FOURTH BERKELEY SOFTWARE DISTRIBUTION LICENSE AGREEMENT .vs 18 .nr VS 18

THIS LICENSE AGREEMENT is made and entered into by and between THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, (``THE REGENTS'') a California corporation, and \l'5.4i'\|, a \l'2.6i' having its principal office at \l'3.2i'\|, hereinafter ``LICENSEE'', and shall become effective on the date of execution by THE REGENTS. .vs .vs 15 .nr VS 15

W I T N E S S E T H: .R

WHEREAS, AMERICAN TELEPHONE & TELEGRAPH CORPORATION and/or its predecessor WESTERN ELECTRIC COMPANY, INCORPORATED (hereinafter jointly known as ``AT&T'') is the proprietor and owner of the UNIX/32V Time Sharing System, Version 1.0 (hereinafter ``UNIX/32V''), UNIX System III (hereinafter ``SYSTEM-III''), and UNIX System V (hereinafter ``SYSTEM-V''); and

WHEREAS, THE REGENTS is the proprietor and owner of enhancements and additions to UNIX/32V, which together with parts of UNIX/32V comprise computer programs and documentation entitled ``Fourth Berkeley Software Distribution;'' and

WHEREAS, the Fourth Berkeley Software Distribution includes some material contributed by persons other than agents, officers, and employees of THE REGENTS (hereinafter ``Other Contributors'') and these Other Contributors are identified within the Fourth Berkeley Software Distribution; and

WHEREAS, THE REGENTS has been authorized by AT&T to distribute the Fourth Berkeley Software Distribution to licensees who are also AT&T's licensees for UNIX/32V, SYSTEM-III, or SYSTEM-V; and

WHEREAS, LICENSEE warrants and represents that it is an AT&T licensee for UNIX/32V, SYSTEM-III, or SYSTEM-V; and

WHEREAS, LICENSEE desires to obtain from THE REGENTS, and THE REGENTS desires to grant to LICENSEE, a license to use the computer programs and documentation comprising the Fourth Berkeley Software Distribution;

NOW, THEREFORE, in consideration of the mutual covenants, conditions and terms hereinafter set forth, and for other good and valuable consideration, THE REGENTS hereby grants to LICENSEE the nonexclusive right to use and to sublicense the Fourth Berkeley Software Distribution, the components of which are described on the attached Schedule A, subject to the terms and conditions of this Agreement and LICENSEE hereby accepts such license solely upon such terms and conditions.

\01. Term. The term of this Agreement shall commence on the effective date hereof, and, unless sooner terminated as hereinafter set forth, shall terminate when LICENSEE's UNIX/32V, SYSTEM-III, or SYSTEM-V license terminates. Either THE REGENTS or LICENSEE may terminate this Agreement upon thirty (30) days' written notice to the other party. This license shall terminate thirty (30) days after notice from THE REGENTS to LICENSEE that LICENSEE is in breach of this Agreement unless within that time LICENSEE gives notice satisfactory to THE REGENTS that such breach has been corrected. Upon termination, LICENSEE shall immediately destroy the Fourth Berkeley Software Distribution and all copies thereof including any copies contained in any storage apparatus or medium and shall cease use and sublicensing thereof.

\02. Fees. The distribution fee for this license and delivery of one physical copy of the Fourth Berkeley Software Distribution is two thousand dollars ($2,000.00), as indicated on Exhibit A, which is incorporated into this Agreement. LICENSEE may obtain additional copies and new releases of the Fourth Berkeley Software Distribution which THE REGENTS may choose to make available under the terms of this Agreement by paying an additional distribution fee determined by THE REGENTS. Distribution fees are due and payable in advance. Distribution fees do not include local, state or federal taxes, and LICENSEE hereby agrees to pay all such taxes as may be imposed upon LICENSEE or THE REGENTS with respect to the distribution, possession, use, or sublicensing of the Fourth Berkeley Software Distribution pursuant to this Agreement.

\03. Title. LICENSEE agrees that the Fourth Berkeley Software Distribution is, and shall at all times remain the property of THE REGENTS. LICENSEE shall have no right, title or interest therein or thereto except as expressly set forth in this Agreement. The version of Fourth Berkeley Distribution licensed hereunder is alpha release 4.4BSD-Encumbered and any subsequently modified versions of said alpha release.

\04. AT&T Proprietary Software. LICENSEE and THE REGENTS agree that the Fourth Berkeley Software Distribution contains proprietary software belonging to AT&T and licensed by AT&T as UNIX/32V. LICENSEE represents and warrants that it has obtained and currently holds a valid license from AT&T to use UNIX/32V, SYSTEM-III, and/or SYSTEM-V and has provided a copy of this license to THE REGENTS attached as Schedule B. LICENSEE agrees to treat AT&T's proprietary software included in the Fourth Berkeley Software Distribution in the same manner as if such included proprietary software had been received directly pursuant to LICENSEE's license from AT&T. It is agreed that should the LICENSEE's license from AT&T be modified, for example, to include additional CPUs or to upgrade from a UNIX/32V license to a SYSTEM-V license, the terms of the modified license will govern the use of the Fourth Berkeley Software Distribution. LICENSEE further agrees that the mark ``UNIX'' is a Trademark of Bell Laboratories.

\05. Duplication. LICENSEE has the right to duplicate the Fourth Berkeley Software Distribution as required pursuant to its use and sublicensing as allowed by this Agreement provided that such duplication is allowed under the terms of LICENSEE's UNIX/32V, SYSTEM-III, or SYSTEM-V license with AT&T.

\06. Sublicensing by Licensee. LICENSEE may sublicense the use of the Fourth Berkeley Software Distribution to third parties provided that:

Material so sublicensed may be either modified or unmodified by LICENSEE. LICENSEE may, but need not, charge a fee for such licenses.

\07. Proper Credit and Recognition. In the use of any part of the Fourth Berkeley Software Distribution, LICENSEE will give appropriate credit to THE REGENTS and the Electrical Engineering and Computer Sciences Department at the Berkeley Campus of the University of California and to the Other Contributors for their roles in its development. If LICENSEE is providing documentation similar to that which is provided with the Fourth Berkeley Software Distribution, notices similar to those included in that documentation suffice to satisfy this requirement. If LICENSEE is providing new documentation, this requirement will be satisfied if each document includes the following statement: ``This software and documentation is based in part on the Fourth Berkeley Software Distribution under license from The Regents of the University of California. We acknowledge the following individuals and institutions for their role in its development: [insert names of individuals and institutions which appear in the documentation provided to the LICENSEE as part of the Fourth Berkeley Software Distribution for those portions of said Distribution used by LICENSEE].''

\08. Disclaimer of Warranties. The Fourth Berkeley Software Distribution is provided by THE REGENTS and the Other Contributors on an ``As Is'' basis. Neither THE REGENTS nor the Other Contributors warrant that the functions contained in the Fourth Berkeley Software Distribution will meet LICENSEE's requirements or will operate in the combinations which may be selected for use by the LICENSEE, or that the operation of the Fourth Berkeley Software Distribution will be uninterrupted or error free. NEITHER THE REGENTS NOR THE OTHER CONTRIBUTORS MAKE ANY WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION, THE CONDITION OF THE FOURTH BERKELEY SOFTWARE DISTRIBUTION, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE.

\09. Disclaimer of Proprietary Rights Warranty. THE REGENTS DOES NOT WARRANT THAT THE USE OF FOURTH BERKELEY SOFTWARE DISTRIBUTION WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADE SECRET, OR OTHER PROPRIETARY OR CONTRACTUAL RIGHT OF ANOTHER PARTY. THE LIMITATION OF LIABILITY SET FORTH IN THIS AGREEMENT IS APPLICABLE TO ANY CLAIM THAT FOURTH BERKELEY SOFTWARE DISTRIBUTION, OR ANY PORTION THEREOF, INFRINGES ANOTHER'S PATENT, COPYRIGHT, TRADE SECRET, OR OTHER PROPRIETARY OR CONTRACTUAL RIGHT.

10. Lack of Maintenance Services. LICENSEE understands and agrees that THE REGENTS and the Other Contributors are under no obligation to provide either maintenance services, update services, notices of latent defects, or correction of defects for the Fourth Berkeley Software Distribution.

11. Patent, Trade Secret and Copyright Infringement. If THE REGENTS gives formal written notice to LICENSEE that there has been a claim, or is likely to be a claim, that the Fourth Berkeley Software Distribution infringes a patent, copyright, trade secret, or other contractual or proprietary right, LICENSEE agrees to either:

12. Indemnification. LICENSEE agrees to indemnify, defend, and hold harmless THE REGENTS and the Other Contributors, their successors, agents, officers, and employees, either in their individual capacities or by reason of their relationship to THE REGENTS or the Other Contributors, with respect to any expense, claim, liability, loss or damages, including direct, indirect, special, incidental, or consequential (including lost profits) damages, whether incurred, made or suffered by LICENSEE or any of its sublicensees or by other third parties, in connection with or in any way arising out of the furnishing, sublicensing, performance or use of the Fourth Berkeley Software Distribution in connection with this Agreement. LICENSEE's obligations under this paragraph include, but are not limited to, its obligation to indemnify, defend, and hold THE REGENTS and the Other Contributors, their agents, officers, and employees harmless in the case of any claim of patent, copyright, trade secret, or other contractual or proprietary rights infringement based in any manner on LICENSEE's use or sublicensing of the Fourth Berkeley Software Distribution.

13. Limitation of Liability. THE REGENTS SHALL NOT BE LIABLE FOR ANY COSTS, DAMAGES, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL (INCLUDING LOST PROFITS), FEES, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, OR OTHER LIABILITY WITH RESPECT TO ANY CLAIM BY LICENSEE OR ANY THIRD PARTY ON ACCOUNT OF OR ARISING FROM THIS AGREEMENT OR USE OF THE FOURTH BERKELEY SOFTWARE DISTRIBUTION.

14. Legal Expenses. In case legal action is taken by either party to enforce this Agreement, all costs and expenses, including reasonable attorney's fees, incurred by the prevailing party in exercising any of its rights or remedies hereunder or in enforcing any of the terms, conditions, or provisions hereof shall be paid by the other party.

15. Severability. If any part, term or provision of this Agreement shall be held illegal, unenforceable or in conflict with any law of a federal, state or local government having jurisdiction over this Agreement, the validity of the remaining portions or provisions shall not be affected thereby.

16. Governing Law. The laws of the State of California and the United States of America shall control this Agreement. Any dispute arising under this Agreement shall be heard by the appropriate State of California court or United States federal court in California.

17. Paragraph Headings. The headings herein are inserted for convenience only and shall not be construed to limit or modify the scope of any provision of this Agreement.

18. Entire Agreement. This Agreement contains all the agreements, representations, and understandings of the parties hereto and supersedes any previous understandings, commitments or agreements, oral or written. No modification to this Agreement shall be effective unless in a writing signed by both parties.

19. Authority. Each of the undersigned warrants that he/she has the authority to bind to this Agreement the party which he/she represents. IN WITNESS WHEREOF, THE REGENTS and LICENSEE have executed this Agreement on the dates specified below. The effective date of this Agreement shall be the date of execution by THE REGENTS. .vs 12 THE REGENTS OF THE

UNIVERSITY OF CALIFORNIA

(Licensor) By:\l'|6i-20m' \l'|6i-20m' (Title) Date:\l'|6i-20m' \l'|6.125i-20m' \l'|6.125i-20m' \l'|6.125i-20m' (Licensee) By:\l'|6i-20m' \l'|6i-20m' (Title) Date:\l'|6i-20m' .R