ECperf Kit, v1.0

Public Review Draft
Binary Software Evaluation Agreement

SUN MICROSYTEMS, INC. ("SUN") IS WILLING TO LICENSE THE ECPERF KIT, VERSION 1.0 PUBLIC REVIEW DRAFT SOFTWARE TO LICENSEE ONLY UPON THE CONDITION THAT LICENSEE ACCEPTS ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT ("AGREEMENT"). PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY. BY INSTALLING THIS SOFTWARE, LICENSEE ACCEPTS THE TERMS AND CONDITIONS OF THIS AGREEMENT, INDICATE ACCEPTANCE BY SELECTING THE "ACCEPT" BUTTON AT THE BOTTOM OF THIS AGREMENT. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS, SELECT THE "DECLINE" BUTTON AT THE BOTTOM OF THE AGREEMENT AND THE INSTALLATION PROCESS WILL NOT CONTINUE.

1.0 DEFINITIONS
1.1 "Licensed Software" means the ECperf Kit, v1.0 Public Review Draft Software in binary form, any other machine readable materials including, but not limited to, libraries, source files, header files, and data files, any user manuals, programming guides, and any other documentation provided to Licensee by Sun under this Agreement.

2.0 LIMITED LICENSE
2.1 Sun grants to Licensee, a non-exclusive, non-transferable, royalty-free and limited license to use the Licensed Software internally and only for the purposes of (i) evaluation, and (ii) performance analysis and tuning; provided, however, that Licensee may not make performance claims based on its use of the Licensed Software unless and until such claims can be made in accordance with the procedures and requirements set forth in the then current ECperf Benchmark Specification. No license is granted to Licensee for any other purpose. Licensee may not sell, rent, loan or otherwise encumber or transfer Licensed Software in whole or in part, to any third party.
2.2 Portions of the Licensed Software have been developed by Apache Software Foundation.

3.0 LICENSEE RESTRICTIONS
3.1 Licensee any duplicate Licensed Software as needed for the purposes set forth in Section 2.0. Licensee agrees to reproduce any copyright and other proprietary right notices on any such copy.
3.2 Except as otherwise provided by law, Licensee may not modify or create derivative works of the Licensed Software, reverse engineer, disassemble or decompile binary portions of the Licensed Software, or otherwise attempt to derive the source code from such portions.
3.3 No right, title, or interest in or to Licensed Software, any trademarks, service marks, or trade names of Sun or Sun's licensors is granted under this Agreement.
3.4 Licensee shall have no right to use the Licensed Software for productive or commercial use.

4.0 NO SUPPORT
4.1 Sun is under no obligation to support Licensed Software or to provide Licensee with updates or error corrections (collectively "Software Updates"). If Sun, at its sole option, supplies Software Updates to Licensee, the Software Updates will be considered part of Licensed Software, and subject to the terms of this Agreement.

5.0 TERM AND TERMINATION OF AGREEMENT
5.1 This Agreement will commence on the date on which Licensee receives Licensed Software (the "Effective Date") and will expire one hundred and eighty (180) days from the Effective Date, unless sooner terminated as provided herein.
5.2 Either party may terminate this Agreement upon ten (10) days written notice to the other party. However, Sun may terminate this Agreement immediately should any Licensed Software become, or in Sun's opinion be likely to become, the subject of a patent, trade secret, or copyright infringement claim.
5.3 Sun may terminate this Agreement immediately should Licensee materially breach any of its provisions or take any action in derogation of Sun's rights to the Confidential Information licensed to Licensee.
5.4 Upon termination or expiration of this Agreement, Licensee shall immediately cease use of and destroy Licensed Software, any copies thereof, and provide to Sun a written statement certifying that Licensee has complied with the foregoing obligations.
5.5 Rights and obligations under this Agreement which by their nature should survive, will remain in effect after termination or expiration hereof.

6.0 CONFIDENTIAL INFORMATION
6.1 For purposes of this Agreement, "Confidential Information" means: (i) business and technical information and any source or binary code, which Sun discloses to Licensee related to Licensed Software; (ii) Licensee's feedback based on Licensed Software; and (iii) the terms, conditions, and existence of this Agreement. Licensee may not disclose or use Confidential Information, except for the purposes specified in this Agreement. Licensee will protect the Confidential Information with the same degree of care, but not less than a reasonable degree of care, as Licensee uses to protect its own Confidential Information. Licensee's obligations regarding Confidential Information will expire no less than five (5) years from the date of receipt of the Confidential Information, except for Sun source code which will be protected in perpetuity. Licensee agrees that Licensed Software contains Sun trade secrets.
6.2 Notwithstanding any provisions contained in this Agreement concerning nondisclosure and non-use of the Confidential Information, the nondisclosure obligations of Section 7.1 will not apply to any portion of Confidential Information that Licensee can demonstrate in writing is: (i) now, or hereafter through no act or failure to act on the part of Licensee becomes, generally known to the public; (ii) known to Licensee at the time of receiving the Confidential Information without any obligation of confidentiality; (iii) hereafter rightfully furnished to Licensee by a third party without restriction on disclosure; or (iv) independently developed by Licensee without any use of the Confidential Information.
6.3 Licensee must restrict access to Confidential Information to its employees or contractors on a "need-to-know" basis or to its employees or contractors needing Confidential Information in order to perform their employment or contractual obligations; and who have agreed in writing to be bound by a confidentiality obligation, which incorporates the protections and restrictions substantially as set forth in this Agreement.

7.0 DISCLAIMER OF WARRANTY
7.1 Licensee acknowledges that Licensed Software may contain errors and is not designed, licensed, or intended for use in the design, construction, operation or maintenance of any nuclear facility ("High Risk Activities"). Sun disclaims any express or implied warranty of fitness for such uses. Licensee represents and warrants to Sun that it will not use, distribute or license the Licensed Software for High Risk Activities.
7.2 LICENSED SOFTWARE IS PROVIDED "AS IS". ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID.

8.0 LIMITATION OF LIABILITY
8.1 Licensee acknowledges that the Licensed Software is experimental and that it may have defects or deficiencies, which cannot or will not be corrected by Sun. Licensee will hold Sun harmless from any claims based on Licensee's use of the Licensed Software for any purposes other than those of internal evaluation, and from any claims that later versions or releases of any Licensed Software furnished to Licensee are incompatible with the Licensed Software provided to Licensee under this Agreement.
8.2 Licensee shall have the sole responsibility to adequately protect and backup Licensee's data or equipment used in connection with the Licensed Software. Licensee shall not claim against Sun for lost data, re-run time, inaccurate output, work delays or lost profits resulting from Licensee' use of the Licensed Software.
8.3 Licensee acknowledges that Sun is under no obligation to release the Licensed Software as a Sun product.
8.4 Neither party will be liable for any indirect, punitive, special, incidental or consequential damage in connection with or arising out of this Agreement (including loss of business, revenue, profits, use, data or other economic advantage), however it arises, whether for breach or in tort, even if that party has been previously advised of the possibility of such damage.

9.0 U.S. GOVERNMENT RESTRICTED RIGHTS
9.1 If this 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 the Software and accompanying documentation shall be only as set forth in this license; this is in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and with 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions).

10.0 GENERAL TERMS
10.1 Any action relating to or arising out of this Agreement will be governed by California law and controlling U.S. federal law. The U.N. Convention for the International Sale of Goods and the choice of law rules of any jurisdiction will not apply.
10.2 Licensed Software and any technical data delivered under this Agreement are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such laws and regulations and acknowledges that it has the responsibility to obtain such licenses to export, re-export or import as may be required after delivery to Licensee.
10.3 It is understood and agreed that, notwithstanding any other provision of this Agreement, Licensee's breach of the provisions of Section 7 of this Agreement will cause Sun irreparable damage for which recovery of money damages would be inadequate, and that Sun will therefore be entitled to seek timely injunctive relief to protect Sun's rights under this Agreement in addition to any and all remedies available at law.
10.4 Neither party may assign or otherwise transfer any of its rights or obligations under this Agreement, without the prior written consent of the other party, except that Sun may assign this Agreement to an affiliated company.
10.5 This Agreement is the parties' entire agreement relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, conditions, 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 to this Agreement will be binding, unless in writing and signed by an authorized representative of each party.

LFI#81407/Form ID#011801