Server must have a Client Access License dedicated to
it) Note Regarding Use of SQL Server Desktop. You may only install and
use the SQL Server Desktop component of Microsoft SQL Server on each
Device to which a valid Client Access License for the Server Software
has been dedicated. If you use SQL Server Desktop to access or use the
services of any version of Microsoft SQL Server (for example,
replication, data transformation, or heterogeneous query services),
you must use such Microsoft SQL Server in Per Seat Mode. Note
Regarding Use of SQL Server Tools. You may only use the Management
Tools, Books-Online, and Development Tools components of Microsoft SQL
Server (collectively "Tools") on each Device for which you have a
valid Client Access License for the Server Software. Note Regarding
the Use of Redistributable Components. You may reproduce and
distribute the files listed in the REDIST.TXT file (collectively
referred to as "Redistributable Components") provided that you comply
with the Distribution Terms listed in such REDIST.TXT file.
f. For Microsoft Exchange Server (all editions)--Connector Software. If
applicable, at any given time, you may install and use on one Server
only one copy of the Connector Software for one of the provided
architectures. If you choose to make the Connector Software a usable
feature, you must also acquire a separate license or licenses (whether
as part of the license for Microsoft Exchange Server or as a separate
license for the Connector Software) to install and use the Connector
Software on every other Microsoft Exchange Server in the same
"Microsoft Exchange Organization." A "Microsoft Exchange Organization"
is the group of all Microsoft Exchange Servers with the same
organization name specified during the Microsoft Exchange Server
installation process for the express purpose of connecting the
servers. Client Software. Microsoft Outlook is part of the Microsoft
Client Software for Microsoft Exchange Server. You may use Microsoft
Outlook to access or utilize the services of any version of Microsoft
Exchange Server provided that you have acquired the necessary Client
Access Licenses to do so. You may also use one copy of Microsoft
Outlook on a stand-alone basis on each Device for which you have a
valid Client Access License for any version of Microsoft Exchange
Server. You do not have any other right to use Microsoft Outlook.
Client Access. Each Client Access License for Microsoft Exchange
Server may also be used for any other Device that you use less than
twenty percent (20%) of your total connection time. The term "total
connection time" means the total amount of time that you use Microsoft
Client Software (other than the Client Software component of the chat
service) to access and otherwise use Microsoft Exchange Server from a
Device. You do not need a Client Access License for Microsoft Exchange
Server for anonymous access to Microsoft Exchange Server services.
Anonymous access occurs when a Device accesses information held in a
Microsoft Exchange Server without having a mailbox or custom recipient
object which identifies it, and consequently, is not validated by a
Windows NT Server domain ID. Note Regarding the Use of the Sample
Applications. Microsoft grants you the nonexclusive right to use and
modify the source code version of the files designated as Sample
Applications ("Sample Applications") and to reproduce and distribute
the object code versions of such modifications in conjunction with
your application that utilizes the services of Microsoft Exchange
Server ("Application"). You are granted the foregoing distribution
rights provided that you comply with the Distribution Requirements
listed below. Note an Outlook Web Access Software. You may customize,
reproduce and distribute the Outlook Web Access software ("OWA
Software") provided that (a) if you distribute the OWA Software you
comply with subsections (ii) - (v) in Paragraph g below (substituting
"OWA Software" in place of "Application" and "Redistributables"); and
(b) if you use the OWA Software internally and customize it or
incorporate it into any other software, you comply with subsection (v)
in Paragraph g below (similarly revised). Note on Source Extractor,
Administrator, and Microsoft Mail Connector. You may install and use
the Source Extractor, Administrator, and Microsoft Mail Connector
components on additional computers. Microsoft also grants you the
right to modify the source code version of the Source Extractor. The
Source Extractor may only be used to migrate data to Microsoft
Exchange Server.
g. Distribution Requirements for Microsoft Exchange Server Sample
Applications. If you distribute object code versions of the Sample
Applications (collectively "Redistributables") as provided above, you
agree to: (i) distribute the Redistributables only in conjunction with
and as a part of your Application; (ii) not use Microsoft's name,
logo, or trademarks to market your Application; (iii) include a valid
copyright notice in your Application; (iv) include an end-user license
agreement with your Application that grants a limited license to use
the Redistributables and otherwise protects Microsoft's and its
suppliers' intellectual property rights in the Redistributables; and
(v) indemnify, hold harmless, and defend Microsoft and its suppliers
from and against any claims or lawsuits, including attorneys' fees,
that arise or result from the use or distribution of your Application.
You shall display any patent or proprietary rights notices on each
copy of your Application(s) that contains executables, if and as
required in the documentation or other materials provided with the
Sample Applications, or subsequently provided to you by Microsoft.
(Continued)
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h. For Microsoft Proxy Server--Client Access. You do not need a Client
Access License to access or otherwise utilize the services or
functionality of Microsoft Proxy Server.
i. For Microsoft SNA Server--Client Access. You do not need a Client
Access License for Microsoft SNA Server in order to access or utilize
the following SNA Server services solely as server-based processes:
AFTP Client and Server, FTP-AFTP Gateway Service, VSAM File Transfer
Utility, Shared Folders Gateway Service, Host Print Service, OLE DB
Provider for AS/400 and VSAM, COM Transaction Integrator for CICS and
IMS, Host Security Integration Services, and NetView Integration
Services. You also do not need a Client Access License if you are
accessing or utilizing the services of Microsoft SNA Server solely as
necessary to run Microsoft Host Data Replicator on the same Server as
the SNA Server. Client Software. The SNA Server 3270 and 5250 terminal
emulation applets ("Applets") and the ODBC Driver for DB2 components
of the Client Software may be used by only one user per licensed copy
of the Server Software. Licenses for additional users must be acquired
separately. Additionally, the Applets may only be used to access or
otherwise utilize the services of Microsoft SNA Server. Note Regarding
Use of Host Security Integration Feature. You may install and use the
software identified as "Windows NT Account Synchronization Service"
and "Host Account Cache" on any computer running a validly licensed
copy of Windows NT Server within your organization. Additional Rights
for Development. You may also install and use copies of the OLE DB
Provider for AS/400 and VSAM ("OLE DB Provider") and/or the COM
Transaction Integrator for CICS and IMS ("COM Transaction Integrator")
and/or the Software Development Kit, if included, (collectively
"Development Software") on one or more computers located at your
premises solely for the purpose of developing applications that work
in conjunction with the Microsoft SNA Server ("Applications"). You may
use and modify the source code designated as "Sample Code" in the
SAMPLES.TXT file for the sole purposes of designing, developing, and
testing your Applications. You may also reproduce and distribute the
Sample Code, along with any modifications you make thereto, provided
that you comply with the Distribution Requirements described in the
REDIST.TXT file. For purposes of this section, "modifications" shall
mean enhancements to the functionality of the Sample Code. Portions of
SNA Server are also designated as "Redistributable Code." The text
file named REDIST.TXT contains a list of such files, as well as the
distribution rights associated with the Redistributable Code.
j. For Microsoft Systems Management Server--Client Access. You do not
need a Client Access License in order to solely execute Systems
Management Server-to-Systems Management Server communications which
are solely managing a third Device. You also do not need to acquire a
Client Access License for Microsoft SQL Server to use the
administration console or utilities provided with Systems Management
Server to access or otherwise utilize the services of Microsoft SQL
Server. Client Software. You may install and use the Installer
component of the Client Software ("SMS Installer") only on Devices
within your organization and only for the purpose of creating
installation programs through the use of SMS Installer ("Setup
Programs"). You may also use and modify the source code designated as
"Sample Code" in the SAMPLES.TXT file for the sole purposes of
designing, developing, and testing your Setup Programs. You may also
install and use in object code form the Redistributable Components (as
defined below), along with any modifications you may make to the
Sample Code, only on Devices within your organization for a purpose
other than creation of Setup Programs, provided that you: (i)
reproduce and use the Redistributable Components only in conjunction
with or as part of a Setup Program; (ii) have a valid Client Access
License for any version of Microsoft Systems Management Server for
each Device that uses the Redistributable Components; and (iii)
indemnify, hold harmless, and defend Microsoft and its suppliers from
and against any claims or lawsuits, including attorneys' fees, that
arise or result from the use of your Setup Program or any software
installed by your Setup Program. You do not have any other right to
install or use SMS Installer. Note Regarding Metering Services and
Client Access Points Features. You may install and use the Metering
Services and Client Access Points components of the Server Software on
any computer running a validly licensed copy of Windows NT Server
within your organization. Note Regarding Use of the Redistributable
Components. You may reproduce and distribute the files listed in the
REDIST.TXT file (collectively referred to as "Redistributable
Components"), along with any modifications you may make to the Sample
Code, provided that you comply with the Distribution Terms listed in
such REDIST.TXT file. Note that the Distribution Terms include, among
other conditions, terms similar to those described in subsections
(i) - (iii) of the Client Software note above.
k. For Microsoft Site Server (all editions). You may use one copy of the
Server Software to support a single "domain" on a single Server. For
the purposes of this EULA, "domain" shall mean the description of a
computer's location on the Internet. An Internet domain is comprised
of a second-level domain name (e.g., microsoft) and a top-level domain
name (e.g., com). For example, http://www.microsoft.com/ and
http://www.microsoft.com/products/ are part of a single domain, while
http://www.microsoft.com/ and http://www.msn.com/ are not. The single
domain restriction shall not apply to intranet usage of the Server
Software within and for a single organization. Content Deployment
Software. You may install and use one copy of Content Deployment
software included in the Server Software on a single computer for
staging and on a second computer for production, provided that at
least one of such computers is running a licensed copy of the Server
Software. Client Access. You do not need a Client Access License in
order to solely execute Site Server-to-Site Server communications. Per
Server Mode. When a Device "visits" a Server, it is deemed to be
accessing, utilizing, and/or simultaneously connecting to the Server
Software. For purposes of the previous sentence, a "visit" means a
series of one or more requests from a Device to a Server. A visit ends
when such Device does not make any additional requests of the Server
Software for a period of time that exceeds the default setting for a
visit, as described in the Site Server documentation. A "request"
means a hit that successfully retrieves content. Commercial Use. Site
Server is licensed for your use and you may not use Site Server to
provide Commercial Services to third parties. Each of the following is
a "Commercial Service": (a) a product or service that uses one or more
services of Site Server and alleviates any third party from the
obligation to obtain a separate license to Site Server for his, her,
or itself; and (b) a product or service that uses Site Server as part
of an Internet access and/or carriage service for any third party.
Examples of Commercial Services include, but are not limited to, the
following: (a) hosting of Internet, Extranet, or Intranet sites on
behalf of any third party, whether or not the sites are registered as
separate domains; (b) hosting of applications that use the services of
Site Server on behalf of any third party; or (c) hosting of commerce
or other services of Site Server on behalf of any third party.
Software Development Kits ("SDK Software"). You may install and use
copies of the SDK Software on one or more computers located at your
premises solely for the purpose of building applications that work in
conjunction with Microsoft Site Server ("Applications"). You may
modify the Sample Code to design, develop, and test your Applications,
and may reproduce and use the Sample Code, as modified, on one or more
computers located at your premises. For the purposes of this section,
"Sample Code" shall mean the sample source, HTML, and Active Server
Page (ASP) code located in Site Server's "SDK" and "samples"
directories. You may also reproduce and distribute the Sample Code,
along with any
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modifications you make thereto, provided that you comply with the
Distribution Requirements described in the REDIST.TXT file. For
purposes of this section, "modifications" shall mean enhancements to
the functionality of the Sample Code.
3. UPGRADES. If the SOFTWARE PRODUCT is labeled as an upgrade, you must
be properly licensed to use a product identified by Microsoft as being
eligible for the upgrade in order to use the SOFTWARE PRODUCT. Except
if you have acquired a direct Upgrade from Microsoft BackOffice Small
Business Server ("Small Business Server") as specified below, a
SOFTWARE PRODUCT labeled as an upgrade replaces and/or supplements
(and may disable) the product that formed the basis for your
eligibility for the upgrade, and following the upgrade you may use the
resulting SOFTWARE PRODUCT only in accordance with the terms of this
EULA. Upgrades of a Component of Microsoft BackOffice Server Product
Suite. If the SOFTWARE PRODUCT is an Enterprise Edition or a Commerce
Edition which upgrades a component of Microsoft BackOffice Server
product suite then, effective upon your installation of the SOFTWARE
PRODUCT, the SOFTWARE PRODUCT replaces the component being upgraded
and you may use the SOFTWARE PRODUCT as a stand-alone product in
accordance with the terms of this EULA. The remaining components of
Microsoft BackOffice Server product suite may be used only in
accordance with the terms of the Microsoft End-User License Agreement
that accompanied the original product suite. Upgrades of Microsoft
BackOffice Small Business Server. If you have acquired the SOFTWARE
PRODUCT as an upgrade from Small Business Server, including if you
have acquired the SOFTWARE PRODUCT as an indirect upgrade from Small
Business Server (for example, if you upgraded from Small Business
Server to a full use Microsoft SQL Server and then upgraded such
Microsoft SQL Server to Microsoft BackOffice Server product suite
("BackOffice Server"), you may use the SOFTWARE PRODUCT in accordance
with the terms of this EULA; provided that: (a) you may install and
use the SOFTWARE PRODUCT only on the same computer as the Small
Business Server is installed; (b) if you transfer the Small Business
Server to another computer or to a third party in accordance with the
terms of the End-User License Agreement for the Small Business Server
("SBS EULA"), you must also transfer the SOFTWARE PRODUCT; and (c)
subsequent to the upgrade, the Small Business Server may be used in
accordance with the terms of the SBS EULA, except as provided below
with respect to its fax and modem pooling server software components
("Fax and Modem Software"). If the SOFTWARE PRODUCT you acquired as an
upgrade from Small Business Server is either (a) Microsoft Windows NT
Server or (b) BackOffice Server, then the Fax and Modem Software is no
longer subject to the connection limitation in the SBS EULA and you do
not need to acquire a Client Access License for Small Business Server
for each Device that accesses or utilizes the Fax and Modem Software.
4. INTELLECTUAL PROPERTY RIGHTS. All title and intellectual property
rights in and to the SOFTWARE PRODUCT (including but not limited to
any images, photographs, animations, video, audio, music, text, and
"applets" incorporated into the SOFTWARE PRODUCT), and any copies you
are 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 PRODUCT is the property of
the respective content owner and may be protected by applicable
copyright or other intellectual property laws and treaties. This EULA
grants you no rights to use such content. If this SOFTWARE PRODUCT
contains documentation which is provided only in electronic form, you
may print one copy of such electronic documentation. You may not copy
the printed materials accompanying the SOFTWARE PRODUCT. All rights
not expressly granted are reserved by Microsoft.
5. REINSTALLATION COPY. After installation of one copy of the SOFTWARE
PRODUCT pursuant to this EULA, you may keep the original media on
which the SOFTWARE PRODUCT was provided by Microsoft solely for
archival purposes or reinstallation of the SOFTWARE PRODUCT on the
same computer as the SOFTWARE PRODUCT was previously installed.
6. DUAL-MEDIA SOFTWARE. You may receive the SOFTWARE PRODUCT in more than
one medium. Regardless of the type or size of medium you receive, you
may use only one medium that is appropriate for your single computer.
You may not use the other medium for another computer. You may not
loan, rent, lease, or otherwise transfer the other medium to another
user, except as part of the permanent transfer (as provided above) of
the SOFTWARE PRODUCT.
7. EXPORT RESTRICTIONS.
Non-Exportable Encryption. If the SOFTWARE PRODUCT is any edition of
Microsoft Windows NT Server, Exchange Server, Site Server, or
BackOffice Server (except if such SOFTWARE PRODUCT is labeled "Not For
Resale" or "NFR"), the following terms apply: The SOFTWARE PRODUCT 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 PRODUCT from
the United States is regulated under "El 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 PRODUCT outside the United States or
Canada. You agree that you will not directly or indirectly export or
re-export the SOFTWARE PRODUCT (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. You warrant and represent that neither the BXA nor any other
U.S. federal agency has suspended, revoked, or denied your export
privileges.
Exportable Encryption. If the SOFTWARE PRODUCT is any edition
Microsoft SQL Server, Proxy Server, SNA Server, or Systems Management
Server, or any edition of Microsoft Windows NT Server, Exchange
Server, Site Server, or BackOffice Server that is labeled "Not For
Resale" or "NFR," the following terms apply: You agree that you will
not export or re-export the SOFTWARE PRODUCT, any part thereof, or any
process or service that is the direct product of the SOFTWARE PRODUCT
(the foregoing collectively referred to as the "Restricted
Components"), to any country, person, or entity subject to U.S. export
restrictions. You specifically agree not to export or re-export any of
the Restricted Components (i) to any country to which the U.S. has
embargoed 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 Restricted Components back to such country; (ii) to any person or
entity who you know or have reason to know will utilize the Restricted
Components in the design, development, or production of nuclear,
chemical, or biological weapons; or (iii) to any person or entity who
has been prohibited from participating in U.S. export transactions by
any federal agency of the U.S. government. You warrant and represent
that neither the BXA nor any other U.S. federal agency has suspended,
revoked or denied your export privileges.
<PAGE>
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8. LIMITED WARRANTY. Microsoft warrants that the SOFTWARE PRODUCT will
perform substantially in accordance with the accompanying written
materials for a period of ninety (90) days from the date of receipt.
If an implied warranty or condition is created by your
state/jurisdiction and federal or state/provincial law prohibits
disclaimer of it, you also have an implied warranty or condition, BUT
ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED
WARRANTY (NINETY [90] DAYS). AS TO ANY DEFECTS DISCOVER AFTER THE
NINETY (90)-DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND.
Some states/jurisdictions do not allow limitations on how long an
implied warranty or condition lasts, so the above limitation may not
apply to you.
Any supplements or updates to the SOFTWARE PRODUCT, including without
limitation, any (if any) service pack or hot fixes provided to you
after the expiration of the ninety (90)-day Limited Warranty period
are not covered by any warranty or condition, express or implied.
LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. Your
exclusive remedy for any breach of this Limited Warranty is as set
forth below. Except for any refund elected by Microsoft, YOU ARE NOT
ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL
DAMAGES, if the SOFTWARE PRODUCT does not meet Microsoft's Limited
Warranty, and, to the maximum extent allowed by applicable law, even
if any remedy fails of its essential purpose. The terms of Paragraph
10 below ("Exclusion of Incidental, Consequential, and Certain Other
Damages") are also incorporated into this Limited Warranty. Some
states/jurisdictions do not allow the exclusion or limitation of
incidental or consequential damages, so the above limitation or
exclusion may not apply to you. This Limited Warranty gives you
specific legal rights. You may have others which vary from
state/jurisdiction to state/jurisdiction. YOUR EXCLUSIVE REMEDY.
Microsoft's and its suppliers' entire liability and your exclusive
remedy shall be, at Microsoft's option from time to time, (a) return
of the price paid (if any) for, or (b) repair or replacement of, the
SOFTWARE PRODUCT that does not meet this Limited Warranty and that is
returned to Microsoft with a copy of your receipt. You will receive
the remedy elected by Microsoft without charge, except that you are
responsible for any expenses you may incur (e.g., cost of shipping the
SOFTWARE PRODUCT to Microsoft). This Limited Warranty is void if
failure of the SOFTWARE PRODUCT has resulted from accident, abuse,
misapplication, abnormal use, or a virus. Any replacement SOFTWARE
PRODUCT will be warranted for the remainder of the original warranty
period or thirty (30) days, whichever is longer. Outside the United
States or Canada, neither these remedies nor any product support
services offered by Microsoft are available without proof of purchase
from an authorized international source. To exercise your remedy,
contact: Microsoft, Attn. Microsoft Sales Information Center, at the
address specified in Paragraph 16 below.
9. DISCLAIMER OF WARRANTIES. The Limited Warranty that appears above is
the only express warranty made to you and is provided in lieu of any
other express warranties (if any) created by any documentation or
packaging. Except for the Limited Warranty and to the maximum extent
permitted by applicable law, Microsoft and its suppliers provide the
SOFTWARE PRODUCT and Support Services (if any) 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 PRODUCT,
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 PRODUCT.
10. 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 PRODUCT, the provision of or failure to
provide Support Services, or otherwise under or in connection with any
provision of this EULA, even if Microsoft or any supplier has been
advised of the possibility of such damages.
11. LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any damages that
you 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 EULA and your exclusive remedy for all of
the foregoing (except for any remedy of repair or replacement elected
by Microsoft with respect to any breach of the Limited Warranty) shall
be limited to the greater of the amount actually paid by you for the
SOFTWARE PRODUCT or U.S.$5.00. The foregoing limitations, exclusions,
and disclaimers (including Sections 9, 10 and 11 above) shall apply to
the maximum extent permitted by applicable law, even if any remedy
falls its essential purpose.
12. NOTE ON JAVA SUPPORT. THE SOFTWARE PRODUCT 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.
13. U.S. GOVERNMENT RIGHTS. All SOFTWARE PRODUCT provided to the U.S.
Government pursuant to solicitations issued on or after December 1,
1995 is provided with the commercial rights and restrictions described
elsewhere herein. All SOFTWARE PRODUCT 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 FAR, 48 CFR 252.227-7013 (OCT 1988), as applicable.
14. APPLICABLE LAW. If you acquired this SOFTWARE PRODUCT in the United
States, this EULA is governed by the laws of the State of Washington.
If you acquired this SOFTWARE PRODUCT in Canada, unless expressly
prohibited by local law, this EULA is governed by the laws in force in
the Province of Ontario, Canada; and, in respect of any dispute which
may arise hereunder, you consent to the jurisdiction of the federal
and provincial courts sitting in Toronto, Ontario. If this SOFTWARE
PRODUCT was acquired outside the United States, then local law may
apply.
