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| PROLIANT ESSENTIALS SOFTWARE |
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| END USER LICENSE AGREEMENT |
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| PLEASE READ THIS END USER LICENSE AGREEMENT ("AGREEMENT") CAREFULLY. THIS |
| AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR SINGLE |
| ENTITY) ("YOU") AND HEWLETT-PACKARD COMPANY ("HP"). BY CLICKING THE "AGREE" |
| BUTTON BELOW, COPYING, INSTALLING, OR OTHERWISE USING THE SOFTWARE, |
| (i) YOU DO SO WITH THE INTENT TO ELECTRONICALLY "EXECUTE" THIS AGREEMENT, AND |
| (ii) YOU AGREE TO BE BOUND BY AND COMPLY WITH THE FOLLOWING TERMS AND |
| CONDITIONS, INCLUDING THE WARRANTY STATEMENT, AS WELL AS ANY TERMS AND |
| CONDITIONS CONTAINED IN THE "ANCILLARY SOFTWARE" LIST. |
| |
| IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, |
| (A) IF THIS AGREEMENT IS DISPLAYED ELECTRONICALLY, YOU MAY INDICATE REJECTION |
| OF THIS AGREEMENT BY CLICKING THE "DISAGREE" BUTTON; |
| (B) YOU SHALL NOT INSTALL THE SOFTWARE; AND |
| (C) HP DOES NOT GRANT YOU ANY RIGHTS TO USE THE SOFTWARE. |
| NOTWITHSTANDING THE FOREGOING, INSTALLING OR OTHERWISE USING THE SOFTWARE |
| INDICATES YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. |
| IF YOU PURCHASED THE SOFTWARE, YOU MAY RETURN THE SOFTWARE TO THE PLACE OF |
| PURCHASE FOR A FULL REFUND. |
| |
| THE SOFTWARE PROVIDED HEREIN, IS PROVIDED BY HP AND BY THIRD PARTIES, INCLUDING |
| THE OPEN SOURCE COMMUNITY ("ANCILLARY SOFTWARE"). USE OF THE HP SOFTWARE, THE |
| ANCILLARY SOFTWARE, ACCOMPANYING PRINTED MATERIALS, AND THE "ONLINE" OR |
| ELECTRONIC DOCUMENTATION (COLLECTIVELY THE "PRODUCT") IS CONDITIONED UPON AND |
| LIMITED BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE "AS IS WARRANTY |
| STATEMENT" AND THE TERMS AND CONDITIONS OF THE ANCILLARY SOFTWARE LICENSE |
| AGREEMENTS ("ANCILLARY SOFTWARE LICENSES"). |
| |
| USE OF ANCILLARY SOFTWARE SHALL BE GOVERNED BY THE ANCILLARY SOFTWARE LICENSE, |
| EXCEPT THAT THE DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITIES |
| PROVISIONS CONTAINED IN THE "AS-IS WARRANTY STATEMENT" OF THIS AGREEMENT SHALL |
| ALSO APPLY TO SUCH ANCILLARY SOFTWARE. HP HAS IDENTIFIED ANCILLARY SOFTWARE |
| BY EITHER NOTING THE ANCILLARY SOFTWARE PROVIDER"S OWNERSHIP WITHIN EACH |
| ANCILLARY SOFTWARE PROGRAM FILE AND/OR BY PROVIDING LICENSING INFORMATION IN |
| THE "ANCILLARY SOFTWARE" LIST. BY ACCEPTING THE TERMS AND CONDITIONS OF THIS |
| AGREEMENT, YOU ARE ALSO ACCEPTING THE TERMS AND CONDITIONS OF EACH ANCILLARY |
| SOFTWARE LICENSE IN THE ANCILLARY SOFTWARE LIST. |
| |
| IF AND ONLY IF THE PRODUCT INCLUDES SOFTWARE LICENSED UNDER THE GNU GENERAL |
| PUBLIC LICENSE ("GPL SOFTWARE"), YOU MAY OBTAIN A COMPLETE MACHINE-READABLE |
| COPY OF THE GPL SOFTWARE SOURCE CODE ("GPL SOURCE CODE") BY DOWNLOAD FROM A |
| SITE SPECIFIED IN THE FOLLOWING HP WEBSITE: |
| HTTP://H18004.WWW1.HP.COM/PRODUCTS/SERVERS/PROLIANTESSENTIALS/VALUEPACK/LICENSING.HTML. |
| UPON YOUR WRITTEN REQUEST, HP WILL PROVIDE, FOR A FEE COVERING THE COST OF |
| DISTRIBUTION, A COMPLETE MACHINE-READABLE COPY OF THE GPL SOURCE CODE, BY MAIL, |
| TO YOU. INFORMATION ABOUT HOW TO MAKE A WRITTEN REQUEST FOR GPL SOURCE CODE |
| MAY BE FOUND AT THE FOLLOWING WEBSITE: |
| HTTP://H18004.WWW1.HP.COM/PRODUCTS/SERVERS/PROLIANTESSENTIALS/VALUEPACK/LICENSING.HTML . |
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| LICENSE TERMS |
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| SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY RIGHTS, |
| LIMITATIONS AND OBLIGATIONS SET FORTH IN THE ANCILLARY SOFTWARE LICENSES: |
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| 1. LICENSE GRANT |
| |
| a. IF SOFTWARE DOES NOT REQUIRE AN ACTIVATION KEY. If the Software does |
| not require an Activation Key and provided that You comply with all the terms |
| and conditions of this Agreement, HP grants You a non-exclusive, |
| non-transferable (except as provided in Section 16), worldwide (except for the |
| countries referenced in Section 12) license under HP's copyrights, to install, |
| copy on as many computers as you need for your business, use, execute, make |
| archival or backup copies, and display ("Use") the object code version of the |
| Product on the computer(s) on which this Product is installed and in the |
| operating environment as identified by HP in the accompanying materials. |
| |
| b. IF SOFTWARE REQUIRES AN ACTIVATION KEY. If the Software requires an |
| Activation Key, and provided that You comply with all terms and conditions of |
| this Agreement, then depending upon the specific hardware configuration You |
| employ, HP grants You the following license ("License Type") and rights: |
| |
| Authorized Copies. You are licensed to install, make Authorized Copies |
| of (as defined in this section), execute, and display ("Use") the object code |
| version of the Product on an equivalent number of Computers, Host/Client Pairs, |
| Computer Nodes, or Clustered Computers (as defined in the table below) as you |
| have Authorized Copies. Authorized Copies is defined as the number of copies |
| that you have paid for as stated in the invoice or comparable document |
| evidencing an authorized quantity. |
| |
| LICENSE TYPE SOFTWARE INSTALLS TO: LICENSED RIGHTS |
| (hardware configuration) |
| ------------------------------------------------------------------------------ |
| Computer A computer You have a right to install |
| and Use the Product on a single |
| computer. The installed copy |
| may not be transferred to or |
| used on any other computer. |
| |
| ------------------------------------------------------------------------------ |
| Node/Client A set of computers with a You have a right to install and |
| minimum of one host and one Use the Product on a Host/Client |
| client connected to each Pair or a Single Node. Copies |
| other ("Host/Client Pair"), of the Product installed on a |
| or in certain instances, a Host/Client Pair or Single Node |
| single computer may not be transferred to any |
| ("Single Node") other host or client computers |
| or other single nodes. You can |
| continue to Use the Product on |
| licensed clients when a new |
| server is introduced to the |
| licensed clients. |
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| ------------------------------------------------------------------------------ |
| Cluster More than two computers You have a right to install and |
| physically connected together Use the Product on each |
| in a cluster configuration Clustered Computer. The |
| (each of which is referred to installed copy may not be |
| as "Clustered Computer") transferred to or used on any |
| other computer. |
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| Storage. You may copy the Product into the local memory or storage |
| device of the hardware configuration loaded with the Authorized Copies. You may |
| copy the Product onto a reasonable number of network servers or a secure |
| intranet for the sole purpose of distributing the Product to the Computers, |
| Host/Client Pairs, Computer Nodes, or Clustered Computers. You may make |
| archival or back-up copies of the Product. You shall keep the activation key |
| with the hardware configuration to which the activation key is licensed. You |
| should keep copies of the activation key information for future retrieval |
| purposes. |
| |
| 2. NEW RELEASES. "New Release" means a release of the Product that may |
| contain fixes, corrections, or minor improvements to the Product. New Releases |
| are distributed from time to time solely at the option of HP. If HP offers a |
| New Release, it may come with its own terms and conditions, however if it does |
| not, You may use the New Release only under the terms and conditions of this |
| Agreement. |
| 3. NEW VERSIONS. "New Version" means a version of the Product that may |
| contain significant changes, enhancements, and/or functional improvements to |
| the Product. New Versions are distributed solely at the option of HP. If HP |
| offers a New Version, it may come with its own terms and conditions, however |
| if it does not, You may use the New Version only under the terms and conditions |
| of this Agreement. |
| 4. OWNERSHIP. The Product is owned and copyrighted by Hewlett-Packard |
| Development Company, L.P., HP's intellectual property management company, and |
| by third party suppliers, except for the Ancillary Software, which is owned and |
| copyrighted by the Ancillary Software providers indicated in the ANCILLARY |
| SOFTWARE list. Your right to Use the Product confers no title or ownership and |
| is not a sale of the Product or any part thereof. Third party suppliers and |
| Ancillary Software providers are intended beneficiaries under this Agreement |
| and may protect their rights in their respective portions of the Product |
| directly against You. |
| 5. TRANSFER. Without the prior written consent of HP, or unless |
| specifically permitted in the Ancillary Software License, You have no right |
| (a) to rent, lease, lend, or otherwise transfer the rights to the Product to |
| anyone else; (b) to Use the Product for commercial timesharing or bureau use; |
| or (c) to copy the Product onto any public or distributed network. |
| 6. COPYRIGHT. United States copyright laws, other countries' copyright |
| laws, and international treaty provisions protect the Product. You shall not |
| remove any product identification, copyright notices, or proprietary notices |
| from the Product. |
| 7. SUPPORT. Support terms and conditions and contact information are |
| detailed in the Worldwide Limited Warranty and Technical Support for Industry |
| Standard Server Products statement ("Support Statement"), a copy of which is |
| available on the HP web site at www.hp.com. Subject to the terms of the |
| Support Statement, for HP software products installed on HP computers, |
| technical support for questions regarding media and Product installation may |
| be available for a ninety (90) day period from the date of purchase of the HP |
| computer on which this Product is installed ("Support Term"). To access this |
| support in North America, call the HP Technical Support Phone Center at |
| 1-800-652-6672. This service is available during normal business hours, |
| Monday through Friday, during the Support Term. Outside North America, call |
| the nearest HP Technical Support Center. No other support, including |
| without limitation any on-site support, is provided under this Agreement. |
| 8. LIMITATION ON REVERSE ENGINEERING. Reverse engineering of Ancillary |
| Software shall be governed by its respective Ancillary Software License. As |
| for the remainder of the Product, You shall not modify, disassemble, reverse |
| engineer, decompile, decrypt, or otherwise attempt to access or determine the |
| source code of the Product without HP's prior written consent. Where You have |
| other statutory rights with regard to software, You shall provide HP with |
| reasonably detailed information regarding any intended disassembly or |
| decompilation of the Product prior to performing such disassembly or |
| decompilation. You shall not decrypt the Product unless necessary for the |
| licensed Use of the Product. |
| 9. RESERVATION OF RIGHTS. HP, its third party suppliers, and Ancillary |
| Software providers reserve all rights not expressly granted to You in this |
| Agreement. |
| 10. TERM AND TERMINATION. You may exercise the rights of this Agreement |
| and of the Ancillary Software Licenses for a period of time starting at Your |
| acceptance of the terms and conditions of this Agreement and for so long as |
| You meet such terms and conditions ("Term"). Notwithstanding the foregoing, |
| HP may terminate Your right to Use the Product, upon notice, for Your failure |
| to comply with any such term or condition. Immediately upon termination, You |
| shall remove, destroy, or return to HP all copies of the Product, including |
| those copies of the Product that are merged into Your adaptations, except for |
| individual pieces of data in Your database. With HP's prior written consent, |
| one copy of the Product may be retained, for archival purposes only, subsequent |
| to termination. You may terminate this Agreement at any time by returning or |
| destroying the Product together with merged portions in any form. |
| 11. CONFIDENTIAL COMPUTER SOFTWARE. Valid license from HP required for |
| possession, use, or copying. Consistent with FAR 12.211 and 12.212, Commercial |
| Computer Software, Computer Software Documentation, and Technical Data for |
| Commercial Items are licensed to the U.S. Government under vendor's standard |
| commercial license. |
| 12. COMPLIANCE WITH LAW. The Product and any associated hardware, |
| software, technology or services may not be exported, reexported, transferred |
| or downloaded to persons or entities listed on the U.S. Department of Commerce |
| Denied Persons List, Entity List of proliferation concern, or on any U.S. |
| Treasury Department Designated Nationals exclusion list, any country under |
| U.S. economic embargo, or to parties directly or indirectly involved in the |
| development or production of nuclear, chemical, biological weapons or in |
| missile technology programs as specified in the U.S. Export Administration |
| Regulations (15 CFR 744). By accepting this Agreement You confirm that You |
| are not (i) located in (or a national resident of) any country under U.S. |
| economic embargo, (ii) identified on any U.S. Department of Commerce Denied |
| Persons List, Entity List or Treasury Department Designated Nationals exclusion |
| list, and (iii) directly or indirectly involved in the development or |
| production of nuclear, chemical, biological weapons or in missile technology |
| programs as specified in the U.S. Export Administration Regulations. |
| 13. APPLICABLE LAW. This Agreement shall be construed in accordance with |
| the laws of the State of Texas, without regard to conflict of laws principles. |
| The United Nations Convention on Contracts for the International Sale of Goods |
| is specifically disclaimed. If the Product was acquired outside the United |
| States, then local law may apply. |
| 14. SEVERABILITY. If any term or provision of this Agreement is determined |
| to be illegal or unenforceable, the validity or enforceability of the remainder |
| of the terms or provisions herein will remain valid and in full force and |
| effect. Failure or delay in enforcing any right or provision of this Agreement |
| shall not be deemed a waiver of such right or provision with respect to any |
| subsequent breach. Provisions herein, which by their nature extend beyond the |
| termination of the license in the Product, will remain in effect until |
| fulfilled. |
| 15. CONSENT TO USE OF DATA. You agree that HP may collect and use technical |
| information that You provide in connection with Your Use and request for |
| technical support of the Product from HP, however, HP will not use this |
| information in a form that personally identifies You. |
| 16. ASSIGNMENT. You may not assign, sublicense or transfer this Agreement, |
| the Product, or any rights or obligations hereunder without the prior written |
| consent of HP. Any such attempted assignment, sublicense, or transfer will be |
| null and void, and in such event, HP may terminate this Agreement immediately. |
| Notwithstanding the foregoing, You may assign this Agreement and the rights |
| granted hereunder with the transfer of all or substantially all of Your |
| business. The right to assign or transfer Ancillary Software is governed by |
| the terms and conditions of the Ancillary Software Licenses. |
| 17. ENTIRE AGREEMENT. This Agreement, including all Ancillary Software |
| Licenses in the ANCILLARY SOFTWARE list, is the final, complete and exclusive |
| agreement between You and HP relating to the Product, and supersedes any |
| previous communications, representations, or agreements between the parties, |
| whether oral or written, regarding the subject matter hereof. Any additional |
| or different terms and conditions not expressly set forth herein will not |
| apply. This Agreement may not be changed except by an amendment signed by an |
| authorized representative of both You and HP. To the extent the terms of any |
| HP policies or programs for support services conflict with the terms of this |
| Agreement, the terms of this Agreement shall control. |
| 18. WARRANTY |
| |
| a. NO ACTIVATION KEY REQUIRED SOFTWARE - AS-IS WARRANTY STATEMENT: |
| |
| DISCLAIMER. TO THE EXTENT ALLOWED BY APPLICABLE LAW, THIS PRODUCT AND |
| SUPPORT SERVICES, IF ANY, ARE PROVIDED TO YOU "AS IS" WITHOUT WARRANTIES OF |
| ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED. HP SPECIFICALLY |
| DISCLAIMS ANY IMPLIED WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION, |
| WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, TITLE, |
| ACCURACY OF INFORMATIONAL CONTENT, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY |
| OR COMPLETENESS OF RESPONSES, RESULTS, OR WORKMANLIKE EFFORT, LACK OF VIRUSES, |
| AND LACK OF NEGLIGENCE, ALL WITH REGARD TO THE PRODUCT, AND THE PROVISION OF |
| OR FAILURE TO PROVIDE SUPPORT SERVICES. IN ADDITION, WITHOUT LIMITATION, |
| THERE IS NO WARRANTY OF QUIET ENJOYMENT, QUIET POSSESSION AND CORRESPONDENCE |
| TO DESCRIPTION WITH REGARD TO THE PRODUCT. YOU ASSUME THE ENTIRE RISK AS TO |
| THE RESULTS AND PERFORMANCE OF THE PRODUCT. NO ORAL OR WRITTEN INFORMATION OR |
| ADVICE GIVEN BY HP, HP"S AUTHORIZED REPRESENTATIVES, OR ANY OTHER PARTY SHALL |
| CREATE A WARRANTY OR AMEND THIS "AS IS" WARRANTY. Some jurisdictions do not |
| allow exclusions of implied warranties or conditions, so the above exclusion |
| may not apply to You to the extent prohibited by such local laws. You may have |
| other rights that vary from country to country, state to state, or province to |
| province. |
| |
| b. ACTIVATION KEY REQUIRED SOFTWARE - LIMITED WARRANTY. |
| |
| HP warrants that the Product will perform substantially in accordance with the |
| accompanying materials for a period of ninety (90) days from the date of |
| purchase. If an implied warranty or condition is created by Your |
| state/jurisdiction and federal or state/provincial law prohibits disclaimer of |
| it, You also have an implied warranty or condition, BUT ONLY AS TO DEFECTS FOR |
| WHICH CLAIMS ARE MADE WITHIN NINETY (90) DAYS FROM THE DATE OF PURCHASE. AS TO |
| ANY DEFECTS DISCOVERED FOR WHICH A CLAIM IS NOT MADE WITHIN THE NINETY-DAY |
| PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. |
| Some states/jurisdictions do not allow limitations on how long an implied |
| warranty or condition lasts, so the above limitation may not apply to You. |
| |
| DISCLAIMER. The Limited Warranty that appears above is the only |
| express warranty made to You and is provided in lieu of any other express |
| warranties or implied warrantees (if any) created by any documentation, |
| packaging or otherwise. EXCEPT FOR THE LIMITED WARRANTY, AND TO THE MAXIMUM |
| EXTENT PERMITTED BY APPLICABLE LAW, HP AND ITS SUPPLIERS PROVIDE THE PRODUCT |
| AND SUPPORT SERVICES (IF ANY) "AS IS" AND WITH ALL FAULTS, AND HEREBY DISCLAIM |
| ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, |
| INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES, DUTIES OR |
| CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, |
| SATISFACTORY QUALITY, NON-INFRINGEMENT OF TITLE, OF ACCURACY OR COMPLETENESS |
| OF RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF VIRUSES, AND OF |
| LACK OF NEGLIGENCE, ALL WITH REGARD TO THE PRODUCT, AND THE PROVISIONS OF OR |
| FAILURE TO PROVIDE SUPPORT SERVICES. ALSO, THERE IS NO WARRANTY OR CONDITION |
| OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, |
| OR NON-INFRINGEMENT WITH REGARD TO THE PRODUCT. |
| |
| 19. LIMITATION OF LIABILITY. |
| |
| a. FOR ALL SOFTWARE WHETHER OR NOT AN ACTIVATION KEY IS REQUIRED |
| |
| EXCEPT TO THE EXTENT PROHIBITED BY LOCAL LAW, IN NO EVENT WILL HP OR ITS |
| SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUPPLIERS |
| BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, |
| OR OTHER DAMAGES (INCLUDING LOST PROFIT, LOST DATA, OR DOWNTIME COSTS) ARISING |
| OUT OF THE USE, THE INABILITY TO USE, OR THE RESULTS OF USE OF THE PRODUCT, |
| WHETHER BASED IN WARRANTY, CONTRACT, TORT OR OTHER LEGAL THEORY, AND WHETHER |
| OR NOT HP WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PRODUCT IS NOT |
| DESIGNED, MANUFACTURED OR INTENDED FOR USE IN THE PLANNING, CONSTRUCTION, |
| MAINTENANCE, OR OPERATION OF A NUCLEAR FACILITY, AIRCRAFT NAVIGATION OR |
| AIRCRAFT COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT MACHINES, |
| OR WEAPONS SYSTEMS (COLLECTIVELY "HIGH RISK APPLICATIONS"). YOU ARE SOLELY |
| LIABLE IF THE PRODUCT IS USED FOR HIGH RISK APPLICATIONS, AND YOU SHALL |
| INDEMNIFY, DEFEND AND HOLD HP HARMLESS FROM ALL LOSS, DAMAGE, EXPENSE OR |
| LIABILITY IN CONNECTION WITH SUCH USE. YOU ASSUME THE ENTIRE RISK AS TO YOUR |
| USE OF THE PRODUCT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR |
| LIMITATION OF LIABILITY FOR INCIDENTIAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE |
| LIMITATION MAY NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY SUCH LOCAL LAWS. |
| |
| b. FOR SOFTWARE REQUIRING AN ACTIVATION KEY |
| |
| 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 HP and any of its suppliers under |
| any provision of this EULA and Your exclusive remedy for all of the foregoing |
| (except for any remedy of repair or replacement if elected by HP with respect |
| to any breach of the Limited Warranty) shall be limited to the greater of the |
| amount actually paid by You for the Product or U.S. $5.00. The foregoing |
| limitations, exclusions and disclaimers (including Warranty above) shall apply |
| to the maximum extent permitted by applicable law, even if any remedy fails of |
| its essential purpose. |
| |
| REV08/51/03 End User License Agreement |