Binary Software Evaluation and Development Agreement iPlanetTM Webtop 2.0.1 THE EVALUATION AND DEVELOPMENT TERMS SET FORTH BELOW AND THE TERMS OF THE ATTACHED BINARY CODE LICENSE AGREEMENT (THE "LICENSE AGREEMENT") CONSTITUTE THE "EVALUATION AND DEVELOPMENT AGREEMENT." READ THE TERMS OF THE EVALUATION AND DEVELOPMENT AGREEMENT CAREFULLY BEFORE OPENING THE SOFTWARE MEDIA PACKAGE. BY OPENING THE SOFTWARE MEDIA PACKAGE, YOU AGREE TO THE TERMS OF THE EVALUATION AND DEVELOPMENT AGREEMENT. IF YOU ARE ACCESSING THE SOFTWARE ELECTRONICALLY, INDICATE YOUR ACCEPTANCE OF THE TERMS OF THE EVALUATION AND DEVELOPMENT AGREEMENT BY TYPING "YES" WHERE APPLICABLE. IF YOU DO NOT AGREE TO ALL THE TERMS OF THE EVALUATION AND DEVELOPMENT AGREEMENT, PROMPTLY RETURN THE UNUSED SOFTWARE TO YOUR PLACE OF PURCHASE FOR A REFUND OR, IF THE SOFTWARE IS ACCESSED ELECTRONICALLY, INDICATE YOUR NON-ACCEPTANCE BY TYPING "NO" WHERE APPLICABLE, AND DO NOT INSTALL OR USE THE SOFTWARE. YOUR INSTALLATION OR USE OF THE SOFTWARE ACCOMPANYING THE EVALUTION AND DEVELOPMENT AGREEMENT INDICATES THAT YOU ASSENT TO BE BOUND BY THE TERMS OF THE EVALUATION AND DEVELOPMENT AGREEMENT. Evaluation and Development Terms Capitalized terms not defined herein shall have the same meanings ascribed to them in the License Agreement. These Evaluation and Development Terms will supersede any inconsistent or conflicting terms in the License Agreement. 1. Notwithstanding Section 1 of the License Agreement, you may use one (1) copy of Software (including, but not limited to, libraries, source files, header files and data files) and any user manuals, programming guides and other documentation provided to you by Sun, solely for the purposes of internally designing, developing, evaluating and testing software products developed by you. You have no right to use Software for productive or commercial uses, and public deployment of Software is strictly prohibited. No license is granted for any other purpose. You may not transfer Software in whole or in part to any third party. 2. Software may contain a timebomb mechanism. You agree to hold Sun harmless from any claims based on your use of Software for any purposes. 3. The Evaluation and Development Agreement commences on the date on which you install Software (the "Effective Date") and will expire one hundred twenty (120) days from the Effective Date, unless terminated as provided herein. Upon expiration, you agree to immediately cease use of and destroy Software. 4. Sun is under no obligation to support Software or to provide upgrades or error corrections ("Updates") to Software. If Sun, at its sole option, supplies Software Updates to you, the Software Updates will be considered part of Software, and subject to the terms of the Evaluation and Development Agreement. 5. You may not publish or provide the results of any benchmark or comparison tests run on Software to any third party without the prior written consent of Sun. Sun Microsystems, Inc. Binary Code License Agreement 1. LICENSE TO USE. Sun grants you a non-exclusive and non-transferable license for the internal use only of the accompanying software and documentation and any error corrections provided by Sun (collectively "Software"), by the number of users and the class of computer hardware for which the corresponding fee has been paid. 2. RESTRICTIONS Software is confidential and copyrighted. Title to Software and all associated intellectual property rights is retained by Sun and/or its licensors. Except as specifically authorized in any Supplemental License Terms, you may not make copies of Software, other than a single copy of Software for archival purposes. Unless enforcement is prohibited by applicable law, you may not modify, decompile, or reverse engineer Software. You acknowledge that Software is not designed, licensed or intended for use in the design, construction, operation or maintenance of any nuclear facility. Sun disclaims any express or implied warranty of fitness for such uses. No right, title or interest in or to any trademark, service mark, logo or trade name of Sun or its licensors is granted under this Agreement. 3. LIMITED WARRANTY. Sun warrants to you that for a period of ninety (90) days from the date of purchase, as evidenced by a copy of the receipt, the media on which Software is furnished (if any) will be free of defects in materials and workmanship under normal use. Except for the foregoing, Software is provided "AS IS". Your exclusive remedy and Sun's entire liability under this limited warranty will be at Sun's option to replace Software media or refund the fee paid for Software. 4. DISCLAIMER OF WARRANTY. UNLESS SPECIFIED IN THIS AGREEMENT, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT THESE DISCLAIMERS ARE HELD TO BE LEGALLY INVALID. 5. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL SUN OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE SOFTWARE, EVEN IF SUN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event will Sun's liability to you, whether in contract, tort (including negligence), or otherwise, exceed the amount paid by you for Software under this Agreement. The foregoing limitations will apply even if the above stated warranty fails of its essential purpose. 6. Termination. This Agreement is effective until terminated. You may terminate this Agreement at any time by destroying all copies of Software. This Agreement will terminate immediately without notice from Sun if you fail to comply with any provision of this Agreement. Upon Termination, you must destroy all copies of Software. 7. Export Regulations. All Software and technical data delivered under this Agreement are subject to US export control laws and may be subject to export or import regulations in other countries. You agree to comply strictly with all such laws and regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export, or import as may be required after delivery to you. 8. U.S. Government Restricted Rights. If Software is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the Government's rights in Software and accompanying documentation will be only as set forth in this Agreement; this is in accordance with 48 CFR 227.7201 through 227.7202-4 (for Department of Defense (DOD) acquisitions) and with 48 CFR 2.101 and 12.212 (for non-DOD acquisitions). 9. Governing Law. Any action related to this Agreement will be governed by California law and controlling U.S. federal law. No choice of law rules of any jurisdiction will apply. 10. Severability. If any provision of this Agreement is held to be unenforceable, this Agreement will remain in effect with the provision omitted, unless omission would frustrate the intent of the parties, in which case this Agreement will immediately terminate. 11. Integration. This Agreement is the entire agreement between you and Sun relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter during the term of this Agreement. No modification of this Agreement will be binding, unless in writing and signed by an authorized representative of each party. For inquiries please contact: Sun Microsystems, Inc. 901 San Antonio Road, Palo Alto, California 94303