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    1 $Id: LICENSE,v 1.9 2002/04/08 21:46:05 crowland Exp crowland $
    2 
    3 END USER SERVICE AGREEMENT FOR PSIONIC TECHNOLOGIES
    4 
    5 NOTICE TO END USER:
    6 
    7 THIS IS A BINDING CONTRACT. BY DOWNLOADING OR USING THIS SOFTWARE YOU ACCEPT
    8 ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE
    9 TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE THE SOFTWARE AND REMOVE
   10 AND DESTROY ANY FILES YOU HAVE DOWNLOADED.
   11 
   12 This Psionic Technologies, Inc. ("Psionic Technologies") End User Service
   13 Agreement ("Agreement") is a legal agreement between you (either an
   14 individual or an entity) ("You" or "Your") and Psionic Technologies
   15 (formerly "Psionic Software") and sets forth the terms and conditions
   16 governing Your use of Psionic Technologies' proprietary services and
   17 products, in object code, including updates and upgrades, if any, provided
   18 by Psionic Technologies, and related explanatory materials and documentation
   19 (collectively, the "Software").
   20 
   21 The Software is being provided to you free of charge. Therefore, You agree
   22 to assume all risks associated with the use or inability to use the
   23 Software.
   24 
   25 The Software is protected by copyright laws and international treaties, as
   26 well as other intellectual property laws and treaties.
   27 
   28 1. GRANT OF LICENSE. Subject to the terms and conditions of this Agreement,
   29 Psionic Technologies hereby grants to You, and You accept, a nonexclusive,
   30 royalty-free, perpetual and nontransferable license to use only for Your
   31 internal use. You agree that You will not assign, sublicense, transfer,
   32 pledge, lease, rent, or share Your rights under this Agreement. You may make
   33 unlimited archival copies of the Software, provided that You affix to such copy
   34 all copyright, confidentiality, and proprietary notices that appear on the
   35 original. Except as authorized under this paragraph, no copies of the
   36 Software or any portions thereof may be made by You or any person under Your
   37 authority or control. Psionic Technologies reserves all rights not expressly
   38 granted to You under this Agreement.
   39 
   40 2. LICENSE RESTRICTIONS. Notwithstanding any provisions in this Agreement to
   41 the contrary, You may not (a) modify or make derivative works of
   42 the Software for non-internal use, except to the extent inherent in the
   43 use of the Software, (b) reproduce or use the Software except as expressly
   44 permitted herein. You may redistribute the Software in its entirety as long as
   45 you include a copy of this Agreement with the redistributed Software. Since
   46 some of the Software is distributed in source code form, no part of the Software,
   47 including the source code and object code, may be copied or used in any other
   48 software or service where a fee is charged without commercial licensing.
   49 Notwithstanding the above, this software may be distributed in any freely available
   50 operating system package provided that a fee is not charged for the software's
   51 functionality or feature directly.
   52 
   53 3. PROPRIETARY RIGHTS. The Software is licensed, not sold. All rights, title
   54 and interests in the Software (including but not limited to any images,
   55 photographs, animations, video, audio, music, text and "applets"
   56 incorporated into the Software), and any copies of the Software are owned by
   57 Psionic Technologies. You may not remove the copyright or other proprietary
   58 notices from the Software.
   59 
   60 4. CONFIDENTIALITY. The Software contains trade secrets and other
   61 confidential and proprietary information of Psionic Technologies and its
   62 licensors. You agree to hold in confidence, not disclose (except with
   63 Psionic Technologies' express written consent) and not use (except as
   64 expressly provided herein) the Software, and ensure that there is no breach,
   65 compromise or violation by Your employees, consultants, or independent
   66 contractors of such confidentiality obligations and Psionic Technologies'
   67 trade secrets. You recognize and agree that there is no adequate remedy at
   68 law for a breach of this Section 4, that such breach would irreparably harm
   69 Psionic Technologies for which monetary damages would not be an adequate
   70 remedy and that Psionic Technologies is entitled to equitable relief
   71 (including, without limitation, injunctions) with respect to any such breach
   72 or potential breach in addition to any other remedies.
   73 
   74 5. NO WARRANTY. ANY USE BY YOU OF THE SOFTWARE IS AT YOUR OWN RISK. THE
   75 SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. PSIONIC
   76 TECHNOLOGIES IS NOT OBLIGATED TO PROVIDE ANY SUPPORT FOR THE SOFTWARE OR
   77 PATCHES, UPDATES OR UPGRADES TO THE SOFTWARE. PSIONIC TECHNOLOGIES AND ITS
   78 LICENSORS DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS, STATUTORY OR
   79 IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE,
   80 MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME
   81 JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE
   82 EXCLUSION MAY NOT APPLY TO YOU. TO THE EXTENT THAT SUCH EXCLUSIONS DO NOT
   83 APPLY TO YOU, ALL WARRANTIES REQUIRED BY LAW SHALL EXTEND FOR ONLY SUCH
   84 PERIOD AS REQUIRED BY LAW OR THIRTY (30) DAYS FROM YOUR INITIAL ACCEPTANCE
   85 OF THESE TERMS, WHICHEVER PERIOD IS SHORTER. THE SOFTWARE IS NOT DESIGNED OR
   86 LICENSED FOR USE IN ANY NUCLEAR, AVIATION, MASS TRANSIT, MEDICAL APPLICATION
   87 OR IN ANY OTHER INHERENTLY DANGEROUS APPLICATIONS. YOU WARRANT THAT YOU WILL
   88 NOT USE THE SOFTWARE FOR THESE PURPOSES.
   89 
   90 
   91 6. NO LIABILITY FOR DAMAGES. In no event shall Psionic Technologies or its
   92 licensors be liable for any damages whatsoever (including, without
   93 limitation, incidental, direct, indirect, special and consequential damages,
   94 damages for loss of business profits, business interruption, loss of
   95 business information, loss or corruption of data, or other pecuniary loss),
   96 whether based on contract, tort (including negligence), strict liability or
   97 other legal or equitable theory, arising out of the use or inability to use
   98 the Software or arising out of or related to this Agreement, even if advised
   99 of the possibility of such damages. BECAUSE SOME JURISDICTIONS DO NOT ALLOW
  100 THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL
  101 DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY. TO THE EXTENT THAT SUCH
  102 LIMITATION DOES NOT APPLY TO YOU, IN NO EVENT SHALL PSIONIC TECHNOLOGIES'
  103 AND ITS LICENSOR'S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS
  104 AGREEMENT, INCLUDING, BUT NOT LIMITED TO THE USE OF OR INABILITY TO USE THE
  105 SOFTWARE, EXCEED $100.00.
  106 
  107 7. YOUR INDEMNITIES. You will indemnify and hold Psionic Technologies
  108 harmless from all actual liabilities, damages, losses, costs and expenses
  109 (including, but not limited to, attorneys' fees) incurred by Psionic
  110 Technologies to the extent arising out of any legal action based on (a) any
  111 breach of this Agreement by You; (b) any claim by a third party that Psionic
  112 Technologies, due to Your use of the Software, is liable for contributory
  113 infringement of a copyright, patent, trade secret, or other proprietary
  114 right of a third party, provided that this indemnity will not apply to any
  115 claim to the extent the Software as delivered by Psionic Technologies
  116 infringes on a proprietary right of a third party; or (c) any claim by a
  117 third party that Psionic Technologies, due to Your use of or inability to
  118 use the Software, is liable to a third party in tort or under statutory
  119 liability, including, without limitation, defamation, invasion of privacy,
  120 or similar theories of law.
  121 
  122 8. TERMINATION. This Agreement shall remain effective until terminated by
  123 either party. Psionic Technologies reserves the right, at its sole
  124 discretion, to terminate this Agreement immediately if You have breached the
  125 terms and conditions hereof or of Your Psionic Technologies and Service
  126 License Agreement or Web Site User Agreement. You may terminate this
  127 Agreement at any time by ceasing to use the Software. Upon termination of
  128 this Agreement for any reason, You shall cease using the Software and remove
  129 and destroy all copies of the Software in Your possession. The provisions of
  130 Sections 3, 4, 5, 6, 7, 8, 9, 11 and 14 shall survive termination.
  131 
  132 9. GOVERNING LAW. The parties expressly agree that the rights and
  133 obligations of each will be governed by the laws of the State of Texas
  134 excluding its choice of law rules. You hereby irrevocably consent to the
  135 nonexclusive jurisdiction and venue of the federal and state courts located
  136 in Travis County, Texas, with respect to any dispute arising out or related
  137 to this Agreement and agree not to commence or prosecute any claim or
  138 proceeding relating to any such dispute other than in the aforementioned
  139 courts. The parties expressly agree that the rights and obligations of each
  140 will not be governed by the U.N. Convention on Contracts for the
  141 International Sale of Goods.
  142 
  143 10. THIRD PARTY BENEFICIARIES. You are hereby notified that persons and
  144 entities which have licensed software to Psionic Technologies for inclusion
  145 in the Software are third party beneficiaries to this Agreement as it
  146 applies to their respective software included in the Software.
  147 
  148 11. EXPORT. You represent and warrant that you are entitled under United
  149 States export laws and regulations to obtain a copy of and use the Software
  150 pursuant to the terms of this Agreement. You agree to comply with all export
  151 laws and restrictions and regulations of the United States Department of
  152 Commerce or other United States agency or authority, and not to directly or
  153 indirectly export, or allow the export or re-export of the Software or
  154 derivatives of the Software or any copy or any direct product thereof in
  155 violation of any such restrictions, laws or regulations, or without all
  156 required licenses and authorizations.
  157 
  158 12. US GOVERNMENT RESTRICTED RIGHTS. If You are an agency, department, or
  159 other entity of the United States Government, the use, duplication,
  160 reproduction, release, modification, disclosure or transfer of the Software,
  161 manuals, or any technical specifications, or any related documentation of
  162 any kind, including technical data ("Software and documentation"), is
  163 restricted in accordance with Federal Acquisition Regulation ("FAR") 12.212
  164 for civilian agencies and Defense Federal Acquisition Regulation Supplement
  165 ("DFARS") 227.7202 for military agencies. The Software and documentation is
  166 commercial computer software and commercial computer software documentation.
  167 The use of the Software and documentation is further restricted in
  168 accordance with the terms of this Agreement, or any modification thereto.
  169 
  170 13. NO ASSIGNMENT. You may not assign or otherwise transfer in whole or in
  171 part or in any manner any rights, obligations, or any interest in or under
  172 this Agreement without Psionic Technologies' prior written consent and any
  173 attempted assignment will be void. A merger or other acquisition by a third
  174 party will be treated as an assignment.
  175 
  176 14. MISCELLANEOUS. If any provision of this Agreement shall be held illegal
  177 or unenforceable, that provision shall be limited or eliminated to the
  178 minimum extent necessary so that this Agreement shall otherwise remain in
  179 full force and effect, and enforceable. Any waivers or amendments shall be
  180 effective only if made in writing. This Agreement is the complete and
  181 exclusive understanding between You and Psionic Technologies and supersedes
  182 and cancels all prior and contemporaneous written and oral agreements and
  183 communications relating to the subject matter of this Agreement. Psionic
  184 Technologies' failure to enforce any provision of this Agreement shall not
  185 be deemed a waiver of such provision.
  186 
  187 15. NOTICE. Should You have any questions concerning this Agreement, or if
  188 You desire to contact Psionic Technologies for any reason, please write to
  189 Psionic Technologies at Psionic Technologies, Inc., 7501B North Capital of
  190 Texas Hwy, Austin, Texas 78731 U.S.A or send e-mail to: contracts@psionic.com.
  191 
  192 Psionic Technologies is a trademark of Psionic Technologies, Inc.
  193 
  194  2002, Psionic Technologies, Inc. All rights reserved.
  195