
Ensim WEBppliance LS
License and Warranty Agreement

This Agreement is between you, your principals, officers, directors, employees, agents and/or successors ("You") and Ensim Corporation ("Ensim"), and sets forth the terms and conditions governing your access to and use of the Ensim WEBppliance LS computer programs including, without limitation, the WEBppliance LS license key(s), software and source code, and information, services, products, features and materials included therewith (collectively, "WEBppliance LS"). As a convenience to You, this WEBppliance LS distribution also includes third-party software products, and Your use of each included third-party product is subject to separate licensing agreements included therewith. Among other things, this Agreement describes your responsibilities and limits Ensim's liabilities. Please read it carefully before accepting. BY PRESSING THE "I ACCEPT" BUTTON AND/OR DOWNLOADING, COPYING OR USING WEBPPLIANCE LS, YOU ACCEPT, WITHOUT LIMITATION OR QUALIFICATION, ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT. If you have any questions about these terms and conditions, please contact Ensim at WEBppliance LS@ensim.com or 1-866-ENSIM-33 (International: 1-408-541-4498). 

1. Use of WEBppliance LS; License. Subject to all the terms and conditions of this Agreement, Ensim grants to You a personal, royalty-free, nonsublicensable, nontransferable, nonexclusive license to use WEBppliance LS on a single network server during the term of this Agreement. You may make one archival copy of WEBppliance LS, and You agree that You will not otherwise copy or reproduce, distribute, or modify WEBppliance LS or any portion thereof. Ensim expressly reserves the right to monitor Your usage of WEBppliance LS for compliance with the terms and conditions of this Agreement. Except to the extent that the following restriction is prohibited by applicable law, if any, You shall not reverse assemble, reverse compile or reverse engineer any software source code or other components of WEBppliance LS, or otherwise attempt to discover any underlying Proprietary Information (as that term is defined below). 

2. Ownership. Except as expressly licensed in Section 1 above, as between the parties, Ensim owns all right, title and interest in and to WEBppliance LS and Proprietary Information. Ownership of included third-party products remains with their respective holders. 

3. Confidentiality. You acknowledge that, in the course of using WEBppliance LS, you may obtain or develop information relating to WEBppliance LS and/or to Ensim ("Proprietary Information"), including, but not limited to, technology, software code, know-how, ideas, testing procedures, structure, interfaces, documentation, problem reports, analysis and performance information, and other technical, business, product, marketing and financial information, plans and data. During and after the term of this Agreement, you shall hold in confidence and protect, and shall not use (except as expressly authorized by this Agreement) or disclose, Proprietary Information, unless such Proprietary Information becomes part of the public domain without breach of this Agreement by You. You acknowledge and agree that due to the unique nature of Ensim's Proprietary Information, there can be no adequate remedy at law for any breach of your obligations hereunder, that any such breach may allow You or third parties to unfairly compete with Ensim resulting in irreparable harm to Ensim, and therefore, that upon any such breach or threat thereof, Ensim shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law. 

4. No Training or Support Obligation.  Ensim shall have no obligation under this Agreement to provide any training or support or to correct any bugs, defects or errors or to otherwise support, develop or maintain WEBppliance LS or any included third-party products. Ensim will not provide technical support for any unauthorized software installations, client enhancements, server-side upgrades, or third-party software installations or upgrades not included with this distribution. Any modifications of or upgrades to the software included with this distribution may jeopardize the performance and reliability of WEBppliance LS. 

5. Encryption Software. You understand and acknowledge that WEBppliance LS and certain included third-party applications contain certain encryption software (the "Encryption Software") which is a U.S. product with cryptographic functionalities which are subject to U.S. export controls under the Export Administration Regulations. You understand and acknowledge that the Encryption Software may only be exported and re-exported with a license in accordance with U.S. export control laws and regulations. Without limiting the foregoing, you understand and acknowledge that the Encryption Software (1) shall not be delivered without a license to Cuba, Iran, Iraq, Libya, North Korea, Serbia, Sudan or Syria, or to any other country which may become subject to such restrictions in the future; and (2) shall not be delivered without a license to any entity which has been declared ineligible to receive U.S. exports or to any entity which engages in the development, production, or stockpiling of missiles or nuclear, chemical, or biological weapons. 

6. United States Government Restricted Rights. WEBppliance LS is provided with Restricted Rights. Use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in subparagraph (c)(f)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable. Contractor/manufacturer is Ensim Corporation at 1366 Borregas Avenue, Sunnyvale, CA 94089. 

7. Warranty Disclaimer. The parties acknowledge and agree that WEBppliance LS and/or any included third-party products may not function correctly or at all on your machine or in any environment and are therefore provided "AS-IS" and at your sole risk. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ENSIM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ENSIM MAKES NO WARRANTY TO ANY PERSON RELATING TO WEBPPLIANCE LS AND/OR INCLUDED THIRD PARTY PRODUCTS, THE USE OR ANY INABILITY TO USE WEBPPLIANCE LS AND/OR INCLUDED THIRD PARTY PRODUCTS, THE RESULTS OF THEIR USE, OR THAT ERRORS IN WEBPPLIANCE LS AND/OR INCLUDED THIRD-PARTY PRODUCTS WILL BE CORRECTED. NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS PERMITTING YOU TO RELY IN ANY WAY ON THE CONTINUED USE OF WEBPPLIANCE LS AND/OR INCLUDED THIRD-PARTY PRODUCTS OR ANY FURTHER DEVELOPMENT OR COMMERCIAL RELEASES THEREOF. 

8. Limitation of Remedies and Damages. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ENSIM SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR ANY (A) LOSS OR INACCURACY OF DATA, (B) DAMAGE TO SOFTWARE OR EQUIPMENT, (C) INABILITY TO DELIVER GOODS, SERVICES OR TECHNOLOGY, (D) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (E) INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, DATA OR PROFITS, OR (F) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. 

9. Term and Termination. If You have received or subsequently acquire a standard version of WEBppliance LS, this Agreement shall remain in effect until either of the parties terminates the Agreement as provided herein. This Agreement may be terminated by you for any reason or no reason upon written notice to Ensim. This Agreement may be terminated by Ensim, with or without notice, immediately upon Your breach of any provision of this Agreement. Notice can be delivered by any means, including electronic mail. Upon termination or expiration, the terms of this Agreement will remain in full force and effect, except the license granted in Section 1 shall terminate and You will immediately cease all use of WEBppliance LS and destroy all copies or portions of WEBppliance LS and Proprietary Information in your possession or control. 

10. No Assignment. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by You without Ensim's express written consent, and any such attempted assignment or transfer shall be void and without effect. 

11. Controlling Law; Severability. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to conflicts of laws provisions thereof. You agree to submit to the exclusive jurisdiction and venue of the federal and state courts located in the State of California and County of Santa Clara. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. 

12. Entire Agreement; Amendment; Waiver. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and supercedes any and all written or oral agreements heretofore existing between the parties. No waiver or modification of this Agreement will be binding upon either party unless made in a writing signed by both parties and no failure or delay in enforcing any right will be deemed a waiver. 

 
