Attachmate® Software License Agreement

IMPORTANT—READ CAREFULLY: THIS SOFTWARE LICENSE AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AND ATTACHMATE CORPORATION ("LICENSOR") FOR THE ATTACHMATE® EXTRA! X-TREME™ SOFTWARE PRODUCT MODULES FOR WHICH YOU ACQUIRE A LICENSE CERTIFICATE OR CERTIFICATES FROM LICENSOR, OR WHICH IS PROVIDED TO YOU ON A COMPLIMENTARY OR TIME-LIMITED EVALUATION BASIS, INCLUDING COMPUTER SOFTWARE AND ITS ACCOMPANYING INSTALLATION OR USER GUIDE ("SOFTWARE"). UNLESS YOU HAVE ENTERED INTO A SEPARATE LICENSE AGREEMENT WITH LICENSOR, YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT BY (I) SELECTING THE "ACCEPT" OR "YES" BUTTON WHEN THE SOFTWARE PRODUCT PROMPTS YOU TO ACCEPT OR DECLINE THIS AGREEMENT, OR (II) BY INSTALLING, COPYING, DOWNLOADING, ACCESSING OR OTHERWISE USING THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY RECEIVE A FULL REFUND IF YOU RETURN THIS SOFTWARE PRODUCT AND ALL ACCOMPANYING MATERIALS ALONG WITH YOUR PROOF OF PURCHASE TO THE PLACE WHERE YOU OBTAINED IT WITHIN 30 DAYS FROM YOUR DATE OF PURCHASE.

Attachmate® Software License Agreement for EXTRA! X-treme™ Version 9

  1. LICENSE GRANT. Subject to payment of applicable license fees, Licensor and its suppliers grant you a non-exclusive, non-transferable license to use the Software for internal business purposes in accordance with the terms of this Agreement and the applicable product use rights ("Product Use Rights") as set forth in the Appendix to this Agreement. If the media delivered to you contains software programs or modules other than those for which you have acquired licenses, you may not use such additional programs or modules. The following license grant restrictions may also apply to you:

    1. LIMITED USE RESTRICTIONS. If you acquired the Software subject to limited-use restrictions (e.g. limited use of certain functionality or options) agreed in separate documentation between you and Licensor, you may only use the Software in such limited manner. You agree that such limited-use restrictions will also apply to any replacement Licensor product obtained through a Licensor support or maintenance program ("Maintenance Plan").

    2. COMPLIMENTARY AND TIME-LIMITED EVALUATION RESTRICTIONS. If the Software is provided to you as a "Complimentary" or "Comp" copy, then you may use the Software for demonstration, test, or evaluation purposes only. If the Software is provided to you as an "Evaluation" copy, then you may install and use the Software for the Evaluation Period only, solely for evaluation and test purposes and not for production use. The "Evaluation Period" extends from your first use of the Software to the earlier of (i) the date when the Evaluation version automatically ceases to function, or (ii) sixty (60) days after your first use. At the end of the Evaluation Period, your license to use the Evaluation version of the Software is automatically terminated. You may not extend the time limits of the Software in any manner. If you choose to evaluate more than one Software product provided on the media, the Evaluation Period may be different for each product.

  2. OTHER RIGHTS AND LIMITATIONS. Except as otherwise expressly provided in this Agreement or the applicable Product Use Rights, the following rights and limitations apply:

    1. RESERVATION OF RIGHTS. The Software is owned by Licensor or a Licensor supplier, and is copyrighted and licensed, not sold. Licensor reserves all rights not expressly granted under this Agreement.

    2. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Software, or otherwise attempt to discover its source code, except and only to the extent that such activity is permitted by applicable law.

    3. COPIES. You may not copy the Software except as allowed by the applicable Product Use Rights and except to make one copy for backup or archival purposes. You must include all copyright notices and other proprietary rights legends on each copy of the Software.

    4. SEPARATION OF COMPONENTS. The Software is licensed as a single product, whose component parts may not be separated for use on more than one computer, except in accordance with the Product Use Rights applicable to your license(s) and the Software documentation.

    5. RENTAL. You may not rent, lease, sell, sublicense or lend the Software. You may not use the Software to provide commercial hosting services.

    6. TRANSFER. You may not transfer your Software license or assign your rights or obligations under this Agreement to any person or entity without the prior written consent of Licensor.

    7. BENCHMARK TESTING. You shall not disclose any benchmark results relating to your use of the Software without Licensor's prior written consent.

    8. LANGUAGE VERSIONS. If the media provided to you includes more than one language version of the same Software, you may use any of the language versions of the Software, provided the total number of copies
      does not exceed the number of licenses you have acquired.

    9. NOTE ON JAVA SUPPORT. If the Software product you acquired contains programs written in Java, you acknowledge that the Software is not designed or licensed for use in on-line control equipment in hazardous environments, such as operation of nuclear facilities, aircraft navigation or control, or direct life-support machines. You warrant that you will not use the Software for such purposes.

    10. UPDATES, PATCHES, UPGRADES and MIGRATIONS

      1. Except as provided under either the Limited Warranty remedies set forth below or a Licensor Maintenance Plan subscription that you separately purchased, Licensor is under no obligation to provide any updates, upgrades, patches, bug fixes, modifications, enhancements, or maintenance or support services to you

      2. A "Patch" is supplemental code (sometimes referred to as a fix) that addresses one or more specific issues in the Software; it is considered part of the Software and is subject to the terms and conditions of this Agreement unless accompanied by its own terms. You may use a Patch only if Licensor has authorized you to do so and only for your licensed copies of the Software for which the authorization was given.

      3. The Software is licensed to you at the product version you acquired with your license purchase. An "Upgrade" is a subsequent release of the Software, generally represented by a change in the version number (e.g., from x.x to x.y or to y.y). In order to use a more current version, you must purchase an Upgrade for all licensed copies of the product or be entitled to the Upgrade by having a current Maintenance Plan with Licensor for all licensed copies of the product ("Maintenance Plan Entitlement"). If you install an Upgrade, you must destroy the product or version it replaces. You may use the Upgrade only in accordance with the software license agreement and product use rights that accompany the Upgrade.

      4. If you acquired license certificates for the Software as a "Migration" or a competitive-product "Trade-In", then you agree to destroy the product this Software is replacing upon installation or use of the Software.

      5. If you are not ready to use the Software, you may elect to use an "Authorized Alternative Product" (as defined in the Appendix to this Agreement) in place of the Software subject to the following terms: (a) you agree to use such Authorized Alternative Product in accordance with the software license agreement accompanying it; (b) you agree to destroy copies of Authorized Alternative Product if you later replace them with the Software; and  (c) the sum total of all Software and all Authorized Alternative Product instances will not at any time exceed the number of licenses you have acquired for the Software.

  3. TERMINATION. If you violate any term of this Agreement, Licensor may terminate this Agreement without waiving any other Licensor rights or remedies. If Licensor terminates this Agreement, you must destroy all copies of the Software and, on request of Licensor, certify said destruction.

  4. VERIFICATION. Licensor has the right to verify your compliance with this Agreement. You agree to:

    1. Implement internal safeguards to prevent any unauthorized copying, distribution, or use of the Software;

    2. Keep records relating to the Software products you have installed, copied or used and, upon request of Licensor, provide Licensor with written certification of the number (by product and version) of copies installed or of your peak usage in the case of concurrent licenses; and

    3. Allow a Licensor representative or an independent auditor to inspect and audit your computers and records for compliance with this Agreement during your normal business hours. You shall fully cooperate with such audit and provide any necessary assistance and access to all records and computers. If an audit reveals that you have or at any time have had unlicensed installation or use of the Software, you will promptly acquire sufficient licenses to cover any shortage. If a material license shortage of 5% or more is found, you must reimburse Licensor for the costs incurred in the audit and acquire the necessary additional licenses within 30 days without benefit of any otherwise applicable discount.

  5. EXPORT. You are responsible for complying with all trade regulations and laws both foreign and domestic. You acknowledge that this Software may only be exported or re-exported in accordance with U.S. Government Export Administration Regulations. Without authorization from the U.S. Government, you may not export or re-export the Software (i) to any prohibited country, person, entity, or end-user as specified by U.S. export controls or (ii) for use in the design, development or production of nuclear, chemical, or biological weapons, or missile technology, or any other prohibited use. You warrant and represent that neither the Bureau of Export Administration of the U.S. Commerce Department nor any other U.S. Government entity or agency has suspended, revoked or denied, in whole or in part, your export privileges. For current information on U.S. export requirements and restrictions visit www.bis.doc.gov/.

  6. LICENSE RIGHTS APPLICABLE TO THE U.S. GOVERNMENT. By accepting delivery of or installing or using the Software, the U.S. Government or its prime contractor or subcontractor (at any tier) hereby agrees that notwithstanding anything to the contrary, and to the maximum extent possible under federal law: (a) the acquisition of such Software is governed by FAR Part 12 or DFAR 227.7202-4, as applicable and to the extent such provisions are consistent with this Agreement; (b) such Software qualifies as "commercial computer software" under the applicable procurement regulations; (c) any modifications provided by Licensor in connection with such Software are either minor derivative modifications or are of a type generally available in the commercial marketplace; and (d) the U.S. Government will be bound by the commercial terms and conditions and restricted rights contained in this Agreement, and no other license terms shall be incorporated into this Agreement except by mutual written consent.

  7. GOVERNING LAW AND ATTORNEYS' FEES. This Agreement is governed by the laws of the State of Washington, USA, excluding its conflict of laws rules, and specifically excluding the United Nations Convention on Contracts for the International Sale of Goods. If you acquired this Software in a country outside of the United States, that country's laws may apply. In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party will be entitled to recover its costs, including reasonable attorneys' fees.

  8. ENTIRE AGREEMENT. This Agreement in combination with its associated license certificate(s) constitutes the entire agreement between you and Licensor with respect to the Software, and replaces all other agreements or representations, whether written or oral. The terms of this Agreement cannot be modified by any terms in any printed forms used by the parties in performing the Agreement, and can only be modified by express written consent of both parties. Failure by Licensor to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. If any part of this Agreement is held to be unenforceable as written, it will be enforced to the maximum extent allowed by applicable law, and will not affect the enforceability of any other part. The original of this Agreement is in English. If it is translated into another language, the English language version shall prevail.

Should you have any questions concerning this Agreement, or if you desire to contact Licensor for any reason, please contact the Attachmate representative serving your company, or write: Attachmate Corporation, 1500 Dexter Avenue North, Seattle, WA 98109 USA.

THE FOLLOWING LIMITED WARRANTY ON THE SOFTWARE IS INCORPORATED INTO THIS AGREEMENT BY REFERENCE.

LIMITED WARRANTY

SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON WARRANTIES OR LIMITATIONS ON OR EXCLUSION OF DAMAGES, SO THE LIMITATIONS SET FORTH BELOW MAY NOT APPLY TO YOU.

LIMITED WARRANTY. For a period of ninety (90) days from the date you receive the Software, Licensor warrants that (a) the unmodified Software will perform substantially in accordance with the accompanying written materials when used as directed and (b) Licensor media will be free of defects. Any implied warranties are limited to the 90-day period.

This Limited Warranty is void if failure of the Software has resulted from modification, accident, abuse, or misapplication. This Limited Warranty does not apply to any Complimentary or Evaluation versions of the Software, which are provided "AS IS" with no warranty whatsoever.

YOUR EXCLUSIVE REMEDY. The entire liability of Licensor and its suppliers and your exclusive remedy arising from a breach of the limited warranty is, at Licensor option, either repair or replacement of the nonconforming Software, or return of the price you paid for the nonconforming Software. You must return all nonconforming Software to Licensor with your proof of purchase to be entitled to this remedy. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Outside the United States, neither these remedies nor any product support services offered by Licensor are available without proof of your purchase from an authorized international source.

NO OTHER WARRANTIES. TO THE FULL EXTENT PERMITTED BY LAW, LICENSOR AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE AND THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL SUPPORT.

LIMITATION OF LIABILITY. LICENSOR AND ITS SUPPLIERS WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR CONFIDENTIAL INFORMATION, LOSS OF PRIVACY, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL SUPPORT, EVEN IF LICENSOR OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, THE ENTIRE LIABILITY OF LICENSOR AND ITS SUPPLIERS UNDER THIS AGREEMENT AND LIMITED WARRANTY SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR TECHNICAL SUPPORT THAT CAUSES THE DAMAGE.

THE FOLLOWING APPENDIX IS INCORPORATED INTO THIS AGREEMENT BY REFERENCE.

Attachmate EXTRA! X-treme Version 9
APPENDIX TO THE SOFTWARE LICENSE AGREEMENT

PRODUCT USE RIGHTS

Licensed Count. "Licensed Count" means, for each license type addressed below, the number of licenses of that type that you have acquired, as evidenced by license certificates issued by Licensor. "Licensed Unit" refers to one license within the Licensed Count.

Device. "Device" means a personal computer or electronic communications/computing device that is used by a person, and excludes any machine that primarily provides automated, unattended communications and/or services to other applications, computers or electronic devices.

The product use rights below apply to you only if you have acquired the license type identified. Any third-party product that is provided with the Software and that is associated with a separate license agreement is licensed to you under the terms of that license agreement.

EXTRA! X-treme Licenses
The Software is licensed for one Device to connect to a host computer. A single Licensed Unit of the Software may not be shared with multiple Devices for concurrent use. The Software is not licensed for middleware use where the Software is providing host connectivity to multiple Devices unless you have acquired a Licensed Unit for each Device that can directly or indirectly utilize the Software. If you wish to install and use the Software on a network server computer, you may do so provided you have acquired a Licensed Unit for each Device that has the ability to access and use, directly or indirectly, the Software from such network server.

Device-based licensing. You may install and use up to the Licensed Count number of units of the Software (directly or indirectly) on the equivalent number of Devices.

Activation-based licensing. If you select the Central Management and Require Activation installation options, then you may install images or copies of the EXTRA! X-treme client component on an unlimited number of Devices within your company/organization (the "Unpaid Copies"), provided you have a process in place that prevents Devices or users from running or using the Unpaid Copies. You may run or use up to the Licensed Count number of units of the Software (directly or indirectly) on the equivalent number of Devices. No Device (or user) may run or use any Unpaid Copies.

Complimentary and Evaluation licensing. If the Software is provided to you as a Complimentary or Evaluation copy, then you may install and use a reasonable number of copies of the Software as consistent with paragraph 1(B) of the Agreement.

EXTRA! Mainframe Server Edition (EMSE) - Disposition of Prior Licensed Copies
If you received the Software through Maintenance Plan Entitlement for EMSE, then notwithstanding the wording in paragraph 2 (Other Rights and Limitations) subparagraph J(iii) regarding the destruction of replaced software, you are required to destroy only your prior copies the EXTRA! X-treme client component of EMSE, and you may continue to use the remaining EMSE components for which you have legitimate license, in accordance with the software license agreement that accompanied the EMSE software. If you received the Software through any other form of Upgrade, Migration, or Trade-in from EMSE, then upon use of the Software or an Authorized Alternative Product, you must destroy all copies of all other components of EMSE.

Reflection Secure FTP Licenses
The Attachmate® Reflection® Secure FTP module ("FTP Module") is included with the Software as an enhancement to the Software, and is governed by this Agreement. The FTP Module may be installed and used separately from the other components of the Software. The following usage rights terms from the FTP Module Supplemental License are restated here for clarity. You may make copies of the FTP Module and use such copies if you comply with the following conditions: (i) the number of FTP Module copies you are permitted to make is limited to the Licensed Count of the Software; and (ii) any FTP Module copy installed on a Device that does not also have a validly licensed copy of the EXTRA! X-treme or Authorized Alternative Product client component, or that has an Unpaid Copy, will be accounted as consuming a Licensed Unit of the Software. You may install and use the FTP Module along with, or in lieu of, instances of Authorized Alternative Products under these same terms.

AUTHORIZED ALTERNATIVE PRODUCTS
If you acquired the Software through Maintenance Plan Entitlement, then "Authorized Alternative Product" means any earlier version or predecessor product for which you are licensed. If you acquired the Software in any other manner, then "Authorized Alternative Product" means either (i) EXTRA! X-treme Version 9, or (ii) EXTRA! X-treme Version 8.

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