LEXMARK SOFTWARE LIMITED WARRANTY AND LICENSE AGREEMENT AND ADDITIONAL LICENSE TERMS FOR SUN MICROSYSTEMS, INC. SOFTWARE
PLEASE READ CAREFULLY BEFORE SELECTING THE "I Agree" OR "I Accept" BUTTON ON THIS PAGE: BY SELECTING THE "I Agree" OR "I Accept" BUTTON, YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS SOFTWARE LIMITED WARRANTY AND LICENSE AGREEMENTS. IF YOU DO NOT SO AGREE, SELECT THE "Disagree" OR "I do not accept" BUTTON ON THIS PAGE AND DO NOT INSTALL, COPY, DOWNLOAD, OR OTHERWISE USE THE SOFTWARE PROGRAM. IF YOU ARE INSTALLING THIS SOFTWARE PROGRAM FOR USE BY OTHER PARTIES, YOU AGREE TO INFORM THE USERS THAT USE OF THE SOFTWARE PROGRAM INDICATES ACCEPTANCE OF THESE TERMS.
I. LEXMARK SOFTWARE LIMITED WARRANTY AND LICENSE AGREEMENT
This Software License Agreement ("Software License Agreement") is a legal agreement between you (either an individual or a single entity) and Lexmark International, Inc. ("Lexmark") that, to the extent your Lexmark product or Software Program is not otherwise subject to a written software license agreement between you and Lexmark or its suppliers, governs your use of any Software Program installed on or provided by Lexmark for use in connection with your Lexmark product. The term "Software Program" includes machine-readable instructions, audio/visual content (such as images and recordings), and associated media, printed materials and electronic documentation, whether incorporated into, distributed with or for use with your Lexmark product, except any software owned by Sun Microsystems, Inc., which is subject to the Additional License Terms for Sun Microsystems, Inc. software as set forth below.
1. DISCLAIMER AND LIMITATION OF WARRANTIES. EXCEPT AS PROVIDED IN THIS SOFTWARE LICENSE AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LEXMARK AND ITS SUPPLIERS PROVIDE THE SOFTWARE PROGRAM "AS IS" AND HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ABSENCE OF VIRUSES, ALL WITH REGARD TO THE SOFTWARE PROGRAM. TO THE EXTENT LEXMARK CANNOT BY LAW DISCLAIM ANY COMPONENT OF THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, LEXMARK LIMITS THE DURATION OF SUCH WARRANTIES TO THE 90-DAY TERM OF THE EXPRESS SOFTWARE LIMITED WARRANTY.
This Agreement is to be read in conjunction with certain statutory provisions, as that may be in force from time to time, that imply warranties or conditions or impose obligations on Lexmark that cannot be excluded or modified. If any such provisions apply, then to the extent Lexmark is able, Lexmark hereby limits its liability for breach of those provisions to one of the following: providing you a replacement copy of the Software Program or reimbursement of the price paid for the Software Program.
The Software Program may include internet links to other software applications and/or internet web pages hosted and operated by third parties unaffiliated with Lexmark. You acknowledge and agree that Lexmark is not responsible in any way for the hosting, performance, operation, maintenance, or content of, such software applications and/or internet web pages.
2. LIMITATION OF REMEDY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL LIABILITY OF LEXMARK UNDER THIS SOFTWARE LICENSE AGREEMENT IS EXPRESSLY LIMITED TO THE GREATER OF THE PRICE PAID FOR THE SOFTWARE PROGRAM AND FIVE U.S. DOLLARS (OR THE EQUIVALENT IN LOCAL CURRENCY). YOUR SOLE REMEDY AGAINST LEXMARK IN ANY DISPUTE UNDER THIS SOFTWARE LICENSE AGREEMENT SHALL BE TO SEEK TO RECOVER ONE OF THESE AMOUNTS, UPON PAYMENT OF WHICH LEXMARK SHALL BE RELEASED AND DISCHARGED OF ALL FURTHER OBLIGATIONS AND LIABILITY TO YOU.
IN NO EVENT WILL LEXMARK, ITS SUPPLIERS, SUBSIDIARIES, OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS OR REVENUES, LOST SAVINGS, INTERRUPTION OF USE OR ANY LOSS OF, INACCURACY IN, OR DAMAGE TO, DATA OR RECORDS, FOR CLAIMS OF THIRD PARTIES, OR DAMAGE TO REAL OR TANGIBLE PROPERTY, FOR LOSS OF PRIVACY ARISING OUT OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE PROGRAM, OR OTHERWISE IN CONNECTION WITH ANY PROVISION OF THIS SOFTWARE LICENCE AGREEMENT), REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING BUT NOT LIMITED TO BREACH OF WARRANTY OR CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), AND EVEN IF LEXMARK, OR ITS SUPPLIERS, AFFILIATES, OR REMARKETERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY YOU BASED ON A THIRD-PARTY CLAIM, EXCEPT TO THE EXTENT THIS EXCLUSION OF DAMAGES IS DETERMINED LEGALLY INVALID. THE FOREGOING LIMITATIONS APPLY EVEN IF THE ABOVE-STATED REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
3. U.S.A. STATE LAWS. This Software Limited Warranty gives you specific legal rights. You may also have other rights that vary from state to state. Some states do not allow limitations on how long an implied warranty lasts or the exclusion of limitation of incidental or consequential damages, so the above limitations may not apply to you.
4. LICENSE GRANT. Lexmark grants you the following rights provided you comply with all terms and conditions of this Software License Agreement:
a. Use. You may Use one (1) copy of the Software Program. The term "Use" means storing, loading, installing, executing, or displaying the Software Program. You may not separate the components of the Software Program for use on more than one computer. You agree that you will not Use the Software Program, in whole or in part, in any manner that has the effect of overriding, modifying, eliminating, obscuring, altering or de-emphasizing the visual appearance of any trademark, trade name, trade dress or intellectual property notice that appears on any computer display screens normally generated by, or as a result of, the Software Program.
b. Copying. You may make one (1) copy of the Software Program solely for purposes of backup, archiving, or installation, provided the copy contains all of the original Software Program/s proprietary notices. You may not copy the Software Program to any public or distributed network. c. Reservation of Rights. The Software Program, including all fonts, is copyrighted and owned by Lexmark International, Inc. and/or its suppliers. Lexmark reserves all rights not expressly granted to you in this Software License Agreement.
d. Freeware. Notwithstanding the terms and conditions of this Software License Agreement, all or any portion of the Software Program that constitutes software provided under public license by third parties ("Freeware") is licensed to you subject to the terms and conditions of the software license agreement accompanying such Freeware, whether in the form of a discrete agreement, shrink-wrap license, or electronic license terms at the time of download or installation. Use of the Freeware by you shall be governed entirely by the terms and conditions of such license.
5. TRANSFER. You may transfer the Software Program to another end-user. Any transfer must include all software components, media, printed materials, and this Software License Agreement and you may not retain copies of the Software Program or components thereof. The transfer may not be an indirect transfer, such as a consignment. Prior to the transfer, the end-user receiving the transferred Software Program must agree to all these Software License Agreement terms. Upon transfer of the Software Program, your license is automatically terminated. You may not rent, sublicense, or assign the Software Program except to the extent provided in this Software License Agreement.
6. UPGRADES. To Use a Software Program identified as an upgrade, you must first be licensed to the original Software Program identified by Lexmark as eligible for the upgrade. After upgrading, you may no longer use the original Software Program that formed the basis for your upgrade eligibility.
7. LIMITATION ON REVERSE ENGINEERING. You may not alter, reverse engineer, reverse assemble, reverse compile or otherwise translate the Software Program or assist or otherwise facilitate others to do so, except as and to the extent expressly permitted to do so by applicable law for the purposes of inter-operability, error correction, and security testing. If you have such statutory rights, you will notify Lexmark in writing of any intended reverse engineering, reverse assembly, or reverse compilation. You may not decrypt the Software Program unless necessary for the legitimate Use of the Software Program.
8. ADDITIONAL SOFTWARE. This Software License Agreement applies to updates or supplements to the original Software Program provided by Lexmark unless Lexmark provides other terms along with the update or supplement.
9. LEXMARK PRINTER INVENTORY AND JOB STATISTICS PLUG-IN (LPIJSP) LPIJSP enables a degree of printer inventory and job statistics tracking. Lexmark does not guarantee the accuracy of the results generated by LPIJSP. As a result, LPIJSP should not be relied upon for accounting, billing or as part of a Managed Print Services engagement. To the extent permitted by applicable law, Lexmark disclaims any and all liability for costs or damages arising from or relating to the use of LPIJSP. In addition, LPIJSP is not to be used as part of a service or service bureau operation provided to third parties.
10. TERM. This Software License Agreement is effective unless terminated or rejected. You may reject or terminate this license at any time by destroying all copies of the Software Program, together with all modifications, documentation, and merged portions in any form, or as otherwise described herein. Lexmark may terminate your license upon notice if you fail to comply with any of the terms of this Software License Agreement. Upon such termination, you agree to destroy all copies of the Software Program together with all modifications, documentation, and merged portions in any form.
11. TAXES. You agree that you are responsible for payment of any taxes including, without limitation, any goods and services and personal property taxes, resulting from this Software License Agreement or your Use of the Software Program.
12. LIMITATION ON ACTIONS. No action, regardless of form, arising out of this Software License Agreement may be brought by either party more than two years after the cause of action has arisen, except as provided under applicable law.
13. APPLICABLE LAW. This Software Licensing Agreement is governed by the laws of the Commonwealth of Kentucky, United States of America. No choice of law rules in any jurisdiction shall apply. The UN Convention on Contracts for the International Sale of Goods shall not apply.
14. UNITED STATES GOVERNMENT RESTRICTED RIGHTS. The Software Program has been developed entirely at private expense. Rights of the United States Government to use the Software Program is as set forth in this Software License Agreement and as restricted in DFARS 252.227-7014 and in similar FAR provisions (or any equivalent agency regulation or contract clause).
15. CONSENT TO USE OF DATA. You agree that Lexmark, its affiliates, and agents may collect and use information you provide in relation to registration and support services and upgrades performed with respect to the Software Program. Lexmark agrees not to use this information in a form that personally identifies you except to the extent necessary to provide such services.
16. EXPORT RESTRICTIONS. You may not (a) acquire, ship, transfer, or reexport, directly or indirectly, the Software Program or any direct product therefrom, in violation of any applicable export laws or (b) permit the Software Program to be used for any purpose prohibited by such export laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.
17. AGREEMENT TO CONTRACT ELECTRONICALLY. You and Lexmark agree to form this Software License Agreement electronically. This means that when you click the "Agree" or "I accept" button on this page, you acknowledge your agreement to these Software License Agreement terms and conditions and that you are doing so with the intent to "sign" a contract with Lexmark.
18. CAPACITY AND AUTHORITY TO CONTRACT. You represent that you are of the legal age of majority in the place you sign this Software License Agreement and, if applicable, you are duly authorized by your employer or principal to enter into this contract.
19. ENTIRE AGREEMENT. This Software License Agreement (including any addendum or amendment to this Software License Agreement that is included with the Software Program) is the entire agreement between you and Lexmark relating to the Software Program. Except as otherwise provided for herein, these terms and conditions supersede all prior or contemporaneous oral or written communications, proposals, and representations with respect to the Software Program or any other subject matter covered by this Software License Agreement (except (a) with respect to software owned by Sun Microsystems, Inc. which is subject to the Additional License Terms for Sun Microsystems, Inc. software as set forth below and (b) to the extent such extraneous terms do not conflict with the terms of this Software License Agreement, any other written agreement signed by you and Lexmark relating to your Use of the Software Program). To the extent any Lexmark policies or programs for support services conflict with the terms of this Software License Agreement, the terms of this Software License Agreement shall control.
II. ADDITIONAL LICENSE TERMS FOR SUN MICROSYSTEMS, INC. SOFTWARE
In addition to the foregoing, with respect to any Sun Microsystems, Inc. software ("Sun Software") licensed hereunder, the following terms apply:
1. LICENSE RESTRICTIONS. The Sun Software is licensed to Licensee only under the terms of this Agreement, and Sun reserves all rights not expressly granted to Licensee. Licensee may not use, copy, modify, or transfer the Sun Software, or any copy thereof, except as expressly provided for in this Agreement or by applicable law. Except as otherwise provided by law for purposes of decompilation of the Sun Software solely for inter-operability, error correction or security testing, Licensee may not reverse engineer, disassemble, decompile, or translate the Sun Software, or otherwise attempt to derive the source code of the Sun Software. Licensee may not rent, lease, loan, or sell the Sun Software, or any part of the Software. No right, title, or interest in or to any trademarks, service marks, or trade names of Sun or Sun's licensors is granted hereunder.
2. AIRCRAFT PRODUCT AND NUCLEAR APPLICATIONS RESTRICTION. Sun Software is not designed or intended for use in on-line control of aircraft, air traffic, aircraft navigation or aircraft communications; or in the design, construction, operation or maintenance of any nuclear facility. Sun disclaims any express or implied warranty of fitness for such uses. Licensee warrants that it will not use or redistribute the Sun Software for such purposes.
3. NO WARRANTY. To the full extent permitted by law, the Sun Software is provided to licensee "AS IS". All express or implied conditions, representations, and warranties, including any implied warranty of merchantability, satisfactory quality, fitness for a particular purpose, or non-infringement, are disclaimed, except to the extent that such disclaimers are held to be legally invalid.
4. LIMITATION OF DAMAGES. To the extent not prohibited by applicable law, Sun's aggregate liability to Licensee or to any third party for claims relating to this agreement, whether for breach or in tort, will be limited to the fees paid by Licensee for Sun Software which is the subject matter of the claims. To the full extent permitted by applicable law, in no event will Sun be liable for any indirect, punitive, special, incidental or consequential damage in connection with or arising out of this Agreement (including loss of business, revenue, profits, use, data or other economic advantage), however it arises, whether for breach or in tort (including, without limitation, negligence), even if Sun has been previously advised of the possibility of such damage. Liability for damages will be limited and excluded, even if any exclusive remedy provided for in this Agreement fails of its essential purpose.
5. GOVERNMENT USER RIGHTS IN DATA: If procured by, or provided to, the U.S. Government, use, duplication, or disclosure of technical data is subject to restrictions as set forth in DFARS 252.227-7013(c) (1) (ii), FAR 52.227-14(g)(2), Rights in Data-General (June 1987); and for computer software and computer software documentation, FAR 52-227-19, Commercial Computer Software-Restricted Rights (June 1987). However, if under DOD, use, duplication, or disclosure of technical data is subject to DFARS 252.227-7015(b), Technical Data-Commercial Items (June 1995); and for computer software and computer software documentation, as specified in the license under which the computer software was procured pursuant to DFARS 227.7202-3(a). Licensee shall not provide Sun Software nor technical data to any third party, including the U.S. Government, unless such third party accepts the same restrictions. Licensee is responsible for ensuring that proper notice is given to all such third parties and that the Sun Software and technical data are properly marked.
6. EXPORT LAW. Licensee acknowledges and agrees that the Sun Software and/or technology is subject to the U.S. Export Administration Laws and Regulations. Diversion of such Sun Software and/or technology contrary to U.S. law is prohibited. Licensee agrees that none of the Sun Software and/or technology, nor any direct product therefrom, is being or will be acquired for, shipped, transferred, or reexported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor be used for nuclear activities, chemical biological weapons, or missile projects unless authorized by the U.S. Government. Proscribed countries are set forth in the U.S. Export Administration Regulations. Countries subject to U.S. embargo are: Cuba, Iran, Iraq, Libya, North Korea, Syria, and the Sudan. This list is subject to change without further notice from Sun, and Licensee must comply with the list as it exists in fact. Licensee certifies that it is not on the U.S. Department of Commerce's Denied Persons List or affiliated lists or on the U.S. Department of Treasury's Specially Designated Nationals List. Licensee agrees to comply strictly with all U.S. export laws and assumes sole responsibility for obtaining licenses to export or re-export as may be required. Licensee is responsible for complying with any applicable local laws and regulations, including but not limited to, the export and import laws and regulations of other countries.
7. TRADEMARKS AND LOGOS. This Agreement does not authorize Licensee to use any Sun name, trademark or logo. Licensee acknowledges that Sun owns the Java trademark and all Java-related trademarks, logos and icons including the Coffee Cup and Duke ("Java Marks") and agrees to: (i) comply with the Java Trademark Guidelines at http://java.sun.com/trademarks.html; (ii) not do anything harmful to or inconsistent with Sun's rights in the Java Marks; and (iii) assist Sun in protecting those rights, including assigning to Sun any rights acquired by Licensee in any Java Mark.
8. TERMINATION. This Agreement is effective until terminated. You may terminate this Agreement at any time by destroying all copies of Sun Software. This Agreement will terminate immediately without notice from Sun if you fail to comply with any provision of this Agreement. Upon Termination, you must destroy all copies of Sun Software.
9. GOVERNING LAW. Any action related to the Sun Software will be governed by California law and controlling U.S. federal law. No choice of law rules of any jurisdiction will apply.
10. SEVERABILITY. If any provision of this Agreement is held to be unenforceable, This Agreement will remain in effect with the provision omitted, unless omission would frustrate the intent of the parties, in which case this Agreement will immediately terminate.
11. INTEGRATION. This Agreement is the entire agreement between you and Sun relating to its subject matter. 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 during the term of this Agreement. No modification of this Agreement will be binding, unless in writing and signed by an authorized representative of each party.
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MarkVision Professional is the printing device management utility you should trust to provide total control of your networked printing environment. From desktop lasers to departmental multifunction products, MarkVision allows network administrators to actively manage most network-printing devices from within a single utility--true helpdesk professional!
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