SYBASE WATCOM C/C++ RUNTIME LIBRARIES SOURCE LICENSE AGREEMENT
IMPORTANT - PLEASE READ CAREFULLY


THE SYBASE PROGRAMS (DEFINED BELOW) ARE AVAILABLE FOR DOWNLOAD SUBJECT TO THE TERMS OF THIS LICENSE AGREEMENT ONLY. PLEASE REVIEW THIS LICENSE AGREEMENT CAREFULLY. YOU ARE NOT PERMITTED TO DOWNLOAD THE SYBASE PROGRAMS UNLESS YOU HAVE ACCEPTED THIS AGREEMENT BY CLICKING "ACCEPT" WHERE INDICATED.  BY CLICKING "ACCEPT," YOU ARE AGREEING TO HONOR ALL OF THE TERMS OF THIS LICENSE AGREEMENT AND WARRANTING THE EXPORT CONTROL CERTIFICATIONS SET FORTH AT THE END OF THE AGREEMENT.

1. DEFINITIONS.  

For the purpose of this Agreement, the following capitalized terms have the following meanings:

1.1 "Executable" means the Sybase Programs in any form other than in source code form.

1.2	"Modifications" means any error corrections, enhancements or modifications made to the Sybase Programs by You.

1.3	"Modified Programs" means the Sybase Programs inclusive of Modifications in source code form. 

1.4	"Notice" means a copyright notice which shall read as follows "The initial developer of the Watcom C/C++ Runtime Libraries is Sybase, Inc. Portions created by Sybase are Copyright (c) 1996-1999 Sybase, Inc. All rights reserved." 

1.5	"Sublicense Agreement(s)" means an end user license agreement between You and your end user that is signed by your end user or is in the form of a "shrinkwrap" or "click-through" license agreement accepted by an affirmative action of your end user.

1.6	"Sybase Programs" means the Watcom C/C++ Runtime Libraries software programs as delivered by Sybase hereunder in source code form. 

1.7	"Sybase" means Sybase, Inc. 

1.8	"You" means an individual or legal entity exercising rights under, and complying with, all the terms of this license Agreement.  

2.	LICENSE GRANTS AND RESTRICTIONS

2.1 License Grant.  Subject to the terms and conditions of this Agreement, You are granted a non-exclusive, non-transferable, royalty free license to: 
(a) use the Sybase Programs;
(b) modify, enhance and improve the Sybase Programs; 
(c) compile, reproduce, sublicense and distribute the Sybase Programs in conjunction with a Larger Work (defined in Section 2.3 below); and 
(d) compile, reproduce, sublicense and distribute the Modified Programs.

2.2 Modified Programs. As a condition to exercising the rights granted in Section 2.1 above, You agree that You may distribute Modified Programs in source code form provided: (i) You enter into Sublicense Agreements with your end users that contains substantially the same terms as set forth in this Agreement including, but not limited to, the provisions in Sections 6, 7.1 and 7.3; and (ii) in a readme.txt file distributed with the Modified Programs, You include the description of changes to Sybase Programs made by You and the date such changes were made. You agree that You may not offer or impose any terms on any Modified Programs that alter or restrict the recipients' rights hereunder. If You offer terms with respect to the Modified Programs (such as warranty, support, indemnity or liability obligation etc.) which differ from this Agreement, You must make it clear that any terms which differ from those in this Agreement are offered by You alone, not by Sybase and You hereby agree to indemnify Sybase for any liability incurred by Sybase as a result of any additional terms You have offered. Additionally, You agree to duplicate all copyright or other proprietary notices in the Sybase Programs and to include the Notice in all copies of the Modified Programs. 

2.3	Larger Work. As a condition to exercising the rights granted in Section 2.1above, You agree that You may distribute Sybase Programs or Modified Programs (either in source code form or Executable form) as part of or embedded within a larger work developed by You (together referred to as "Larger Work") provided You distribute the Sybase Programs pursuant to a Sublicense Agreement that contains substantially the same terms as set forth in this Agreement including, but not limited to, the provisions in Sections 6, 7.1 and 7.3. If you offer terms which differ from this Agreement, You must make it clear that any terms which differ from those in this Agreement are offered by You alone, not by Sybase, and You hereby agree to indemnify Sybase for any liability incurred by Sybase as a result of any additional terms You have offered. Additionally, You agree to include the Notice in the Larger Work. If the Modified Programs or Sybase Programs distributed with the Larger Work are in Executable form and are embedded within the Larger Work, You are not required to also distribute the source code for such Executable form of the program with the Larger Work. 
 
2.4	Executable Form. As a condition to exercising the rights granted in Section 2.1above, You agree that You may distribute the Modified Programs in Executable form provided: (i) You distribute the Sybase Programs pursuant to a Sublicense Agreement that contains substantially the same terms as set forth in this Agreement including, but not limited to, the provisions in Sections 6, 7.1 and 7.3; (ii) You distribute the Modified Programs in source code form along with the Executable form; and (iii) in a readme.txt file distributed with the Modified Programs, You include the description of changes to Sybase Programs made by You and the date such changes were made. If you offer terms which differ from this Agreement, You must make it clear that any terms which differ from those in this Agreement are offered by You alone, not by Sybase, and You hereby agree to indemnify Sybase for any liability incurred by Sybase as a result of any additional terms You have offered. Additionally, You agree to include the Notice in the Executable.

2.5	Ownership. Sybase owns all right, title and interest in the Sybase Programs, including all copyrights, patents and any and all other proprietary rights contained therein. All rights in the Sybase Programs not expressly granted to You by this Agreement are retained by Sybase. 

3.	NO SUPPORT

Sybase will have no obligation to provide support to You or your customers in connection with the Sybase Programs, Modified Programs or otherwise under this Agreement. Additionally, Sybase will have no obligation to issue any updates or new versions of the Sybase Programs.  

4. INDEMNIFICATION	

You agree to defend, indemnify and hold Sybase harmless from and against any claims, liabilities, damages, and suits (collectively "Claims"), including reasonable attorneys' and expert fees, arising out of or in connection with the use or distribution of Modified Programs, Executable or a Larger Work except where such a Claim is based primarily on an allegation that the unmodified Sybase Programs (in the form originally provided to you hereunder) infringe the U.S. proprietary rights of any party other than You.  If a Claim subject to this indemnity arises, Sybase agrees to: (i) provide You prompt written notice of the Claim; (ii) allow You to control the defense and/or settlement of the Claim; and (iii) provide You with reasonable assistance in the defense of the Claim.

5. TERMINATION.

5.1 Termination. This Agreement and the licenses granted under this Agreement will terminate automatically if You materially fail to comply with the terms of the Agreement and fail to cure such a default within thirty (30) days of receiving notice of default from Sybase. In addition, Sybase may terminate this Agreement immediately if it becomes aware of any action or claim initiated by You alleging that the use or distribution of the Sybase Programs infringes any intellectual property or other proprietary right You own or control. You may terminate this Agreement at any time for your convenience, provided that you comply with Section 5.2 below and provide written notice to Sybase of the termination. 

5.2 Effect of Termination. Upon the termination or expiration of this Agreement, You agree to discontinue your use of the Sybase Programs and return or destroy all copies of them, and to cease all use of the Modifications.  All licenses properly granted by You prior to termination or expiration of this Agreement will survive. 

5.3 Survival. Sections 1, 2.5, 3, 4, 5.2, 5.3, 6 and 7 will survive any termination or expiration of the Agreement. Each party waives and releases the other from any claim to compensation or indemnity for termination of this Agreement consistent with its terms.  

6. DISCLAIMER OF WARRANTY/LIMITATION OF LIABILITY

6.1 DISCLAIMER OF WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SYBASE PROGRAMS ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SYBASE PROGRAMS ARE FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING.  YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SYBASE PROGRAMS AND YOUR IMPLEMENTATION THEREOF. SHOULD THE SYBASE PROGRAMS OR ANY PART THEREOF PROVE DEFECTIVE IN ANY RESPECT, YOU ASSUME THE COST AND LIABILITY FOR ANY RESULTING DAMAGES, REPAIRS OR CORRECTION.  THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.  NO USE OF THE SYBASE PROGRAMS IS AUTHORIZED HEREUNDER EXCEPT SUBJECT TO THIS DISCLAIMER. 

6.2 	LIMITATION OF LIABILITY. NEITHER SYBASE, ITS SUBSIDIARIES NOR ANY OF ITS LICENSORS SHALL BE LIABLE FOR ANY LOSS OR DAMAGE HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY INACCURACY OF DATA, LOSS OF PROFITS OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.


7. GENERAL

7.1	Export Controls. You agree that You will not knowingly transfer, directly or indirectly, the Sybase Programs or any other technical data or knowhow received from Sybase or the direct product of such data or knowhow, to any destination or entity subject to export restrictions under U.S. law, unless prior written authorization is obtained from the appropriate U.S. agency. You agree to comply strictly with all U.S. export control laws and assume sole responsibility for obtaining licenses to export or re-export the Sybase Programs as may be required. You are also responsible for complying with any applicable local laws and regulations, including without limitation, the export and import laws and regulations of other countries.

7.2	Notices.  All notices relating to this Agreement must be in writing. All notices to Sybase, Inc. must be delivered by mail, postage prepaid, or by overnight courier as follows:

Sybase, Inc.
Attn: General Counsel
6475 Christie Avenue
			Emeryville, California 94608, U.S.A.

7.3	U.S. Government.  If this license is acquired under a U.S. Government contract, use, duplication or disclosure by the U.S. Government is subject to restrictions set forth in this Agreement or in a written license agreement which incorporates applicable FAR provisions, such as FAR subparagraphs 52.227-19. Sybase reserves all unpublished rights under the United States copyright laws. 

7.4	Governing Law.  This Agreement shall be governed by and construed under the laws of the State of California as applied to contracts entered into and to be performed in California between California residents (other than its conflict of law provisions). This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

7.5	Severability.  If any provision of this Agreement is held to be unenforceable, the parties shall substitute for the affected provision an enforceable provision which approximates the intent and economic effect of the affected provision.  The failure or delay by either party to enforce any term of this Agreement shall not be deemed a waiver of such term. 

7.6	Entire Agreement/Translation.  This Agreement constitutes the entire agreement of the parties  regarding the subject matter hereof.  This Agreement may be modified only in a writing signed by both parties. The parties have requested that this Agreement and all documents contemplated hereby be drawn up in English.  Les parties aux prsentes ont exig que cette entente et tous autres documents envisags par les prsentes soient rdigs en anglais.	

BY SELECTING "ACCEPT" WHERE INDICATED, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, THAT YOU ARE DULY AUTHORIZED TO ACCEPT THE AGREEMENT AND THAT YOU REPRESENT AND WARRANT YOUR COMPLIANCE WITH EACH OF THE FOLLOWING STATEMENTS:
		
A.	You are not a citizen, national or resident of, or under the control of the government of Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria, Serbia or any other country to which the United States has prohibited export.

B.	You will not export or re-export the Sybase Programs or any other technical data or knowhow received from Sybase or the direct product of such data or knowhow, directly or indirectly, to the above mentioned countries nor to citizens, nationals or residents of those countries.

C.	You are not listed on the U.S Department of Commerce Denied Persons List or affiliated lists or on the U.S. Department of Treasury's Specially Designated Nationals List and you agree not export or re-export the Programs, directly or indirectly, to persons on this list. 

D.	You agree not to use, or permit the use of, the Sybase Programs for any purposes prohibited by U.S. law, including, without limitation, for the development, design or production of nuclear, chemical or biological weapons

			

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