License agreement for SSH Secure Shell SSH Communications Security Corp SSH(R) Secure Shell(TM) License Agreement SSH COMMUNICATIONS SECURITY CORP ("SSH") IS WILLING TO LICENSE THE SSH SECURE SHELL 1.2 SOFTWARE AND ACCOMPANYING DOCUMENTATION (COLLECTIVELY, "SOFTWARE") ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS LICENSE AGREEMENT ("AGREEMENT"). PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SOFTWARE. BY USING THE SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, SSH IS UNWILLING TO LICENSE THE SOFTWARE TO YOU ("YOU"), AND DO NOT INSTALL OR USE THE SOFTWARE. GRANT OF LICENSE You may use the Software only under one of the following three types of licenses: (1) an Evaluation for Commercial Use License, (2) a Commercial Use License, or (3) a Non-Commercial Use License. Each license is described further below. 1. EVALUATION FOR COMMERCIAL USE LICENSE Subject to the terms and conditions contained herein and for a period not to exceed thirty (30) days from the date on which You first start using the Software ("Evaluation Period"), SSH hereby grants to You, an end user, a non-transferable, non-exclusive, non-sublicensable license, free of charge, to install and use the Software for the sole purpose of internally evaluating the Software for potential commercial uses. Any use beyond the Evaluation Period requires payment of license fee(s), unless such use falls under the Non-Commercial Use License as described below. You agree that on or before the end of the Evaluation Period, You will either pay the required license fee(s) for a Commercial Use License, or cease using the Software and remove it from your computers. 2. COMMERCIAL USE LICENSE Subject to the terms and conditions contained herein and provided You have paid the required license fee(s), SSH hereby grants to You, an end user, a non-transferable, non-exclusive, non-sublicensable license to install and use the Software for internal commercial purposes only on the number of computers paid for by You. In order to pay the license fee(s) required under this Agreement, You must pay SSH the appropriate license fee(s) for the Software in a manner acceptable to SSH, or send to SSH a valid purchase order along with the appropriate license fee(s). 3. NON-COMMERCIAL USE LICENSE Subject to the terms and conditions contained herein and provided that you are a student, faculty member, researcher, employee or administrator at university, other accredited non-profit educational or university-affiliated research institution, or charitable organization, SSH hereby grants to You, an end user, a personal, non-transferable, non-exclusive, non-sublicensable license to install and use the Software, free of charge, for non-commercial or charitable purposes only. Further, subject to the terms and conditions contained herein and provided that your are an individual, SSH hereby grants to You, an end user, a personal, non-transferable, non-exclusive, non-sublicensable license to install and use the Software for recreational and hobby purposes only. For the avoidance of doubt, the following are considered examples of commercial uses of the Software: (1) use at or for a commercial enterprise; (2) use for financial gain, personal or otherwise; (3) use by government agencies; (4) use by a telecommunication or Internet service provider company; (5) use at home or while traveling for work for which You will be paid; (6) use in connection with administering a commercial web site; (7) use in connection with the provision of professional services for which You are compensated (including paid system administration); and (8) bundling or integrating the Software with another product for commercial purposes. SSH and/or its licensors reserve all rights not expressly granted to you herein. This license is not a sale of the Software or any copy of the Software. The Software contains valuable trade secrets of SSH and its licensors. All worldwide ownership of and all rights, titles and interests in and to the Software, and all copies and portions of the Software, including without limitation, all intellectual property rights therein and thereto, are and will remain exclusively with SSH. The Software is protected, among other ways, by the copyright laws of the United States and international copyright treaties. All rights not expressly granted herein are retained by SSH and its licensors. USE RESTRICTIONS You may not: (i) use the Software, except under the terms listed above; (ii) modify, translate, reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or discover the source code of the Software (except to the extent applicable laws specifically prohibit such restriction); (iii) create derivative works based on the Software; (iv) copy the Software (except for emergency or back-up purposes); (v) rent, lease, sublicense, convey, distribute or otherwise transfer rights to the Software; or (vi) remove any product identification, copyright, proprietary notices or labels from the Software. If You are a licensee under the Non-Commercial User License, or the Evaluation for Commercial Use License, You may make a single copy the Software for back-up purposes, provided such copy contains all of the original Software's copyright, trademark and other proprietary notices and marks. If You are a licensee under the Commercial User License, You may make only the number of copies of the Software paid for by You plus a single additional copy for back-up purposes, provided any and all copies must contain all of the original Software's copyright, trademark and other proprietary notices and marks. MAINTENANCE, SUPPORT AND UPDATES SSH is under no obligation to maintain or support or update the Software in any way, or to provide updates or error corrections. CONFIDENTIALITY The Software is confidential and proprietary information of SSH. You agree to take adequate steps to protect the Software and any license authorization codes from unauthorized disclosure or use. WARRANTY SSH EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, AND ANY WARRANTY THAT MAY ARISE BY REASON OF TRADE USAGE, CUSTOM, OR COURSE OF DEALING. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT THE SOFTWARE IS PROVIDED "AS IS" AND THAT SSH DOES NOT WARRANT THE SOFTWARE WILL RUN UNINTERRUPTED OR ERROR FREE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU, AND YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE. LIMITED LIABILITY THE ENTIRE RISK AS TO RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY YOU. UNDER NO CIRCUMSTANCES WILL SSH OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATED TO THE SOFTWARE OR THIS AGREEMENT, EVEN IF SSH OR ITS LICENSORS HAVE BEEN ADVISED ON THE POSSIBILITY OF SUCH DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS AGREEMENT. SUCH LIMITATION ON DAMAGES INCLUDES, BUT IS NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOSS OF DATA OR SOFTWARE, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR IMPAIRMENT OF OTHER GOODS. IN NO EVENT WILL SSH OR ITS LICENSORS BE LIABLE FOR THE COSTS OF PROCUREMENT OF SUBSTITUTE SOFTWARE OR SERVICES. IN ADDITION, IN NO EVENT WILL THE TOTAL LIABILITY OF SSH IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE EXCEED THE ACTUAL AMOUNT PAID TO SSH FOR THE SOFTWARE GIVING RISE TO THE CLAIM. YOU ACKNOWLEDGE THAT THIS SOFTWARE IS NOT DESIGNED OR LICENSED FOR USE IN ON-LINE EQUIPMENT IN HAZARDOUS ENVIRONMENTS SUCH AS OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR CONTROL, OR LIFE-CRITICAL APPLICATIONS. SSH EXPRESSLY DISCLAIMS ANY LIABILITY RESULTING FROM USE OF THE SOFTWARE IN ANY SUCH ON-LINE EQUIPMENT IN HAZARDOUS ENVIRONMENTS AND ACCEPTS NO LIABILITY IN RESPECT OF ANY ACTIONS OR CLAIMS BASED ON THE USE OF THE SOFTWARE IN ANY SUCH ON-LINE EQUIPMENT IN HAZARDOUS ENVIRONMENTS BY YOU. FOR PURPOSES OF THIS PARAGRAPH, THE TERM "LIFE-CRITICAL APPLICATION" MEANS AN APPLICATION IN WHICH THE FUNCTIONING OR MALFUNCTIONING OF THE SOFTWARE MAY RESULT DIRECTLY OR INDIRECTLY IN PHYSICAL INJURY OR LOSS OF HUMAN LIFE. TERMINATION This Agreement will terminate immediately and automatically without notice if You breach any provision in this Agreement. Upon termination You will remove all copies of the Software or any part of the Software from any and all computer storage devices and destroy the Software. At SSH's request, You or your authorized signatory, will certify in writing to SSH that all complete and partial copies of the Software have been destroyed and that none remain in your possession or under your control. The provisions of this Agreement, except for the license grant and warranty, will survive termination. U.S. GOVERNMENT RIGHTS If You use the Software by or for any unit or agency of the United States Government, this provision applies. The Software shall be classified as "commercial computer software", as that term is defined in the Federal Acquisition Regulation (the "FAR") and its supplements. SSH represents that the Software was developed entirely at private expense, that no part of the Software was first produced in the performance of a Government contract, and that no part of the Software is in the public domain. (1) If the Software is supplied for use by DoD, the Software is delivered subject to the terms of this license agreement and either (i) in accordance with DFARS 227.7202-1(a) and 227.7202-3(a), or (ii) with restricted rights in accordance with DFARS 252.227-7013(c)(1)(ii) (OCT 1988), as applicable. (2) If the Software is supplied for use by a Federal agency other than DoD, the Software is restricted computer software delivered subject to the terms of this license agreement and (i) FAR 12.212(a); (ii) FAR 52.227-19; or (iii) FAR 52.227-14(ALT III), as applicable. RESTRICTED RIGHTS Use, duplication, or disclosure by the U.S. Government is subject to restrictions set forth in this agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. SSH Communications Security, Inc., 650 Castro Street, Mountain View, California 94041, USA. EXPORT LAW You acknowledge and agree that the Software may be subject to restrictions and controls imposed by the United States Export Administration Act (the "Act") and the regulations thereunder. You agree and certify that neither the Software nor any direct product thereof is being or will be acquired, shipped, transferred, or reexported, directly or indirectly, into any country, except pursuant to an export control license under the Act and the regulations thereunder, or will be used for any purpose prohibited by the same. By using the Software, You are acknowledging and agreeing to the foregoing, and You are representing and warranting that You will comply with all of the United States and other applicable country laws and regulations when either exporting or re-exporting or importing the Software or any underlying information technology. Further, You represent and warrant that You are not a national of Cuba, Iran, Iraq, Libya, North Korea, Sudan or Syria or a party listed in the U.S. Table of Denial Orders or U.S. Treasury Department's list of Specially Designated Nationals. GOVERNING LAW This Agreement is governed by the laws of the State of California without regard to conflict of laws rules and principles. Application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. MISCELLANEOUS If any provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the legality, validity and enforceability of all other provisions of this Agreement shall not be affected thereby. No delay or failure by either party to exercise or enforce at any time any right or provision hereof shall be considered a waiver thereof or of such party's right thereafter to exercise or enforce each and every right and provision of this Agreement. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. You may not assign this Agreement in whole or in part, without SSH's prior written consent. Any attempt to assign this Agreement without such consent will be null and void. This Agreement is the complete and exclusive statement between You and SSH relating to the subject matter hereof and supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and understandings of the parties, if any. In the case of any conflict between the terms of this Agreement and the provisions of any purchase order for the Software, the terms of this Agreement shall control.