SILICON GRAPHICS INTERNATIONAL CORP. ("SGI")
END USER LICENSE AGREEMENT ("License")
SGI High-Throughput Computing (HTC) Driver for Bioinformatics for SGI® Rackable®, SGI® ICE™ and SGI® UV™ systems.
CAUTION! THIS LICENSE APPLIES TO SOFTWARE YOU ARE ABOUT TO DOWNLOAD, AND ANY MODIFICATIONS THERETO FROM SGI UNDER COLLATERAL SUPPORT AGREEMENTS, IF ANY (collectively, the "Licensed Software"). SINCE ONLY THIS LICENSE GRANTS ANY RIGHTS TO YOU, ANY OTHER USE IS UNLAWFUL. YOUR DOWNLOAD OF THE LICENSED SOFTWARE, AND/OR YOUR USE OR INSTALLATION OF THE LICENSED SOFTWARE, INDICATES YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS LICENSE, AND YOUR AUTHORIZATION TO CONTRACTUALLY BIND THE PERSON OR ENTITY ON WHOSE BEHALF YOU HAVE DONE SO. References herein to "You" and "Your" refer to both you and such person or entity in whose behalf you act, if any.
1. General. The Licensed Software consists of a software program, or a package of separate programs, protected by copyright and other intellectual property laws, regulations, and treaties. The Licensed Software is not maintained or supported except pursuant to such independent agreements into which You may enter with SGI and/or its suppliers. Certain programs that may be included with the Licensed Software ("Other Software," as defined below) may be wholly or partially subject to other license terms and conditions, as indicated below.
2. Grant of License; Restricted Software Use Restrictions. Subject to applicable restrictions herein, including without limitation those in the Section herein entitled "Other Software Licenses," for the duration of intellectual property rights inherent in the Licensed Software (or, if the Licensed Software is installed on a leased SGI System, for the term of the lease), SGI hereby grants You a limited and non-exclusive license, to use the Licensed Software in conformance with this License and any accompanying documentation in written or electronic format, on the SGI computer hardware and operating system ("SGI System") of initial installation ("Original System"), and subject to the following:
2.1. The following specific use for the Licensed Software is authorized: To load the Licensed Software into an/the Original System and make such Use as accords with the License.
2.2. Any user, node, network, system and/or other restrictions made applicable to You through accompanying documentation, information at the download site, READMEs accompanying the Licensed Software, or otherwise, are hereby incorporated by this reference (collectively, with the use described in Section 2.1, "Use").
2.3. The following are impermissible, whether done directly or indirectly, and/or wholly or partially: Use or transfer for use in connection with actual construction, maintenance, and/or operation of any nuclear facility, aircraft, aircraft communication or aircraft ground support system, or life support system ("High Risk Use"), for which the Licensed Software is neither designed nor intended; making the Licensed Software available in any way on an application service provider basis, as a hosted and/or managed application, or as a bureau service; subject to the Section herein regarding Transfer, Your redistribution, hypothecation, encumbrance, loan, lease, or other transfer of the Licensed Software; if not provided in source code format, subject to applicable law, any attempt to derive source code to the Licensed Software, except as permitted at law and with prior notice to SGI so that it may obviate any need to derive the source in order to achieve interoperability, or to discover un-protectable elements; duplication other than for archival purposes and otherwise as legally permitted; disturbance of any notices of intellectual property or other proprietary rights; and, except as to on-line documentation copied for archival purposes, any copying of documentation.
2.4. SGI transfers no ownership interest in the Licensed Software other than as expressly stated. SGI may, in its sole discretion, determine which of its products to continue to make available and/or support over time. SGI and its suppliers reserve all rights not expressly granted.
3. Transfer/Assignment Restrictions. You may transfer the Licensed Software and related licenses only upon SGI's prior written consent, subject to reasonable terms and conditions, including without limitation the following: (i) You deliver to SGI the transferee's original signed written agreement to be bound by the provisions of this License; (ii) You transfer all copies of the Licensed Software and accompanying materials to the transferee, or destroy them; (iii) You transfer the Licensed Software with the Original System; (iv) and, You pay any applicable then-current SGI transfer fees. You may not otherwise wholly or partially transfer or assign any rights or delegate any obligations under this License.
4. Enforcement of Terms; Termination. This License will terminate upon the earlier of: (i) your breach of any material obligation under this License, without cure within 30 days; and (ii) your termination of this License. Any suppliers to SGI of portions of the Licensed Software are third-party beneficiaries of this License, and may enforce it in relation to their own intellectual property within the Licensed Software, if any. Within 30 days of termination, You will deliver to SGI or render unusable all of the Licensed Software and any copies thereof. Notwithstanding any provision of this License, SGI and/or its suppliers may pursue all available legal and equitable remedies, without the necessity of posting any security.
5. U. S. Government Users. This software was developed at private expense; if acquired for the USA government or any contractor thereto, it is acquired as "commercial computer software" subject to the provisions of this License, as specified in (a) 48 CFR 12.212 of the FAR; or, if acquired for Department of Defense units, (b) 48 CFR 227-7202 of the DoD FAR Supplement; or sections succeeding thereto. Contractor/manufacturer is SGI, 900 North McCarthy Blvd., Milpitas, California 95035.
6. Export Restrictions. You hereby assure You will not export or re-export any Licensed Software in violation of any applicable laws, regulations, executive orders and the like, including without limitation USA versions of the same.
7. Governing Law. This Agreement is governed and interpreted under the laws of the State of California, excluding choice of law rules. If any dispute or controversy of the parties arises in relation to this Agreement, whether in contract or tort, and/or the performance or termination thereof, it shall be subject to, and the parties expressly consent to, the exclusive jurisdiction of the California state courts in and for Santa Clara County, California (or, if there is federal jurisdiction, the U.S. District Court for the Northern District of California), and the prevailing party shall recover all of its costs, including reasonable attorneys' fees. The parties waive any right to trial by jury in any action to enforce or defend any matter arising in relation to this License.
8. Disclaimer of Warranty. THE LICENSED SOFTWARE IS "AS IS," WITHOUT EXPRESS, IMPLIED, OR STATUTORY WARRANTY OR CONDITION OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY WARRANTY OR CONDITION OF MERCHANTABILITY, SECURITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE OPERATION AND NON-INFRINGEMENT.
9. Limitation of Liability, and Indemnity. IN CONNECTION WITH OR ARISING IN RELATION TO THIS LICENSE AND/OR THE LICENSED SOFTWARE: (A) IN NO EVENT SHALL SGI OR ITS SUPPLIERS BE LIABLE FOR: (1) ANY CLAIMS OR DAMAGES ARISING FROM ANY HIGH RISK USE; AND (2)ANY COST OF COVER, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM LOSS OF DATA, USE, REVENUE, SAVINGS, OR GOODWILL), EVEN IF PRE-ADVISED OF THEIR PROSPECT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY; AND (B) LIABILITY OF SGI AND/OR ITS SUPPLIERS FOR ANY AND ALL CLAIMS COMBINED WILL NOT EXCEED THE AMOUNT OF ANY LICENSE FEE PAID FOR THE LICENSED SOFTWARE. THE FOREGOING APPLIES NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY CONTRACTUAL REMEDY. YOU WILL INDEMNIFY, DEFEND (WITH COUNSEL APPROVED IN WRITING IN ADVANCE BY SGI) AND HOLD SGI HARMLESS AGAINST ANY CLAIMS FOR COST, DAMAGE, EXPENSE (INCLUDING REASONABLE ATTORNEYS' FEES) AND LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY HIGH RISK USE. The law(s) of a jurisdiction may define the scope of warranty to be provided for products or the manner in which a supplier's liability may be limited, and such law(s) shall govern only to the extent a party protected by such law(s) cannot waive the protection thereof by contract.
10. Complete Agreement. Subject to the provisions of the Section hereof entitled "Other Software Licenses," this License supersedes all oral or written agreements, understandings, past courses of dealing, and/or other utterings on the subjects hereof. If a court of competent jurisdiction finds any whole or partial provision of this License to be unenforceable, the affected portion shall be excised and the remainder of the License shall be enforced or recast so as to effect the intent of the Parties.
11. Other Software Licenses. Certain software included with the Licensed Software ("Other Software") may be subject to other licenses and/or provisions ("Other Software Provisions"), as indicated in accompanying licenses in printed and/or electronic format and/or in comments fields within source code to the Other Software. This may particularly be the case regarding licenses that permit copying, modification, and redistribution of source code (e.g., "open source licenses"). This License is inapplicable to the extent it is contrary to such Other Software Provisions; provided, that to the extent permissible under such Other Software Provisions, Sections 6 through 9 and 12 hereof also apply to the Other Software.
12. Appendix. This License hereby incorporates by reference all elements of any Appendix provided herewith (the "Appendix").
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