BEA WebLogic JRockit Binary License Agreement

READ THE TERMS OF THIS AGREEMENT (THE "AGREEMENT") CAREFULLY BEFORE DOWNLOADING OR INSTALLING JROCKIT. BY DOWNLOADING OR INSTALLING JROCKIT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. INDICATE YOUR ACCEPTANCE OF THESE TERMS BY SELECTING THE "YES" BUTTON AT THE END OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, SELECT THE "NO" BUTTON AT THE END OF THIS AGREEMENT AND THE DOWNLOAD AND INSTALLATION PROCESS WILL NOT CONTINUE.

1. License to Use. Subject to the terms and conditions of this Agreement, including but not limited to the restrictions set forth in Section 4 (Restrictions), below, BEA Systems, Inc. ("BEA") grants you a non-exclusive and non-transferable license for the internal use only of the accompanying software and documentation provided by BEA for JRockit ("JRockit"), including, but not limited to the right to reproduce and use JRockit internally for the purpose of designing, developing and testing Java applets and applications, and running Java applets and applications on JRockit.
    
2. License to Distribute. Subject to the terms and conditions of this Agreement, and subject to the express condition precedent that you first comply with the requirements of Section 3 (Reporting Requirements) prior to exercising any rights granted under this Section 2, BEA grants you a non-exclusive, non-transferable, limited license to reproduce and distribute JRockit in binary form only, provided that: (i) you distribute JRockit complete and unmodified, (ii) you do not remove or alter any proprietary legends or notices contained in or on JRockit, (iii) you only distribute JRockit pursuant to a license agreement that protects BEA's and its licensors' interests consistent with the terms contained in the Agreement, and (iv) you agree to defend and indemnify BEA and its licensors from and against any damages, costs, liabilities, settlement amounts and/or expenses (including attorneys' fees) incurred in connection with any claim, lawsuit or action by any third party that arises or results from the use or distribution of JRockit distributed by you.
    
3. Reporting Requirements; Verification. Your right to distribute JRockit as provided in Section 2, above, is expressly conditioned on your prior compliance with the reporting obligations set forth in this Section 3. Unless you first comply with these reporting requirements you may not distribute JRockit in any manner. Prior to distributing JRockit in accordance with Section 2, you must provide BEA (via e-mail sent to jrockit-partner@bea.com) with the following information: (i) your name, (ii) place of incorporation or organization if a legal entity such as a corporation, partnership or limited liability company, (iii) the address of your residence or principal place of business if you are a legal entity, (iv) the name of a designated contact person who is authorized to receive information related to JRockit on your behalf, (v) that designated contact's telephone number, fax number and e-mail address, and (vi) your URL if you have one. BEA may, at any time during the term of this Agreement and with seven (7) days prior written notice, request and gain access to your premises for the limited purpose of conducting an audit to determine and verify that you are in compliance with these terms and conditions. You shall promptly grant such access and cooperate with BEA in the audit. The audit will be restricted in scope, manner and duration to that reasonably necessary to achieve its purpose and not disrupt your operations. You shall be liable for promptly remedying any underpayments revealed during the audit, and if the audit reveals an underpayment of more than five per cent (5%) of the fees actually due, you will also be liable for the costs of the audit.
    
4. Restrictions. JRockit is confidential to BEA and protected by Copyright and other bodies of law protecting intellectual property rights. Title to JRockit and all associated intellectual property rights is retained by BEA and/or its licensors. JRockit Mission Control ("JMC"), a performance and application management suite that is included with JRockit. JMC includes a set of user interfaces along with the supporting APIs and is identified in Exhibit A attached to this Agreement. You may use JMC and the corresponding data gathered from the JRockit Java Virtual Machine through JMC solely for your internal evaluation and development purposes. If you wish to use JMC other than for internal evaluation and development purposes, including, but not limited to pre-production staging and full production, you must obtain a separate fee-bearing license to do so from BEA or one of its licensees authorized to grant such rights. Except as specifically authorized in Sections 1 and 2, above, you may not make copies of JRockit. Unless enforcement is prohibited by applicable law, you may not modify, decompile, or reverse engineer JRockit. No right, title or interest in or to any trademark, service mark, logo or trade name of BEA or its licensors is granted under this Agreement. JRockit is not designed, licensed or intended for use in the design, construction, operation or maintenance of any nuclear facility, nor may you use it for such purposes. If the version of JRockit you are licensing under this Agreement is a "pre-final," "beta," "technology preview," or similar pre-production release (collectively, "Pre-final Versions"), you must discontinue your use of the Pre-final Version and replace each copy of such Pre-Final Version with the successor general availability release as soon as it becomes available from BEA. "Pre-final Versions" do not include versions of JRockit denominated by BEA as "Limited Availability" or "Developer Releases," and use of such releases does not require that you upgrade to a subsequent general availability release.
    
5. Trademarks and Logos. You acknowledge and agree as between you and BEA that BEA owns JRockit trademarks and logos and other related brand designations ("BEA Marks"), and you have no right to use, or remove or efface from JRockit, any of the BEA Marks. All goodwill associated with the BEA Marks inures to BEA's benefit.
    
6. DISCLAIMER OF WARRANTY. THE SOFTWARE IS PROVIDED "AS IS," WITHOUT WARRANTY. ALL WARRANTIES, EXPRESS OR IMPLIED, CONDITIONS, AND REPRESENTATIONS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE DISCLAIMED.
    
7. Limitation of Liability. In no event will BEA or its Licensors be liable for any lost revenue, profits or data, or for special, incidental, consequential or other indirect damages, or for punitive damages, however caused, regardless of the theory of liability, arising out of or related to JRockit or this Agreement, even if BEA has been advised of the possibility of such loss. In no event will BEA's liability to you, whether in contract, tort (including negligence), or otherwise, exceed the amount paid by you for JRockit hereunder.
    
8. Termination; No Obligation to Support. This Agreement is effective until terminated. You may terminate this Agreement at any time by destroying all copies of JRockit. Either party may terminate this Agreement immediately should JRockit become, or in either party's opinion be likely to become, the subject of a claim of infringement of any intellectual property right. This Agreement will terminate immediately without notice from BEA if you fail to comply with any provision of this Agreement. Upon Termination, you must destroy all copies of JRockit. BEA may at any time discontinue offering JRockit or any particular version thereof, and unless you accept the terms of and pay the applicable support fees for a separate BEA JRockit Support Addendum, BEA shall have no obligation to provide support, updates, patches, bug fixes or other enhancements for JRockit or any particular version thereof.
    
9. Export Regulations. You may not download or otherwise export or re-export JRockit or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations. In particular, but without limitation, neither JRockit nor the underlying information or technology may be downloaded or otherwise exported or re-exported, directly or indirectly, (a) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Syria or Sudan; (b) to anyone on the US Treasury Department's list of Specially Designated Nationals or Other Blocked Persons, the US Commerce Department's Denied Parties List, the US Commerce Department's Entity List, or the US Commerce Department's Unverified List; or (c) to or for any proliferation-related (nuclear weapons, missile technology, or chemical/biological weapons) end use. By licensing JRockit, you agree to the foregoing, represent and warrant that you are not (x) located in, under the control of, or acting on behalf of, or a national or resident of, any such country; (y) on any such list; or (z) involved in any such end use.
    
10. U.S. Government Restricted Rights. If JRockit is being acquired by or on behalf of the U.S. Government or by a U.S. Government contractor, then the Government's rights in JRockit and accompanying documentation shall be only as set forth in this Agreement in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and with 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions).
     
11. Governing Law. Any action related to this Agreement will be governed by the laws of the United States and the state of California. Any legal action in any way arising out of or related to JRockit or this Agreement may be brought exclusively in the state of federal courts located in San Jose, California. By accepting this Agreement, you are consenting to the exclusive jurisdiction of these courts.
     
12. Severability. If any provision of this Agreement is held to be unlawful or unenforceable, or otherwise invalid, this Agreement will remain in effect with the invalid provisions omitted, unless omission would frustrate the intent of the parties, in which case this Agreement will immediately terminate.
     
13. Complete Agreement. This Agreement is the entire agreement between you and BEA relating to the subject matter hereof. 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. No modification of this Agreement will be binding, unless in writing and signed by an authorized representative of each party.

EXHIBIT A

JRockit Mission Control
JRockit Mission Control identified in Section 4 (Restrictions) of the Agreement include, but is not limited to the following:

• JRockit Runtime Analyzer
• JRockit Management Console
• JRockit Memory Leak Detector