LICENSE AGREEMENT FOR SPECgpc BENCHMARK PRODUCTS

LICENSE AGREEMENT FOR SPECopc^SM BENCHMARK PRODUCTS

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IMPORTANT NOTICE TO USER: PLEASE READ CAREFULLY. THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE MATERIALS BETWEEN YOU AND SPEC, SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION OR UNDERSTANDING BETWEEN THE PARTIES.

WHETHER YOU ACQUIRED SPECviewperf™ OR SPECglperf™ THROUGH A CDROM, THEY WERE DOWNLOADED FROM THE INTERNET, THEY WERE PRELOADED ON YOUR COMPUTER OR BY ANY OTHER MANNER, YOU SHOULD NOTE THAT THE MATERIALS CONTAIN CERTAIN SOFTWARE PROGRAMS AND OTHER PROPRIETARY MATERIAL (THE "SOFTWARE PRODUCT") WHICH ARE SUBJECT TO THE TERMS OF THIS LICENSE AGREEMENT (THE "AGREEMENT"). THE "SOFTWARE PRODUCT" INCLUDES THE SPECviewperf SOFTWARE IN SOURCE AND OBJECT CODE FORMAT, SPECviewperf "VIEWSETS" (INCLUDING ALL RELATED GEOMETRIC MODELS AND IMAGES), SPECglperf SOFTWARE IN SOURCE AND OBJECT CODE FORMAT, SPECglperf "SCRIPTS", ALL SPECopc REPORTING FORMS, AND ANY UPGRADES, UPDATES, MODIFICATIONS OR NEW RELEASES, ANY PRINTED MATERIALS AND ANY "ON LINE" OR ELECTRONIC DOCUMENTATION RELATING THE SOFTWARE PRODUCT AS PROVIDED TO YOU FROM TIME TO TIME BY SPEC. IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT, YOU MUST CEASE ALL EFFORTS TO INSTALL/DOWNLOAD THE SOFTWARE PRODUCT AND RETURN OR DESTROY ALL ORIGINALS AND COPIES OF THE SOFTWARE PRODUCT, INCLUDING ANY PRINTED MATERIALS OR ELECTRONIC DOCUMENTATION, IN YOUR POSSESSION, CUSTODY OR CONTROL.

NOTE: If USER has any questions about any part of this AGREEMENT, USER may either: (i) send an e-mail to the address given below and a representative of SPEC will be glad to respond to USER; or (ii) USER may print a copy of this AGREEMENT for the purposes of either obtaining legal advice from USER’s legal counsel or reviewing this AGREEMENT prior to agreeing to the terms of this AGREEMENT and prior to using the SOFTWARE PRODUCT.

TERMS AND CONDITIONS

USER (either an individual or business entity) agrees to license the SOFTWARE PRODUCT from SPEC in accordance with the following terms:

1. Grant. SPEC hereby grants USER a nontransferable, nonexclusive, non-assignable, non-sublicenseable, royalty-free license to use the SOFTWARE PRODUCT, subject to the restrictions and conditions set forth below. Except as specifically provided in this AGREEMENT, no other right of any kind or license is to be implied by or inferred from any of the provisions of this AGREEMENT or by the conduct of USER or SPEC.

2. Copies. USER may make only exact and complete copies of the original of the SOFTWARE PRODUCT (modification or merger with other software is allowed only as specified in the Run and Reporting Rules for the given SPEC Benchmark product). Except for making one copy solely for back-up purposes, copying of the SOFTWARE PRODUCT or any portion thereof, including any of the printed materials or electronic materials, is expressly forbidden.

3. Scope of Use. The SOFTWARE PRODUCT may be used only for the generation of data regarding measurement and analysis of computer system (hardware and software) performance on that SOFTWARE PRODUCT.

4. Reports. In order to preserve the integrity of SPEC's performance standards, USER agrees to use the SOFTWARE PRODUCT in accordance with the rules published by SPEC. If the USER chooses to publicly report measured results, the reporting must be strictly in accordance with the rules published by SPEC for the SOFTWARE PRODUCT. Furthermore, USER must also clearly identify SPEC, the name and version number of the benchmark SOFTWARE PRODUCT used (e.g., SPECviewperf™ ProCDRS-02 Viewset).

5. Term. SPEC may terminate this AGREEMENT at any time by notifying USER. USER may terminate this AGREEMENT at any time by returning, destroying or erasing all forms and copies of the SOFTWARE PRODUCT. This AGREEMENT will terminate automatically if USER fails to comply with any of the terms and conditions of this AGREEMENT. Upon termination of this AGREEMENT, USER agrees to cease all use of the SOFTWARE PRODUCT, including the publication of benchmark test results obtained by USER from use of the SOFTWARE PRODUCT. USER further agrees to immediately return, destroy, delete or erase the SOFTWARE PRODUCT, including all tangible copies of the SOFTWARE PRODUCT and other materials related to the SOFTWARE PRODUCT in USER’s possession or under USER’s control. In the event of termination, the Sections 4, 6, 7, 10, 11 and 15 shall survive.

6. Use of Name. It is acknowledged that all trademark, service mark, and trade name rights in the names are owned exclusively by SPEC and such ownership shall be acknowledged in any use of the name by the USER (i.e. - noting that these are "trademarks of the Standard Performance Evaluation Corporation").

7. Ownership Of Software. This AGREEMENT does not constitute a sale of the SOFTWARE PRODUCT but a license to use the SOFTWARE PRODUCT in accordance with the terms of this Agreement. USER acknowledges that title, ownership and all intellectual property rights in and to the SOFTWARE PRODUCT and any copies of the SOFTWARE PRODUCT are owned by and remain with SPEC.

8. Maintenance and Support. SPEC has no obligation to provide support, maintenance, updates, modifications or new releases of the SOFTWARE PRODUCT to USER under this AGREEMENT.

9. Indemnity. USER agrees to indemnify and hold SPEC harmless from any claims, expenses, or liabilities caused by USER's use of the SOFTWARE PRODUCT or by USER's publication or use of data arising from its use of the SOFTWARE PRODUCT.

Disclaimer of Warranties. SPEC MAKES NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, RELATING TO THE USE OR PERFORMANCE OF THE SOFTWARE PRODUCT, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OF PURPOSE, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED AND EXCLUDED BY SPEC.

USER RECOGNIZES THAT THE PRODUCTS ARE THE RESULT OF A COOPERATIVE, NON-PROFIT EFFORT AND THAT SPEC DOES NOT CONDUCT A TYPICAL BUSINESS. USER ACCEPTS THE SOFTWARE PRODUCT "AS IS" AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED.

10. Limitation of Liability. SPEC assumes no liability with respect to the the SOFTWARE PRODUCT, including liability for infringement of intellectual property rights, negligence, or any other liability.

SPEC is not aware of any infringement of copyright or patent that may result from its transfer to USER of the SOFTWARE PRODUCT. If USER receives any notice of infringement, such notice shall be immediately communicated to SPEC who will take immediate action to evaluate the claim and, if practicable, modify the SOFTWARE PRODUCT as necessary to avoid infringement. USER waives any claim against SPEC in the event of such infringement.

In no event will SPEC be liable for any indirect, special, incidental or consequential damages arising out of or in connection with this agreement, including the use or performance of the SOFTWARE PRODUCT, even if SPEC shall have knowledge of the possibility of such potential.

11. No Assignment. This AGREEMENT is not assignable or transferable by USER without the prior written consent of SPEC and any attempt to do so shall be void.

12. Export Assurance. In respect to the Export Administration Regulations (EAR) of the United States Department of Commerce, and in further consideration of all the present and future technical data to be disclosed by SPEC, USER hereby gives assurance to SPEC that USER will not knowingly, without prior written authorization from the Department of Commerce, Bureau of Export Administration, export or re-export or otherwise disclose directly or indirectly, either the technical data received from SPEC or the direct product of such technical data to any country in the Country Group Q, S, W, Y or Z, as defined in the EAR. The countries falling under the above mentioned groups, as of the date of this agreement include:

Cuba

Iran

Iraq

Libya

North Korea

Sudan

Syria

Rwanda

Federal Republic of Yugoslavia

(Serbia and Montenegro)

This is subject to change and should be checked by USER before any export or re-export. (The term ‘direct product’ refers to the immediate product (including processes and services) produced directly by the use of technical data.

13. Governing Law. This agreement shall be construed and governed in accordance with the laws of the State of California. If any term of this agreement is declared void or not enforceable by any competent court of jurisdiction, all other terms shall remain in effect.

14. No Waiver. The failure of either party to enforce any term herein or to take action in the event or any violation of these terms shall not be deemed a waiver by that party as to the subsequent enforcement of any rights.

15. Complete Understanding. This AGREEMENT constitutes the entire agreement between USER and SPEC and supersedes all previous representations or agreements, whether oral or written. If USER is acquiring the SOFTWARE PRODUCT through a download from the Internet, and if any term of the Legal Notice page from that Website conflicts with a term or terms of this AGREEMENT, the terms of this AGREEMENT will govern.

If you do not agree to the terms of this AGREEMENT, cease any further attempt to install/download the SOFTWARE PRODUCT and return or destroy all originals and copies of the SOFTWARE PRODUCT, including any printed materials or electronic documentation in your possession, custody or control.

INQUIRIES: If you have any comments, problems, questions or suggestions about the SOFTWARE PRODUCT or the terms of this AGREEMENT stated above, please send an e-mail to gpcopc-info@spec.org. Please include as much detail as possible in your email.