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JMark 2.0

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LICENSE AGREEMENT FOR JMARK(TM) VERSION 2.0

READ THIS AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE EMBODIED IN THE JMARK(TM) VERSION 2.0 CD-ROM OR, IF PRELOADED ON YOUR HARD DISK, DOWNLOADED OR IF PROVIDED AS PART OF A COLLECTION, THE PRELOADED, DOWNLOADED OR COLLECTED FILE(S) (the "Media"). Embodied in the Media is the JMark computer program and related documentation (the "Software"). Ziff-Davis Inc., having a place of business at One Park Avenue, New York, New York 10016 ("Ziff-Davis"), is the licensor under this Agreement and you are the licensee. By using the Software, in whole or in part, you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, promptly return the Software to Ziff-Davis Benchmark Operation at 1001 Aviation Parkway, Suite 400, Morrisville, North Carolina 27560 (or, if downloaded or preloaded on your hard disk, delete the Software, or if provided as part of a collection, cease use of the Software). Title to the Software and all copyrights, trade secrets and other proprietary rights therein are owned by Ziff-Davis. All rights therein, except those expressly granted to you in this Agreement, are reserved by Ziff-Davis.

 

1. Limited License

This Agreement grants you only limited rights to use the Software. Ziff-Davis grants you a non-exclusive, non-transferable license to use the Software for internal purposes only on a single dedicated computer or on a file server networked with multiple PC computers for the sole purpose of conducting benchmark tests to measure the performance of a Java environment, also known as a Java Virtual Machine. You have the right to make a single copy of the Software for archival purposes and the right to transfer a copy of the Software across an internal local area network only to the PC computers attached to such network; provided, however, that all such copies are considered Software hereunder, that all uses of such copies are governed by the terms and conditions of this Agreement and that you shall be responsible for all uses of such copies in violation of the terms and conditions of this Agreement.

Ziff-Davis hereby grants you the right to publish, except in any country where a third party claims during the term of this license that such publication infringes that party's proprietary rights, benchmark test results obtained by you from your use of the Software, provided that with the publication of each such result you:

  1. Identify Ziff-Davis, the name and version number of the benchmark Software used (i.e., Ziff-Davis' JMark(TM) 2.0);
  2. State that the test was performed without independent verification by Ziff-Davis and that Ziff-Davis makes no representations or warranties as to the result of the test;
  3. Follow proper trademark usage and acknowledge Ziff-Davis' trademark rights (e.g., "[ ] achieved a JMark(TM) 2.0 Processor Score of X. JMark is a registered trademark or trademark of Ziff-Davis Inc. in the U.S. and other countries.");
  4. Identify the specific JMark 2.0 score(s) being reported;
  5. Identify the exact name, processor speed and type, number of processors, amount of RAM, amount of secondary RAM cache, if any, and the exact graphics adapter name, amount and type of RAM on it, graphics driver name and date, graphics resolution and color depth, and refresh rate of the system used for the test (e.g., WXY Corp. Model 466 with 66-MHz Intel® dual 486DX2-66 CPU, 8MB of RAM, 64KB RAM cache, and an XYZ Corp. XYZ Graphics adapter with 2MB VRAM with XYZ.DRV version 1.1 driver, 800 by 600 pixels with 256 colors, and a refresh rate of 72 Hz);
  6. Identify the operating system version and service pack version, if any (e.g., Microsoft® Windows® 95, Windows NT® 4.0 with Service Pack 3, or Mac OS® 8.0.);
  7. Identify the browser, if any, and the exact name of the Java in the system (e.g., Netscape® Communicator(TM) 4.0 with JDK 1.1 patch or Microsoft® Internet Explorer 4.0);
  8. State that all products used in the test were shipping versions available to the general public.

Notwithstanding the foregoing, if, and only if, you wish to publish the benchmark test results obtained by using the Software in advertisements, you may do so, provided that you:

  1. Identify Ziff-Davis, the name and version number of the benchmark Software used (i.e., Ziff-Davis' JMark(TM) 2.0) in the advertisement;
  2. State that the test was performed without independent verification by Ziff-Davis and that Ziff-Davis makes no representations or warranties as to the result of the test;
  3. Follow proper trademark usage and acknowledge Ziff-Davis' trademark rights (e.g., "[ ] achieved a JMark(TM) 2.0 Processor Score of X. JMark is a registered trademark or trademark of Ziff-Davis Inc. in the U.S. and other countries.");
  4. Identify the specific JMark 2.0 score(s) being reported; and
  5. Include a statement in the advertisement that a description of the environment under which the test was performed is available upon request and you shall provide a fax number, telephone number, e-mail address or URL on the World Wide Web where such information may be obtained. Upon such request, you shall provide the information required under paragraphs E through H above.

This Agreement and your rights hereunder shall automatically terminate if you fail to comply with any provision of this Agreement. Upon such termination, you shall cease all use of the Software and cease the transfer of any copies of the Software. Further you shall delete the Software and destroy all tangible copies of the Software and other materials related to the Software in your possession or under your control, or, if downloaded or preloaded on your hard disk or if provided as part of a collection, you shall cease use of and destroy any and all copies of the Software in your possession or under your control.

2. Additional Restrictions

  1. You shall not (and shall not permit other persons or entities to) rent, lease, sell, sublicense, assign, or otherwise transfer the Software or this Agreement. Any attempt to do so shall be void and of no effect.
  2. You shall not (and shall not permit other persons or entities to) reverse engineer, decompile, disassemble, merge, modify, include in other software or translate the Software, or use the Software for any commercial purposes.
  3. You shall not (and shall not permit other persons or entities to) remove or obscure Ziff-Davis' copyright, trademark or other proprietary notices or legends from any of the materials contained in this package or downloaded.
  4. You acknowledge that the Software contains Ziff-Davis' trade secret information and you shall not disclose or disseminate such information other than as provided herein.

3. Disclaimer of Warranty; Limitation of Liability

THE SOFTWARE AND THE MEDIA ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE AND THE MEDIA IS ASSUMED BY YOU. ZIFF-DAVIS AND ITS AUTHORIZED DISTRIBUTORS ASSUME NO RESPONSIBILITY FOR THE ACCURACY OR APPLICATION OF OR ERRORS OR OMISSIONS IN THE SOFTWARE OR THE MEDIA. IN NO EVENT SHALL ZIFF-DAVIS OR ITS AUTHORIZED DISTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR THE MEDIA, EVEN IF ZIFF-DAVIS OR ITS AUTHORIZED DISTRIBUTORS HAVE BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. ZIFF-DAVIS AND ITS AUTHORIZED DISTRIBUTORS SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGES OR COSTS, ARISING OUT OF, BUT NOT LIMITED TO, LOST PROFITS OR REVENUE, LOSS OF USE OF THE SOFTWARE OR THE MEDIA, LOSS OF DATA OR EQUIPMENT, THE COSTS OF RECOVERING THE SOFTWARE, THE MEDIA, DATA OR EQUIPMENT, THE COST OF SUBSTITUTE SOFTWARE, MEDIA, DATA OR EQUIPMENT OR CLAIMS BY THIRD PARTIES, OR OTHER SIMILAR COSTS.

SOME STATES DO NOT ALLOW EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

4. U.S. Government Restricted Rights

The Software is licensed subject to RESTRICTED RIGHTS. Use, duplication or disclosure by the Government or any person or entity acting on its behalf is subject to restrictions as set forth in subdivision (c)(1)(ii) of the Rights in Technical Data and Computer Software Clause at DFARS (48 CFR 252.227-7013) for DoD contracts, in paragraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights clause in the FAR (48 CFR 52.227-19) for civilian agencies, or in the case of NASA, in Clause 18-52.227-86(d) of the NASA Supplement to the FAR, or in other comparable agency clauses. The contractor/manufacturer is Ziff-Davis Benchmark Operation, 1001 Aviation Parkway, Suite 400, Morrisville, North Carolina 27560 .

5. General Provisions

Nothing in this Agreement constitutes a waiver of Ziff-Davis' rights under U.S. copyright laws or any other Federal, state, local or foreign law. You are responsible for installation, management, and operation of the Software. However, if you have questions or problems regarding the Software or Media, you can write to Ziff-Davis Benchmark Operation, 1001 Aviation Parkway, Suite 400, Morrisville, North Carolina 27560, Attn: Distribution Coordinator. This Agreement constitutes the entire agreement between the parties with respect to the Software and the Media and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, applicable to agreements made and performed in New York. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect and the unenforceable provision shall be reformed without further action by the parties and only to the extent necessary to make such provision valid and enforceable and to achieve the like economic intent and effect of such provision.

     

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