License Agreement for Certicom's movian(tm) product client software
YOU SHOULD CAREFULLY READ THE FOLLOWING LICENSE AGREEMENT BEFORE DOWNLOADING OR INSTALLING THIS SOFTWARE.  rv.06.28.02
This software, any printed, training materials, any on-line or electronic documentation, and any and all copies and derivative works of such software and materials, including its newer versions (the "Software") are the copyrighted work of Certicom Corp. ("Certicom").  Any and all use of the Software is governed by the terms of the License in which You, as licensee, select, and which is provided below ("License").  All rights not expressly granted in this License are reserved by Certicom. The Software is solely for use by end users according to the terms of the License. Any use, reproduction or redistribution of the Software not in accordance with the terms and conditions of the License is expressly prohibited.   Any use or, or access to, the Software indicates your acceptance of these terms and conditions as applicable to your particular intended use.


1.  TYPES OF LICENSES
In order to install and use the Software, You must obtain one of the following two types of licenses for either the movianVPN product or movianCrypt product: (A) Evaluation License, or (B) Seat License by clicking the "I AGREE" button and accepting the terms contained in this License.

A. An evaluation license to the Software is available and is free for a period of up to thirty consecutive days in an one year period ("Evaluation License").

Any continued use of the Software beyond thirty consecutive days in an one year period requires payment of license fee(s).

B.  The Software is available for commercial licensing on a per Seat basis for annual or perpetual terms, subject to the terms of this License.  Each "Seat" license may be identified or specified (by password or other user identification) and is defined as one copy of the Software used on one particular computing device at any given time by one user for non-evaluation purposes.   

2. DEFINITION

"In use" - the Software shall be considered to have been "in use" if, at any time, it is loaded into the temporary memory (i.e., RAM) or installed into the permanent memory (e.g., hard disk, CD ROM, or other storage device) of a computer for the purpose of being accessible in client-mode by an end user. 

3.  LICENSE GRANT 

You may use the Software only under one of the following two types of licenses at any time:

. 
A.  Evaluation License. 

Provided that You have selected an Evaluation License, and subject to the terms and conditions contained herein, Certicom grants to You, an end user, for a period not to exceed thirty consecutive days from the date on which You first install the Software ("Evaluation Period") a non-transferable, non-exclusive, non-sublicensable license, free of charge, to install and use the Software for the sole purpose of internal evaluation of the Software.  

B.  Seat License.

Provided that You have selected and paid the required license fee(s) for a Seat License, and subject to the terms and conditions contained herein, Certicom hereby grants to You, an end user, a limited, non-transferable, non-exclusive, non-sublicensable license to install and use the Software only on the number of Seats paid for by You to  (a) install, use and allow access to the Software on the particular platform up to the paid number of Seats; (b) make as many copies of the Software as the number of Seats for which you have paid (subject to the restrictions in the documentation); (c) use the Software internally as client software  (including, by way of an example, and not for purposes of limitation, for commercial purposes) not otherwise prohibited by this Agreement; (d) use one (1) copy of the Software for back-up purposes; and (e) transfer a copy of the Software from a user's desktop computer to an additional notebook or portable computer of such user, provided that each licensed copy is used by such user on only one computer at any given time and the total number of Seats does not exceed the number for which You have paid.

If You are provided any newer versions of the Software, You shall promptly replace, cease using and destroy all superseded copies if notified that the replaced software is undergoing a mandatory replacement. By way of example, a mandatory replacement may include major releases that include major bug fixes or address possible security or infringement concerns.

4. USE RESTRICTIONS

You must not, in whole or in part do the following: 

A. Except as permitted by law, copy (except for emergency or back-up purposes and license for multiple users), photocopy, reproduce, translate, modify, translate, create derivative works based on the Software for any purposes (e.g. incorporating the Software in a product or service without a prior written consent of Certicom, which it may withhold under its sole discretion);

B. Except as permitted by law, sell, rent, lease, sublicense, convey, grant a security interest in or transfer, distribute or grant or license any rights in the Software to others in any form without the prior written consent of Certicom, which it may withhold under its sole discretion;

C. Remove any product identification, copyright, proprietary notices or labels from the Software without the prior written consent of Certicom, which it may withhold under its sole discretion;

D. Use any Certicom trademarks in any manner other than those present within Your copy of the Software without prior written permission of Certicom, which it may withhold under its sole discretion; and

E. Reproduce any copies as permitted hereunder that do not contain all of the original Software's copyright, trademark and other proprietary notices and marks.  

5. PURCHASE/ FEES

Please visit www.moviansecurity.com or call (510) 780-5000 for more information on how to license the Software.  All fees, including license fee, support, training, or other fees paid to Certicom are not refundable for any reason.

You must provide Certicom with a Purchase Order or a form acceptable to Certicom. Any Purchase Order must be consistent with the material terms of this License and must identify the following information: (i) Software including platform description; (ii) level of support and maintenance elected; (iii) the license term of each Seat license; and (iii) the  fees for the Software and support. By issuing a Purchase Order, You consent to the Seat License terms contained in this License or a separate agreement, executed between You and Certicom.  

 

6. MAINTENANCE AND SUPPORT 

Certicom does not provide technical support for Evaluation License.  However, from time to time, Certicom may make certain information available to all users.  For example, Certicom offers various, self-help tools and content on its support websites available 24 hours, 7 days a week at http:www.certicom.com.  These resources may include frequently asked question lists, troubleshooter or how-to articles, product downloads, and website response center, where support questions can be emailed.

Support and maintenance are available for Seat Licenses at the then current standard prices.  Please visit    www.certicom.com or call (510) 780-5000 for more information. Provision of maintenance service and support is subject to the terms and conditions of this License along with any additional terms provided to You. Certicom reserves the right to change its prices and support terms without notice. 


7. OWNERSHIP/ CONFIDENTIALITY

This Software, any printed, training materials, any on-line or electronic documentation, and any and all copies and derivative works of such software and materials, including its newer versions, and any information provided to You in connection with any services, are the copyrighted works of Certicom Corp and are considered proprietary and confidential information. Such items are protected by copyright and patent laws, other intellectual property laws, and international treaties. In addition, You agree that the techniques, algorithms, ideas, concepts, code, and processes contained in the Software constitute Certicom's trade secrets and are subject to protection as confidential materials.  As such, to the extent this restriction is permitted by law, You agree not to reverse engineer, disassemble or decompile, or otherwise attempt to derive the source code for, or perform cryptographic analysis upon the Software. You agree, unless otherwise required by law, not to make such information available in any form to any third party (except users) or to use such information for any purpose unless permitted under this Agreement and to take all reasonable steps to ensure that such information is not disclosed or distributed by Your employees or agents in breach of this Agreement. You further agree to use the documentation solely in accordance with its accompanying terms, and only for the purpose of installing, using, and maintaining the Software.  In addition, You agree that Certicom retains the right to use, without right of accounting, any generalized knowledge, experience and know how (including ideas, concepts, techniques, methodologies, practices, processes) that it may acquire in the course of performing any services for You under this Agreement.

8.  EXPORT CONTROLS

A. General Export Provisions. You must comply with all applicable export, import, or other relevant laws of any applicable jurisdiction.  Determination of the applicable law is Your responsibility. The Software is cryptographic in nature and therefore the Software is highly regulated.  You are strictly prohibited from exporting, re-exporting or importing the Software regardless of method (including, for example and not by limitation by use of physical delivery, or e-mail, etc.). You have the sole responsibility to obtain any necessary export or import approval for cryptographic Software.  For specific laws pertaining to Canadian export regulations, please contact the appropriate Canadian governmental agency.    
B. Specific Export Prohibitions. Without limiting the general provisions stated in subsection A, above, the Software may not be re-exported, downloaded or otherwise exported as follows:
(i) into any country under an applicable U.S. Government embargo; or.
(ii)  to anyone on the U.S. Treasury Department's list of Specially Designated Nationals;
(iii) to anyone on the U.S. Commerce Department's Table of Denial Orders. 
C.  Use by U.S. Government. For purposes of use of the Software by the U.S. Government, it is provided as Commercial Computer Software and Commercial Computer Software Documentation, and use, duplication and disclosure by the U.S. Government is subject to the requirements set forth in FAR 52-227-19 "Commercial Computer Software - Restricted Rights", FAR 12.212(a) (October 2000), FAR 52.227-19 (Jun. 1987), or FAR 52.227-14 (JUN 1987), DFARS 227.7202 (Oct. 1998), "Commercial Computer Software and Commercial Computer Software Documentation," and DFARS 252.227-7013(c) (Nov. 1995), and any future amendments or successors, as applicable. For purposes of this Section, except as otherwise noted, manufacturer of the Software is Certicom Corp., 5520 Explorer Drive, 4th Floor, Mississauga, ON L4W 5L1, (v) 905.507.4220, (f) 905.507.4230. 

9. AUDIT 

To the extent the provisions in this section are permitted by law, Certicom reserves the right to audit You to ensure compliance with the terms of this Agreement. You agree to use reasonable efforts to maintain complete records and documents relevant to such compliance. Certicom will have the right, at its reasonable discretion, and at its sole cost and expense, to have a representative conduct, during normal business hours and not more frequently than yearly, an audit of such appropriate documentation. Certicom must provide You with at least twenty (20) days advance written notice.  The auditor will be bound to keep confidential the details of Your business affairs and to limit disclosure of the results of any audit to compliance with the terms of this Agreement. In the event that such an audit discovers serious non-compliance with the material terms of this Agreement, then, without limiting Certicom's other remedies at law or equity, You agree to pay for the reasonable cost of the audit.  

10. TERM AND TERMINATION

Unless terminated automatically by Your breach of this License or upon Certicom's notice of termination, an Evaluation License is effective for a period of thirty consecutive days from the date of user's installation of the Software. 

The term of each Seat license will be determined based on the particular type of Seat license You have paid for.  Unless terminated upon Your breach of this License, (i) annual Seat licenses terminate one (1) year from Certicom's initial delivery of the Software; and (ii) perpetual Seat licenses are effective upon delivery.  

Copies of the Software may contain a disabling device within the Software to prevent use of the Software beyond the period for which they have been licensed.  

Upon termination of this License whatsoever; (i) You must immediately cease using the Software and any Certicom materials and information, (ii) all of the rights granted to you hereunder shall immediately cease, (iii) You must promptly destroy and erase all copies  (including back-up copies) of the Software and documentation, and upon Certicom's request; and, (iv) upon Certicom's request, You will certify in writing to Certicom that all of the foregoing have been done.  

11.  NO WARRANTY
CERTICOM PROVIDES THE SOFTWARE  "AS IS."  BY DOWNLOADING OR USING THE SOFTWARE, YOU ASSUME ALL RESPONSIBILITY AND RISK OF USE OF THE SOFTWARE.  CERTICOM PROVIDES THE SOFTWARE ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.  WITHOUT LIMITING THE SCOPE OF THE FOREGOING, CERTICOM DOES NOT WARRANT THAT THE SOFTWARE WILL FUNCTION WITHOUT DEFECTS OR THAT THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL MECHANISMS OR THAT ALL PROGRAMMING ERRORS IN THE SOFTWARE CAN BE FOUND IN ORDER TO BE CORRECTED. CERTICOM DISCLAIMS ANY LEGAL LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, ERRORS, OMISSIONS, COMPLETENESS, OR USEFULNESS OF ANY THE SOFTWARE, PROCEDURE, METHOD, APPARATUS, PRODUCT, TECHNICAL SUPPORT OR PROCESS PROVIDED TO YOU IN ASSOCIATION WITH THIS SOFTWARE. 

CERTICOM FURTHER DISCLAIMS ALL WARRANTIES WITH REGARD TO YEAR 2000 COMPLIANCE OF THE SOFTWARE. SPECIFICALLY, CERTICOM MAKES NO WARRANTIES THAT THE PERFORMANCE OR FUNCTIONALITY OF THE SOFTWARE WILL NOT BE AFFECTED BY DATES PRIOR TO, DURING OR AFTER THE YEAR 2000, OR THAT THE SOFTWARE WILL BE CAPABLE OF CORRECTLY PROCESSING, PROVIDING, AND/OR RECEIVING DATE INFORMATION WITHIN AND BETWEEN CENTURIES, INCLUDING THE PROPER EXCHANGE OF DATE INFORMATION BETWEEN PRODUCTS OR APPLICATIONS. ANY WARRANTY AGAINST INFRINGEMENT THAT MAY BE PROVIDED IN SECTION 2-312(3) OF THE UNIFORM COMMERCIAL CODE AND/OR IN ANY OTHER COMPARABLE STATE STATUTE IS EXPRESSLY DISCLAIMED. 

NEITHER CERTICOM, ITS LICENSORS, ITS EMPLOYEES, DIRECTORS, ASSOCIATES, NOR ITS SUPPLIERS ASSUMES ANY RESPONSIBILITY FOR LOSS OR DAMAGES RESULTING FROM THE USE OF THE SOFTWARE AND INFORMATION CONTAINED IN ANY DOCUMENTATION PROVIDED TO YOU. 

YOU FURTHER ACKNOWLEDGE THAT THIS SOFTWARE IS NOT DESIGNED OR LICENSED FOR USE IN ON-LINE EQUIPMENT IN HAZARDOUS ENVIRONMENTS SUCH AS OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR CONTROL, OR LIFE-CRITICAL APPLICATIONS. CERTICOM EXPRESSLY DISCLAIMS ANY LIABILITY RESULTING FROM USE OF THE SOFTWARE IN ANY SUCH ON-LINE EQUIPMENT IN HAZARDOUS ENVIRONMENTS AND ACCEPTS NO LIABILITY IN RESPECT OF ANY ACTIONS OR CLAIMS BASED ON THE USE OF THE SOFTWARE IN ANY SUCH ON-LINE EQUIPMENT IN HAZARDOUS ENVIRONMENTS BY YOU. FOR PURPOSES OF THIS PARAGRAPH, THE TERM "LIFE-CRITICAL APPLICATION" MEANS AN APPLICATION IN WHICH THE FUNCTIONING OR MALFUNCTIONING OF THE SOFTWARE MAY RESULT DIRECTLY OR INDIRECTLY IN PHYSICAL INJURY OR LOSS OF HUMAN LIFE.

SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.  THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY BY JURISDICTION.

12.  LIMITATION OF LIABILITY

A. YOU AGREE THAT ANY LIABILITY ON THE PART OF CERTICOM, ITS EMPLOYEES, DIRECTORS, ASSOCIATES, OR ITS SUPPLIERS AND DISTRIBUTORS FOR BREACH OF THE WARRANTIES CONTAINED HEREIN OR ANY OF THE OTHER PROVISIONS OF THIS AGREEMENT OR ANY OTHER BREACH GIVING RISE TO LIABILITY OR IN ANY OTHER WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY CAUSE OF ACTION WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION (INCLUDING BREACH OF CONTRACT, STRICT LIABILITY, TORT INCLUDING NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY), SHALL BE LIMITED TO YOUR DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY YOU TO CERTICOM EXCLUDING ANY FEES PAID FOR SUPPORT, MAINTENANCE, AND TRAINING. 

B. YOU AGREE THAT IN NO EVENT WILL CERTICOM, ITS LICENSORS, ITS EMPLOYEES, DIRECTORS, ASSOCIATES, OR ITS SUPPLIERS AND DISTRIBUTORS BE LIABLE FOR DAMAGES IN RESPECT OF INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES EVEN IF CERTICOM, ITS LICENSORS, ITS EMPLOYEES, DIRECTORS, ASSOCIATES, OR ITS SUPPLIERS AND DISTRIBUTORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION, LOST BUSINESS REVENUE, LOST PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS, ECONOMIC LOSS, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITY OR ANY CLAIM AGAINST YOU BY ANY OTHER PARTY. 

13.  EQUITABLE REMEDIES
You hereby agree that Certicom would be irreparably damaged if the terms of this License were not specifically enforced, and therefore You agree that Certicom shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to any breaches of this License, in addition to such other remedies as Certicom may otherwise have available to it under applicable laws. 

14.  ASSIGNMENT
You may not transfer this Agreement or any rights granted hereunder without the advance written consent of Certicom; provided, however, that such consent shall not be required to the extent you assign this Agreement solely in connection with a merger, acquisition, or sale of all or substantially all of your assets, in which case such assignment shall become effective upon receipt of Certicom's written consent.  Notwithstanding the foregoing, any assignment or transfer of this Agreement or your rights where the surviving or acquiring entity is a competitor of Certicom, as solely determined by Certicom, shall in all cases require the prior written consent of Certicom.

15.  MISCELLANEOUS
This License shall be deemed to have been made and executed in the State of California, U.S.A. and any dispute arising hereunder shall be resolved in accordance with the law of the State of California and solely in the county of San Francisco, U.S.A.. You agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. THE PARTIES ALSO AGREE THAT GENERAL CONTRACT LAW SHALL GOVERN THIS AGREEMENT, AND EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AS ADOPTED IN ANY FORM IN ANY STATE SHALL NOT APPLY TO THIS AGREEMENT. This License may be amended, altered or modified only by an instrument in writing, specifying such amendment, alteration or modification, executed by both parties. In the event that any provision of this License shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extent permissible and the remaining portions of this License shall remain in full force and effect. This License constitutes and contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior oral or written agreements. This License is the complete and exclusive statement of the agreement between Certicom and You and this License supersedes any prior or contemporaneous agreement, either oral or written, and any other communications between You and Certicom Corp. 

BY USING ANY PORTION OF THE SOFTWARE, OR BY CLICKING ON THE "I AGREE" BUTTON BELOW, YOU ARE STATING THAT YOU FULLY UNDERSTAND AND AGREE TO ACCEPT ALL THE TERMS AND CONDITIONS OF THIS LICENSE WITH CERTICOM CORP. IF YOU ARE ACCEPTING THIS LICENSE ON BEHALF OF AN ORGANIZATION, YOU REPRESENT THAT YOU HAVE FULL AUTHORIZATION TO DO SO. YOU MUST BE OF LEGAL MAJORITY AGE AND HAVE THE CAPACITY TO UNDERSTAND THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, PLEASE DELETE THE SOFTWARE OR EXIT THIS PAGE. 







