End-User License Agreement for Gemplus Software

IMPORTANT-READ CAREFULLY:  This End-User License Agreement for Gemplus Software ("EULA") is a legal and binding agreement between you and the subsidiary or affiliate of Gemplus International S.A. that distributes the Software to you under this EULA ("Gemplus").  "You" are a person or legal entity wishing to use the Software (defined below) in accordance with this EULA.  This EULA governs your use of all of the Gemplus Software distributed or delivered hereunder.  "Software" means all computer software, associated media, any printed materials and any accompanying "online" or electronic information.  By downloading, installing, copying, breaking any seal on, or otherwise using the Software, you acknowledge that you have read this EULA and agree to be bound by its terms.  If you do not agree to the terms and provisions of this EULA, do not download, install, copy, or otherwise use the Software; if you have already paid for this Software and do not agree to the terms and conditions of the EULA, please return the Software and any accompanying items to Gemplus for a full refund, within thirty (30) days of the date of purchase.

SOFTWARE PRODUCT LICENSE

1.	Ownership.  The Software is owned and copyrighted by Gemplus or its third party suppliers and  is licensed (and not sold) to you.  Gemplus's third party suppliers or distributors may assert and protect any of their rights (and with Gemplus's permission, Gemplus's rights) in the event of any violation of this EULA. 

2.	Grant of License.  Gemplus grants you the following nonexclusive rights:

(a) 	For single-user versions, you may install and use one copy of the Software on a single computer for internal purposes only in accordance with the documentation provided with the Software, and not for the benefit of any third party. The Software shall be considered in "use" when it is installed in the temporary memory (e.g., RAM), or the permanent memory (e.g., hard drive), of any computing device.

(b)	For multi-user versions of the Software (e.g., a Gemplus 10-User Pack), you may copy, install and use the Software for internal purposes only and not for the benefit of any third party on the number of computers or simultaneous users per copy specifically identified in the documentation or invoice accompanying the Software.  Unless otherwise specified by Gemplus, you shall only use the Software on a single computing device. 

(c) 	You must reproduce on any copy all copyright notices and any other ownership, confidentiality or proprietary legends that are on the original copy of the Software and accompanying documentation, and you may make only one copy of the Software solely for backup or archival purposes, provided that such backup copy is not installed on any computer. 

(d) 	The Software media may contain two system versions of the Software (e.g., a Macintosh version and a Windows version) and multiple language versions of the Software.  For a single user license, you may install one system and language version of the Software on a single computing device; you may not install any of the other versions on another computing device.  For a multi-user license, you may install the Software (regardless of version) only on the number of computing devices or for the number of simultaneous users per copy specifically identified in the documentation accompanying the Software.  For example, if you have purchased a ten-user license, you may install a copy on up to ten (10) computing devices or one copy on a single computing device for access by ten (10) simultaneous users, seven (7) Windows and three (3) Macintosh copies in one language on an aggregate of ten (10) computing devices, or any other combination of the two systems and language versions that total in the aggregate ten (10) copies or access by ten (10) simultaneous users.

(e)	If the Software includes any software development tools or a software development kit and any hardware related thereto (collectively, "SDK"), you shall only use the SDK for the development of software, and in accordance with the documentation provided with such SDK.  You shall not sell or distribute any products (e.g., microprocessors cards) using or incorporating any software developed with the use of any SDK.  Applications or software developed with the use of any SDK shall only be loaded or stored in any media (e.g., microprocessor cards) for test and development purposes, and not for commercial use or distribution.

(f)	All rights not expressly granted to you in this EULA are reserved by Gemplus and its suppliers.  No rights are granted by implication or otherwise.

3.	Termination. This EULA may be terminated by Gemplus upon notice and without further action upon the breach of any of your obligations or the license rights granted to you under this EULA.  Upon termination, all use of the Software by you must cease and all rights granted to you under this EULA are terminated.  Upon termination you hereby agree to return to Gemplus or to destroy all copies of the Software in your possession or control within fourteen (14) days of such termination and certify the same in an affidavit to Gemplus upon request. This remedy is in addition to any other remedies available to Gemplus.  Sections 1, 3, 4, and 8 through 11 hereof shall survive any termination of this EULA.

4.	Copyright.  All rights, title, and proprietary rights in and to the Software (including, but not limited to, any patents, trade secrets, trademarks, copyrights, images, photographs, animations, video, audio, music, text, software code and "applets" incorporated into the Software) and all copies of the Software are owned by Gemplus or its suppliers.  The Software is protected by copyright laws, international treaty provisions, and other laws.  Acts in violation of this EULA may also be a crime punishable by fine or imprisonment under applicable law.  You understand that Gemplus may update or revise the Software in its sole discretion, but has no obligation to furnish any Software updates or revisions to you.  If you upgrade the Software to a higher-numbered or later version of the Software  (e.g., from GemSafe 3.x to GemSafe 4.x) or to a comparable Gemplus software product, including versions for different operating systems ("Replacement Software"), unless otherwise indicated in any end user license agreement accompanying such Replacement Software, this EULA is terminated to the extent it covers the replaced software and your rights in the Replacement Software will be governed by the end user license terms applicable to that Replacement Software.  If any Replacement Software, or other Software of Gemplus, is distributed to you without a separate end user license agreement, this EULA shall govern all your rights and obligations therein.

5.	Description of Other Rights and Limitations.

(a)	Prohibitions on Reverse-Engineering, Decompilation, and Disassembly.  You may not reverse-engineer, decompile, or disassemble the Software, or otherwise reduce the code of the Software to a human perceivable form, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding the restrictions of this Section 5(a), and in such event you shall provide Gemplus immediate notification of such activities.

(b)	Distribution.  You may not market, distribute, transfer copies of the Software to others or electronically transfer the Software from one computer to another over a network except for Software installations permitted under Section 2 of this EULA.

(c)	Rental.  You may not rent, lease, or lend the Software.

(d)	Adaptation.  You may not modify, adapt, translate the Software or create derivative works based on the Software.

6.	Export Restrictions.  You agree to comply with all laws applicable to your use of the Software.  You further agree that you will not export or re-export the Software, any part thereof, or any process or service that is the product of the Software (the foregoing collectively referred to as the "Restricted Components"), to any country, person or entity subject to export restrictions.  You specifically agree not to export or re-export any of the Restricted Components:  (i) to any country to which the United States ("U.S.") has embargoed or restricted the export of goods or services, which currently include, but are not necessarily limited to Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria, or to any national of any such country, wherever located, who intends to transmit or transport the Restricted Components back to such country; (ii) to any entity who you know or have reason to know will utilize the Restricted Components in the design, development or production of nuclear, chemical or biological weapons; or (iii) to any entity who you know or have reason to know has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government.  You warrant and represent that neither the Bureau of Export Administration nor any other U.S. federal agency has suspended, revoked or denied your export privileges.

7.	U.S. Government Restricted Rights.  All Software provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995, is provided with the commercial license rights and restrictions described elsewhere herein.  All Software provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995, is provided with "Restricted Rights" as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or DFAR, 48 CFR 52.227-7013 (OCT 1988), as applicable.  You are responsible for ensuring Software is marked with the "Restricted Rights Notice" or "Restricted Rights Legend," as required.  

8.	Limited Warranty, Disclaimer of Implied Warranties & Duties, Limited Warranty Remedy.  

(a)	Limited Warranty.  Gemplus solely warrants for your sole benefit, that the Software will perform substantially in accordance with the specifications provided and labeled as such in the documentation accompanying the Software for a period of ninety (90) days after proper installation on a computing device for which a license is granted hereunder. 

(b)	Disclaimer of Implied Warranties and Duties.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GEMPLUS, ITS SUPPLIERS, AND DISTRIBUTORS PROVIDE THE SOFTWARE AND ANY (IF ANY) SUPPORT SERVICES RELATED TO THE SOFTWARE ("SUPPORT SERVICES") WITHOUT ANY EXPRESS WARRANTY, AND THE SOFTWARE AND SUPPORT SERVICES ARE PROVIDED "AS IS" AND "WITH ALL FAULTS."  GEMPLUS HEREBY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, DUTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES OF CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LACK OF VIRUSES, ACCURACY OF INFORMATION OR COMPLETENESS OF RESPONSES, RESULTS, AND OF LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT, CONDITION OF TITLE, QUITE ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO ANY DESCRIPTION PROVIDED IN ANY WRITTEN TEXT.

(c)	Limited Warranty Remedy.  Gemplus's sole obligation, and your exclusive remedy, under the limited warranty set forth in Section 8(a), above shall be, at the sole discretion of Gemplus, to supply you with a corrected or replacement copy of the Software or a refund of all amounts received by Gemplus from you for the subject Software provided under this EULA.  Any replacement Software will be warranted as set forth above for the remainder of the original warranty period or thirty (30) days from your receipt of such replacement Software, whichever is longer.

(d)	Gemplus does not warrant that the Software will be resistant to all possible efforts to defeat or disable its functions, including its security mechanisms, and Gemplus shall not incur, and disclaims, any liability in this respect.  Security mechanisms' resistance and strength necessarily evolve according to the applicable state of the art in security and with reference to the emergence of new technologies and methods developed in efforts to defeat or disable such mechanisms.  To the maximum extent permissible by law, Gemplus shall not be held liable for any third party actions and in particular in case of any successful effort to defeat or disable security functions of the Software, or computing devices and equipment using, accessing or incorporating the Software.

(e)	NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY GEMPLUS, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES CREATES A WARRANTY AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
 
9.	Exclusion of Incidental, Consequential and Certain Other Damages.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GEMPLUS OR ITS SUPPLIERS OR DISTRIBUTORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUES OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF GEMPLUS OR ANY SUPPLIER, AND EVEN IF GEMPLUS OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.	Limitation of Liability and Remedies.  NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF GEMPLUS AND ANY OF ITS SUPPLIERS UNDER THIS EULA AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING IS LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR U.S.$5.00.  THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.  YOU HEREBY WAIVE AND FOREVER RELEASE GEMPLUS FROM ANY AND ALL CLAIMS IN EXCESS OF THAT AMOUNT.

11.	General Provisions.  This EULA contains the entire agreement between the parties with respect to its subject matter, and supersedes all prior or contemporaneous agreements or understandings (oral or written).  This EULA is governed by and shall be interpreted in accordance with the laws of the jurisdiction or location ("Location") of the offices of the Gemplus entity distributing the Software to you as indicated in the documentation accompanying the Software, without giving effect to any applicable choice of law principles.  Any and all disputes, claims or legal proceedings arising hereunder shall be subject to the nonexclusive jurisdiction of the competent courts of the Location.  This EULA is not governed by the United Nations Convention for the International Sales of Goods, the application of which is expressly excluded.  This EULA may not be modified except by a written addendum issued by a duly authorized representative of Gemplus.  No provision of this EULA can be waived unless such waiver is in writing and signed by a duly authorized representative of Gemplus.  If any part of this EULA is found to be unenforceable or void, the remainder, except for Section 2 hereof, shall stay valid and enforceable.  

If you have any questions about this EULA, please immediately contact Gemplus at www.gemplus.com.

