1 NETSCAPE CLIENT PRODUCTS LICENSE AGREEMENT 2 Redistribution Or Rental Not Permitted 3 4These terms apply to Netscape Communicator and Netscape Navigator. 5 6BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING NETSCAPE 7COMMUNICATOR OR NETSCAPE NAVIGATOR SOFTWARE (THE "PRODUCT"), THE 8INDIVIDUAL OR ENTITY LICENSING THE PRODUCT ("LICENSEE") IS 9CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS 10AGREEMENT. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS 11AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED, 12AND LICENSEE MUST NOT INSTALL OR USE THE SOFTWARE. 13 141. LICENSE AGREEMENT. As used in this Agreement, for residents of 15Europe, the Middle East or Africa, "Netscape" shall mean Netscape 16Communications Ireland Limited; for residents of Japan, "Netscape" 17shall mean Netscape Communications (Japan), Ltd.; for residents of 18all other countries, "Netscape" shall mean Netscape Communications 19Corporation. In this Agreement "Licensor" shall mean Netscape 20except under the following circumstances: (i) if Licensee acquired 21the Product as a bundled component of a third party product or 22service, then such third party shall be Licensor; and (ii) if any 23third party software is included as part of the default 24installation and no license is presented for acceptance the first 25time that third party software is invoked, then the use of that 26third party software shall be governed by this Agreement, but the 27term "Licensor," with respect to such third party software, shall 28mean the manufacturer of that software and not Netscape. With the 29exception of the situation described in (ii) above, the use of any 30included third party software product shall be governed by the 31third party's license agreement and not by this Agreement, whether 32that license agreement is presented for acceptance the first time 33that the third party software is invoked, is included in a file in 34electronic form, or is included in the package in printed form. 35If more than one license agreement was provided for the Product, 36and the terms vary, the order of precedence of those license 37agreements is as follows: a signed agreement, a license agreement 38available for review on the Netscape website, a printed or 39electronic agreement that states clearly that it supersedes other 40agreements, a printed agreement provided with the Product, an 41electronic agreement provided with the Product. 42 432. LICENSE GRANT. Licensor grants Licensee a non-exclusive and 44non-transferable license to reproduce and use for personal or 45internal business purposes the executable code version of the 46Product, provided any copy must contain all of the original 47proprietary notices. This license does not entitle Licensee to 48receive from Netscape hard-copy documentation, technical support, 49telephone assistance, or enhancements or updates to the Product. 50Licensee may not customize the Product unless Licensee has also 51licensed either the Netscape Client Customization Kit ("CCK") or 52Netscape Mission Control Desktop ("MCD"), and then only to the 53extent permitted in the license agreement for CCK or MCD, as 54applicable. Licensee may not redistribute the Product unless 55Licensee has separately entered into a distribution agreement with 56Netscape such as the Unlimited Distribution Program Agreement. 57 583. RESTRICTIONS. Except as otherwise expressly permitted in this 59Agreement, or in another Netscape agreement to which Licensee is a 60party such as the CCK license agreement, the MCD license agreement 61or a distribution agreement, Licensee may not: (i) modify or create 62any derivative works of the Product or documentation, including 63translation or localization; (ii) decompile, disassemble, reverse 64engineer, or otherwise attempt to derive the source code for the 65Product (except to the extent applicable laws specifically prohibit 66such restriction); (iii) redistribute, encumber, sell, rent, lease, 67sublicense, or otherwise transfer rights to the Product; (iv) 68remove or alter any trademark, logo, copyright or other proprietary 69notices, legends, symbols or labels in the Product; or (v) publish 70any results of benchmark tests run on the Product to a third party 71without Netscape's prior written consent. 72 734. FEES. There is no license fee for the Product. If Licensee 74wishes to receive the Product on media, there may be a small charge 75for the media and for shipping and handling. Licensee is 76responsible for any and all taxes. 77 785. TERMINATION. Without prejudice to any other rights, Licensor 79may terminate this Agreement if Licensee breaches any of its terms 80and conditions. Upon termination, Licensee shall destroy all 81copies of the Product. 82 836. PROPRIETARY RIGHTS. Title, ownership rights, and intellectual 84property rights in the Product shall remain in Netscape and/or its 85suppliers. Licensee acknowledges such ownership and intellectual 86property rights and will not take any action to jeopardize, limit 87or interfere in any manner with Netscape's or its suppliers' 88ownership of or rights with respect to the Product. The Product 89is protected by copyright and other intellectual property laws and 90by international treaties. Title and related rights in the content 91accessed through the Product is the property of the applicable 92content owner and is protected by applicable law. The license 93granted under this Agreement gives Licensee no rights to such 94content. 95 967. DISCLAIMER OF WARRANTY. THE PRODUCT IS PROVIDED FREE OF CHARGE, 97AND, THEREFORE, ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, 98INCLUDING WITHOUT LIMITATION THE WARRANTIES THAT IT IS FREE OF 99DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR 100NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE 101OF THE PRODUCT IS BORNE BY LICENSEE. SHOULD THE PRODUCT PROVE 102DEFECTIVE IN ANY RESPECT, LICENSEE AND NOT LICENSOR OR ITS 103SUPPLIERS OR RESELLERS ASSUMES THE ENTIRE COST OF ANY SERVICE AND 104REPAIR. IN ADDITION, THE SECURITY MECHANISMS IMPLEMENTED BY THE 105PRODUCT HAVE INHERENT LIMITATIONS, AND LICENSEE MUST DETERMINE THAT 106THE PRODUCT SUFFICIENTLY MEETS ITS REQUIREMENTS. THIS DISCLAIMER 107OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO 108USE OF THE PRODUCT IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS 109DISCLAIMER. 110 1118. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY 112APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS OR 113RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR 114CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE 115THE PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF 116GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY 117AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE 118POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE 119THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. 120IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION OF 121THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE 122FEES LICENSEE PAID FOR THIS LICENSE (IF ANY) AND FEES FOR SUPPORT 123OF THE PRODUCT RECEIVED BY NETSCAPE UNDER A SEPARATE SUPPORT 124AGREEMENT (IF ANY), WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY 125CAUSED BY THE NEGLIGENCE OF LICENSOR TO THE EXTENT APPLICABLE LAW 126PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME 127JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF 128INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND 129LIMITATION MAY NOT BE APPLICABLE. NETSCAPE IS NOT RESPONSIBLE FOR 130ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENSEE OR A 131THIRD PARTY THAT IS ACCESSED THROUGH THE PRODUCT AND/OR ANY 132MATERIAL LINKED THROUGH SUCH CONTENT. 133 1349. ENCRYPTION. If Licensee wishes to use the cryptographic 135features of the Product, then Licensee may need to obtain and 136install a signed digital certificate from a certificate authority 137or a certificate server. Licensee may be charged additional fees 138for certification services. Licensee is responsible for 139maintaining the security of the environment in which the Product 140is used and the integrity of the private key file used with the 141Product. In addition, the use of digital certificates is subject 142to the terms specified by the certificate provider, and there are 143inherent limitations in the capabilities of digital certificates. 144If Licensee is sending or receiving digital certificates, Licensee 145is responsible for familiarizing itself with and evaluating such 146terms and limitations. If the Product is a version with FORTEZZA, 147Licensee will need to obtain PC Card Readers and FORTEZZA Crypto 148Cards from another vendor to enable the FORTEZZA features. 149 15010. EXPORT CONTROL. Licensee agrees to comply with all export laws 151and restrictions and regulations of the United States or foreign 152agencies or authorities, and not to export or re-export the Product 153or any direct product thereof in violation of any such restrictions, 154laws or regulations, or without all necessary approvals. As 155applicable, each party shall obtain and bear all expenses relating 156to any necessary licenses and/or exemptions with respect to its own 157export of the Product from the U.S. Neither the Product nor the 158underlying information or technology may be downloaded or otherwise 159exported or re-exported (i) into Cuba, Iran, Iraq, Libya, North 160Korea, Sudan, Syria or any other country subject to U.S. trade 161sanctions covering the Product, to individuals or entities 162controlled by such countries, or to nationals or residents of such 163countries other than nationals who are lawfully admitted permanent 164residents of countries not subject to such sanctions; or (ii) to 165anyone on the U.S. Treasury Department's list of Specially 166Designated Nationals and Blocked Persons or the U.S. Commerce 167Department's Table of Denial Orders. By downloading or using the 168Product, Licensee agrees to the foregoing and represents and 169warrants that it complies with these conditions. 170 171If the Product is identified as being not-for-export (for example, 172on the box, media or in the installation process), then, unless 173Licensee has an exemption from the United States government, the 174following applies: EXCEPT FOR EXPORT TO CANADA FOR USE IN CANADA BY 175CANADIAN CITIZENS, THE PRODUCT AND ANY UNDERLYING ENCRYPTION 176TECHNOLOGY MAY NOT BE EXPORTED OUTSIDE THE UNITED STATES OR TO ANY 177FOREIGN ENTITY OR "FOREIGN PERSON" AS DEFINED BY U.S. GOVERNMENT 178REGULATIONS, INCLUDING WITHOUT LIMITATION, ANYONE WHO IS NOT A 179CITIZEN, NATIONAL OR LAWFUL PERMANENT RESIDENT OF THE UNITED 180STATES. BY DOWNLOADING OR USING THE PRODUCT, LICENSEE AGREES TO 181THE FOREGOING AND WARRANTS THAT IT IS NOT A "FOREIGN PERSON" OR 182UNDER THE CONTROL OF A "FOREIGN PERSON." 183 18411. HIGH RISK ACTIVITIES. The Product is not fault-tolerant and is 185not designed, manufactured or intended for use or resale as on-line 186control equipment in hazardous environments requiring fail-safe 187performance, such as in the operation of nuclear facilities, 188aircraft navigation or communication systems, air traffic control, 189direct life support machines, or weapons systems, in which the 190failure of the Product could lead directly to death, personal 191injury, or severe physical or environmental damage ("High Risk 192Activities"). Accordingly, Licensor and its suppliers specifically 193disclaim any express or implied warranty of fitness for High Risk 194Activities. Licensee agrees that Licensor and its suppliers will 195not be liable for any claims or damages arising from the use of the 196Product in such applications. 197 19812. U.S. GOVERNMENT END USERS. The Product is a "commercial item," 199as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting 200of "commercial computer software" and "commercial computer software 201documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 2021995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 203through 227.7202-4 (June 1995), all U.S. Government End Users 204acquire the Product with only those rights set forth herein. 205 20613. MISCELLANEOUS. (a) This Agreement constitutes the entire 207agreement between the parties concerning the subject matter hereof. 208(b) This Agreement may be amended only by a writing signed by both 209parties. (c) Except to the extent applicable law, if any, provides 210otherwise, this Agreement shall be governed by the laws of the 211State of California, U.S.A., excluding its conflict of law 212provisions. (d) Unless otherwise agreed in writing, all disputes 213relating to this Agreement (excepting any dispute relating to 214intellectual property rights) shall be subject to final and binding 215arbitration in Santa Clara County, California, under the auspices 216of JAMS/EndDispute, with the losing party paying all costs of 217arbitration. (e) This Agreement shall not be governed by the 218United Nations Convention on Contracts for the International Sale 219of Goods. (f) If any provision in this Agreement should be held 220illegal or unenforceable by a court having jurisdiction, such 221provision shall be modified to the extent necessary to render it 222enforceable without losing its intent, or severed from this 223Agreement if no such modification is possible, and other provisions 224of this Agreement shall remain in full force and effect. (g) The 225controlling language of this Agreement is English. If Licensee has 226received a translation into another language, it has been provided 227for Licensee's convenience only. (h) A waiver by either party of 228any term or condition of this Agreement or any breach thereof, in 229any one instance, shall not waive such term or condition or any 230subsequent breach thereof. (i) The provisions of this Agreement 231which require or contemplate performance after the expiration or 232termination of this Agreement shall be enforceable notwithstanding 233said expiration or termination. (j) Licensee may not assign or 234otherwise transfer by operation of law or otherwise this Agreement 235or any rights or obligations herein except in the case of a merger 236or the sale of all or substantially all of Licensee's assets to 237another entity. (k) This Agreement shall be binding upon and shall 238inure to the benefit of the parties, their successors and permitted 239assigns. (l) Neither party shall be in default or be liable for 240any delay, failure in performance (excepting the obligation to pay) 241or interruption of service resulting directly or indirectly from 242any cause beyond its reasonable control. (m) The relationship 243between Licensor and Licensee is that of independent contractors 244and neither Licensee nor its agents shall have any authority to 245bind Licensor in any way. (n) If any dispute arises under this 246Agreement, the prevailing party shall be reimbursed by the other 247party for any and all legal fees and costs associated therewith. 248(o) If any Netscape professional services are being provided, then 249such professional services are provided pursuant to the terms of a 250separate Professional Services Agreement between Netscape and 251Licensee. The parties acknowledge that such services are acquired 252independently of the Product licensed hereunder, and that provision 253of such services is not essential to the functionality of such 254Product. (p) The headings to the sections of this Agreement are 255used for convenience only and shall have no substantive meaning. 256(q) Licensor may use Licensee's name in any customer reference list 257or in any press release issued by Licensor regarding the licensing 258of the Product and/or provide Licensee's name and the names of the 259Product licensed by Licensee to third parties. 260 26114. LICENSEE OUTSIDE THE U.S. If Licensee is located outside the 262U.S., then the provisions of this Section shall apply. (i) Les 263parties aux pr�sentes confirment leur volont� que cette convention 264de m�me que tous les documents y compris tout avis qui s'y 265rattache, soient redig�s en langue anglaise. (translation: "The 266parties confirm that this Agreement and all related documentation 267is and will be in the English language.") (ii) Licensee is 268responsible for complying with any local laws in its jurisdiction 269which might impact its right to import, export or use the Product, 270and Licensee represents that it has complied with any regulations 271or registration procedures required by applicable law to make this 272license enforceable. 273 274 275Netscape Client Software EULA Rev. 092998 276