"CLICK-WRAP" OR "CLICK-TO-PROCEED" END-USER AGREEMENT 

END-USER LICENSE AGREEMENT FOR SQLBASE

IMPORTANT - READ CAREFULLY:  This Gupta Technologies End-User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and Gupta Technologies, LLC ("GUPTA") for the GUPTA software product(s)specified above, which include(s) computer software and may include "online" or electronic documentation, associated media, and printed materials ("Product").  An amendment or addendum to this EULA may accompany the Product.  BY CLICKING THE "I ACCEPT ALL TERMS OF THE LICENSE AGREEMENT" ICON BELOW OR BY INSTALLING, COPYING, OR OTHERWISE USING THE PRODUCT or any Update(s) (as defined below), YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY AND TERMINATION PROVISIONS BELOW.  IF YOU DO NOT AGREE WITH ALL OF THIS EULA, CLICK THE "I DO NOT ACCEPT THE TERMS OF THIS LICENSE AGREEMENT" BUTTON TO TERMINATE THIS PROCESS THEN PROMPTLY RETURN THE UNUSED PRODUCT TO THE PARTY (EITHER GUPTA OR ITS SUPPLIER) FROM WHOM YOU ACQUIRED IT TO RECEIVE A REFUND OF THE AMOUNT YOU PAID.  

LICENSE AGREEMENT

If you are a new customer and you have signed a license agreement, then the terms of the signed license agreement shall take precedence over this EULA.  If you are a new customer and you have not signed a license agreement, then this EULA shall govern your use of the Product for the number of licenses specified in your Purchase Order or other written documentation from GUPTA (or its supplier). 

LICENSE TERMS	

1.  GRANT OF LICENSE.  Following your acceptance of this EULA, and provided you comply with its terms and conditions, GUPTA grants you a nonexclusive license to use the Product.  "Server Components" (which are specifically noted as such by GUPTA on the CD labels or other enclosed materials) may be used on a single computer only (on which only one instance of SQLBase is allowed to run at any one time) which may be accessed by a network of computers, excluding Internet environments, for internal use by you.  SQLBase client runtime use is limited to the number of Product licenses purchased by you for use by the number of client connections specified on the Label."  As defined herein, a "Seat" is a copy of the Product, or any component thereof, installed on a single client-side machine.  A "Server" is the server component that resides on a single Server machine and has the capability to accept connections from one or more Seats residing on client machines.  Use includes the right to install and execute the Product as provided for in the Product user documentation.  Each such license is granted in consideration for your payment of the license fees set forth on the Purchase Order (or other purchase document accepted by GUPTA or its supplier) and for the other commitments set forth in this EULA.  If you acquire this Product as an update or other component of the Product that you receive separately as part of the Product ("Update"), your authorization to use the previous versions of the Product is terminated.  You will ensure that anyone who uses the Product does so only in compliance with the terms of this EULA.  Certain other terms regarding the use of specific Products are set forth under subsections (a), (b), (c), and (d) below.

(a)	Developer's Edition. If the Product is designated on the Label as "Developers Edition," your use of the Product is restricted to support the development of your application(s) ("Application(s)").  You may not use the "Developers Edition" Product for production, sale, or distribution without a specific agreement with GUPTA to do so.  Contact sales@guptaworldwide.com for further information.   

(b)  	SQLBase for Web Applications.  If the Product is designated on the Label as "SQLBase for Web Applications," you may install the Product and use only one instance of the Product on a single computer at any one time in an Internet environment (where unlimited clients can access the Product through a web browser). The SQLBase for Web Applications Product may not be downloaded, copied, transferred, or used for production, sale, or distribution 

(c)	"Not For Resale" Product Evaluation License.  If the Product is designated on the Label as "Not For Resale" or "NFR" ("NFR Product"), it may not be resold, transferred, copied, distributed or used for any purpose other than demonstration, test, or evaluation.  You may install the NFR Product on one (1) personal computer so that you and others in your organization can evaluate it for up to thirty (30) days after shipment ("Evaluation Period").  At the end of this Evaluation Period, you must delete the software from all computers and storage media and destroy the NFR Product.

(d)	Unauthorized Use.  You may make a reasonable number of copies of the Product solely for backup, archival or disaster recovery purposes.  You may not otherwise use or copy, nor permit the use or copying of, the Product.  You may not sublicense the rights granted herein. You may not reverse engineer, disassemble, or decompile the Product, except to the extent required to obtain interoperability with other independently created software programs to the extent expressly permitted by applicable law, and then only after you have notified GUPTA in writing of your intended activities. You may not use the Product for commercial time-sharing or service bureau use, or otherwise rent, lease, or lend the Product.  

2.  TRANSFER - TO THIRD PARTY. The initial user of the Product may make a one-time transfer of the Product to another end user. The transfer has to include all component parts, media, printed materials, and this EULA. The transfer may not be an indirect transfer, such as a consignment. Prior to the transfer, the end user receiving the transferred Product must agree to all the EULA terms, and you must provide GUPTA with written notice of transfer, setting forth the name and address of the transferee, as well as confirmation that the terms of this EULA are expressly accepted by the transferee.  The transfer of your license rights and obligations terminates your authorization to use the Product under the documentation evidencing your proof of license(s).  NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, YOU MAY NOT TRANSFER THE PRODUCT, EITHER DIRECTLY OR INDIRECTLY, INTO ANY COUNTRY WHERE THERE IS A US EMBARGO OR PROHIBITION ON THE EXPORTING OR RE-EXPORTING OF GOODS INTO, OR FROM THE US.

3. NO TECHNICAL SUPPORT.  GUPTA is not obligated to provide technical support, phone support, Updates or upgrades to you for the Product licensed under this EULA.  Technical support may be purchased separately from an authorized GUPTA supplier, or directly from GUPTA. 

4. CHARGES AND TAXES.  Charges for licensed rights and authorization to use the Products are based on extent of the actual use authorized. If you wish to increase the extent of use or number of licenses or sites, notify GUPTA or its supplier and pay any applicable charges no later than net thirty (30) days of GUPTA's invoice date. GUPTA does not give refunds or credits for charges already due or paid.  In the event that any authority imposes a duty, tax, levy or fee, excluding those based on GUPTA's net income, upon the Product supplied by GUPTA under this EULA, then you agree to pay that amount as GUPTA specifies or supply exemption documentation.  You will obtain all approvals and/or registrations necessary for the purchase and remittance of foreign exchange needed to discharge its obligations under this EULA.  All prices for any Product will be F.O.B. point of origin and you will reimburse GUPTA for any shipping expenses incurred under this EULA.

5.  CERTIFICATION.  GUPTA may from time to time request that you certify in writing that your use of the Products is in compliance with this Agreement. In addition, GUPTA may, upon reasonable notice, perform an audit to determine such compliance.  If the number of copies or users is found to be greater than that authorized by GUPTA, GUPTA may charge you the applicable list prices therefor, together with the cost of performing such audit.  These charges shall be in addition to all other remedies available to GUPTA.
 
6.  GUPTA'S RESERVATION OF RIGHTS AND REMEDIES.  In addition to any specific right or remedy provided for in this EULA, GUPTA reserves all other rights and remedies available at law or equity.

7. TERMINATION.  Without prejudice to any other rights, GUPTA may terminate this EULA if you fail to comply with the terms and conditions of this EULA.  In the event of termination, you must destroy the Product, together with all copies, modifications, and merged portions in any form and furnish an affidavit of destruction to GUPTA.  Termination of this EULA will not entitle you to any refund or discharge you of payment obligations accrued as of the date of termination, even if such obligation is payable after the termination date.  The following provisions will survive any termination of this EULA:  1(d), 2 through 8, 10 through 17, and any other provision whose continuance is necessary to achieve its essential purpose.

8.  LIMITED WARRANTY.  GUPTA warrants to you that each Product as delivered by GUPTA will operate substantially in accordance with the associated user documentation for a period of ninety (90) days from the date of shipment of such Product by GUPTA or its supplier (the "Warranty Period") provided you observe the operating, security and data-control procedures set forth in the user documentation. Your sole and exclusive remedy for a breach of the foregoing warranty shall be limited, at GUPTA's option, to either (a) the repair or replacement of the defective Product, or (b) a refund of the license fee paid for such Product.  In the event of a refund hereunder, your license to use the Product shall terminate and you shall be required to de-install the software and return the Product to GUPTA.  Such remedy shall be available only if GUPTA is notified in writing within the Warranty Period. Warranties for third party products may vary.  THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

9.  INFRINGEMENT INDEMNITY BY GUPTA.  GUPTA shall indemnify, defend, or at its option settle, any claim or suit against you based on a claim that a Product infringes any United States patent, copyright, trademark or trade secret and GUPTA shall pay any final judgment entered against you in any such proceeding; provided (a) GUPTA is promptly notified in writing of such claim or suit, (b) GUPTA or its designee has sole control of such defense and/or settlement, and (c) you give all information and assistance requested by GUPTA or such designee.  To the extent that use of a Product is enjoined, GUPTA may at its option either (i) procure for you the right to use the Product, (ii) replace the Product with other suitable products, or (iii) refund the license fee paid by you for the Product or the affected part thereof, less reasonable amortization.  GUPTA shall have no liability under this provision or otherwise to the extent a claim or suit is based upon (a) use of the Product in combination with software or hardware not specified by GUPTA if infringement would have been avoided in the absence of such combination, (b) modifications to the Product not made by GUPTA, if infringement would have been avoided by the absence of such modifications, (c) your use of any version other than a current release of the Product, if infringement would have been avoided by use of a current release; or (d) a third party product.

10.  LIMITATION OF LIABILITY.  Circumstances may arise where, because of a default on GUPTA's part or other liability, you are entitled to recover damages from GUPTA. In each such instance, regardless of the basis on which you may be entitled to claim damages from GUPTA, (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), GUPTA is liable for no more than: (1) damages for bodily injury (including death) and damage to real property and tangible personal property; and (2) the amount of any other actual direct damages up to the greater of $1,000.00 U.S. or the charges for the Product that is the subject of the claim. The foregoing limitations, exclusions and disclaimers (including but not limited to Section 8 above) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.  GUPTA will not be liable for loss of, or damage to, your records or data; and/or for any damages claimed by you based on any third party claim.  This limitation of liability also applies to any developer of a Product supplied to GUPTA. It is the maximum for which GUPTA and its suppliers are collectively responsible.

EXCLUDING LIABILITY DIRECTLY RELATED TO GUPTA'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL GUPTA OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING ANY LOST PROFITS OR LOST SAVINGS, EVEN IF A GUPTA REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY.

Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, or the exclusion of implied warranties or limitations on how long a given warranty may last, so the above limitations may not apply to you.

11.  CONTROLLING LAW AND SEVERABILITY.  This EULA constitutes the entire agreement between you and GUPTA with reference to this transaction.  If you acquired this Product in North America or Latin America, this EULA will be governed by the laws of the State of California, USA (as permitted by Section 1646.5 of the California Civil Code or any similar successor provision), except for that body dealing with conflicts of law.  If you acquired this Product outside North America and Latin America, then the local law may apply.  The application to this EULA of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded.  In the event of any dispute involving this EULA, GUPTA and you each consent to exclusive jurisdiction and venue in either the State or federal courts in the State of California, and agree that the prevailing party shall be entitled to its reasonable attorney fees and costs. In the event any provision of this EULA shall be deemed unenforceable, void or invalid, such provision shall be modified so as to make it valid and enforceable, and as so modified, the entire EULA shall remain in full force and effect.  No decision, action or inaction by GUPTA shall be construed to be a waiver of any rights or remedies available to it.

12.  INTERNATIONAL ARBITRATION.  If you are located outside of the United States, this EULA will be enforceable in arbitral proceedings under the Rules of Conciliation and Arbitration of the International Chamber of Commerce, and the number of arbitrators shall be three (3).  Each of the "Claimants" and "Respondents" (as such terms are defined in the Rules of Conciliation and Arbitration of the International Chamber of Commerce) shall designate one (1) arbitrator at the time such Claimant(s) serve(s) its or their (as the case may be) arbitration demand and the Respondents shall name one arbitrator within fifteen (15) days of notice of the identity of the arbitrator appointed by the Claimants. The two jointly appointed arbitrators shall jointly designate the third arbitrator. If such designation is not made within fifteen (15) days of the appointment of the first two (2) arbitrators, the Secretary General of the International Court of Arbitration of the International Chamber of Commerce shall designate the third arbitrator. The proceedings shall be conducted in the English language in New York, N.Y., U.S.A.

13.  EXPORT RESTRICTIONS.  You acknowledge that the Product is of U.S. origin. You hereby acknowledge that the Products, in particular without limitation the encryption technology contained in certain Products, and all technical data pertaining to those Products, are subject to export controls under the laws and regulations of the United States, including the Export Administration Regulations, 15 C.F.R.  Parts 730-774.  You shall not export, reexport, transfer or divert any of the Products, and technical data pertaining to such Products, or any direct product thereof to any destination, end-use or end-user that is prohibited or restricted under such United States export control laws and regulations, except as specifically authorized by the United States Department of Commerce.  Your obligations under this Section 13 shall survive the expiration or termination of this EULA, and your licenses hereunder.  You warrant and represent that neither the BXA nor any other U.S. federal agency has suspended, revoked, or denied your export privileges. For additional information, see the U.S.  Export Administration Regulations, and answers to questions about them, at http://www.bxa.doc.gov.  

PROPRIETARY RIGHTS

14. OWNERSHIP OF THE SOFTWARE PRODUCT.  The Product is protected by copyright and other intellectual property laws and treaties. GUPTA owns the title, copyright, and other intellectual property rights in the Product.  You are granted the limited rights specified in this EULA only with respect to the object code version of the Product, unless GUPTA makes the Product available to in source code form under a separate written license.  The Product is licensed, not sold.

15.  NONDISCLOSURE.  You agree to hold the Products, all techniques, concepts and methods relating thereto and all information identified by GUPTA as proprietary or confidential in confidence and not to disclose it to any third party, except to those of your employees who must have access to the Products to use the Products in accordance with the terms of this EULA. You may not disclose the results of performance/benchmark tests run on the Product without the prior written consent of GUPTA. 

16. U.S. GOVERNMENT RESTRICTED RIGHTS.  For US Government users, all Products are provided with RESTRICTED RIGHTS.  As provided in FAR 12.212, use, duplication or disclosure of the Products is governed by, and subject to, this EULA.  If, for any reason, FAR  12.212 is not applicable, use, duplication and disclosure of the Products is subject to the Commercial Computer Software Restricted Rights clause, FAR 52.227.19(c), or the Rights in Computer Software clause, DFARS 252.227-7202-3, as applicable.  Manufacturer for such purpose is GUPTA TECHNOLOGIES, LLC, 975 Island Drive, Redwood Shores, CA 94065, USA.

ENTIRE AGREEMENT

17.  This EULA, including any addendum or amendment to this EULA included with the Product, are the entire agreement between you and GUPTA relating to the Product and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Product or any other subject matter covered by this EULA; provided that if you and GUPTA have executed a written Software License Agreement ("SLA") or similar agreement regarding the subject matter hereof and such SLA or similar agreement, by its terms, overrides this EULA, then the terms of such SLA or similar agreement will govern the relationship set forth herein in the event of a conflict.  It is expressly agreed that the terms of this EULA supersede any Purchase Order or other ordering document.  The terms of this EULA may not be amended or modified except in a writing executed by an authorized representative of each party.  In the event that any provision of this EULA is held to be invalid or is waived, all other provisions of this EULA will be deemed severable and enforced.  The original of this EULA has been written in English.  The parties waive any right or claim to have this EULA translated into any other language, and to the extent that such right cannot be waived by applicable law, then such party expressly agrees not to enforce such right of translation.

(c) 2003 Gupta Technologies, LLC.  All rights reserved.