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END-USER LICENSE AGREEMENT
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for
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UPEK, INC. SDK SOFTWARE PRODUCTS
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IMPORTANT, PLEASE READ CAREFULLY
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YOU MAY NOT INSTALL OR USE THIS UPEK SOFTWARE PRODUCT UNLESS YOU HAVE
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CAREFULLY READ THE TERMS AND CONDITIONS SET FORTH BELOW AND INDICATE
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YOUR ACCEPTANCE OF SUCH TERMS AND CONDITIONS BY CLICKING ON THE "I
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ACCEPT" BUTTON AT THE END OF THIS SCREEN.
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This End-User License Agreement ("EULA") represents the understanding
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between UPEK, Inc. and its successors and assigns ("UPEK") and you
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(either an individual person or a single legal entity, referred to in
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this EULA as "You" or "Your") and governs the use of the UPEK software
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product that accompanies this EULA, including any associated media,
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printed materials and electronic documentation (the "Software
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Product"), except to the extent a particular program is the subject of
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a separate written agreement with UPEK. The Software Product may also
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include any software updates, add-on components, stencils, templates,
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shapes, symbols, web services and/or supplements that UPEK may provide
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to You or make available to You, or that You obtain from the use of
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features or functionality of the Software Product, after the date You
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obtain Your initial copy of the Software Product (whether by delivery
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of a CD, permitted downloading from the Internet or a dedicated web
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site, or otherwise), to the extent that such items are not accompanied
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by a separate license agreement or terms of use.
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BY INSTALLING OR USING THE SOFTWARE PRODUCT, YOU ARE CONSENTING TO BE
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BOUND BY THIS EULA. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND
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CONDITIONS OF THIS EULA, THEN (A) DO NOT INSTALL OR USE THE SOFTWARE
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PRODUCT, AND (B) YOU MAY RETURN THE SOFTWARE PRODUCT TO THE PERSON WHO
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PROVIDED IT TO YOU FOR A FULL REFUND. Should You have any questions
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concerning this EULA, or if You desire to contact UPEK for any reason,
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please contact the UPEK subsidiary serving Your country/region.
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1. GRANT OF LICENSE. Subject to the terms and conditions of this EULA
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and Your payment of all applicable fees for the Software Product, UPEK
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and its suppliers hereby grant to You, and You hereby accept a
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nonexclusive license to install and use copies of the Software
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Product, on a device, workstation, terminal, PC peripheral or other
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digital, electronic or analog device embedding a UPEK fingerprint
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sensor (a "UPEK-Enabled Device"), for the purpose of designing,
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creating testing, and distributing Your software product(s). If this
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Software Product contains documentation that is provided only in
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electronic form, You may print one copy of such electronic
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documentation; provided, however, that You may not copy the printed
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materials accompanying the Software Product.
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2. ADDITIONAL LICENSE RIGHTS - REDISTRIBUTABLE CODE. In addition to
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the rights granted in section 1, certain portions of the product are
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redistributable by You as part of Your copyrighted software
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application. These additional license rights are conditioned upon your
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compliance with the distribution requirements and license restrictions
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described in Section 3.
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2.1 Sample Code. UPEK grants you the right to use and modify the
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source code version of those portions of the Product identified as
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"Samples" in REDISTRIBUTABLES.TXT or elsewhere in the Product ("Sample
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Code") for the sole purposes of designing, developing, testing and
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distributing your software product(s), and to reproduce and distribute
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the Sample Code, along with any modifications thereof, in object
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and/or source code form. For applicable redistribution requirements
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for Sample Code, see Section 3.1 below.
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2.2 Redistributable Object-Code. UPEK grants you a nonexclusive right
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to reproduce and distribute the object code of any portion of the
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Product listed in REDISTRIBUTABLES.TXT ("Redistributable Code"). For
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applicable redistribution requirements for Redistributable Code, see
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Section 3.1, below.
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3. LICENSE RESTRICTIONS -- DISTRIBUTION REQUIREMENTS. If you choose to
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exercise your rights under Section 2, any redistribution by you
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requires compliance with the following terms, as appropriate.
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3.1 Redistributable Code-Standard.
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(a) If you are authorized and choose to redistribute Sample Code
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and/or Redistributable Object- Code, as described in Section 2, you
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agree: (i) except as otherwise noted in Section 2.1 (Sample Code), to
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distribute the Redistributables only in object code form and in
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conjunction with and as a part of a copyrighted software application
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product developed by you that adds significant and primary
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functionality to the Redistributables ("Licensed Product"); (ii) to
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display your own valid copyright notice which shall be sufficient to
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protect UPEK's copyright in the Product; (iii) not to remove or
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obscure any copyright, trademark or patent notices that appear on the
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Product as delivered to you; (iv) to indemnify, hold harmless, and
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defend UPEK from and against any claims or lawsuits, including
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attorney's fees, that arise or result from the use or distribution of
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the Licensed Product; (v) otherwise comply with the terms of this
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EULA; and (vi) agree that UPEK reserves all rights not expressly
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granted.
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(b) You also agree not to permit further distribution of the
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Redistributables by your end users except: (1) you may permit further
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redistribution of the Redistributables by your distributors to your
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end-user customers if your distributors only distribute the
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Redistributables in conjunction with, and as part of, the Licensed
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Product and You and Your distributors comply with all other terms of
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this EULA.
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4. RESERVATION OF RIGHTS; RESTRICTIONS. All rights not expressly
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granted by UPEK in this EULA are reserved. Except as otherwise
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expressly provided under this EULA, You shall not, and shall not allow
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any third party to:
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(a) transfer, assign, sublicense, resell, re-license or provide,
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lease, lend or allow access to the Software Product to any other
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person or entity, except as otherwise provided herein;
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(b) make error corrections or create derivative works based upon the
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Software Product;
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(c) copy (except to make a single back-up copy to replace an unusable
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copy of the Software Product), modify, prepare derivative works based
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upon, decompile, decrypt, reverse engineer or attempt to reconstruct
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or discover any source code or underlying ideas or algorithms of the
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Software Product by any means whatsoever (except to the extent
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applicable laws specifically prohibit such restriction), disassemble
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or otherwise reduce the Software Product to human-readable form to
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gain access to trade secrets or confidential information in the
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Software Product;
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(d) use the Software Product for timesharing, hosting or service
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bureau purposes; or
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(e) remove, obscure, or alter UPEK's (or its third party licensors')
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copyright notices, trademarks, or other proprietary rights notices
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affixed to or contained within the Software Product (and any copies
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thereof, including the back-up copy) or use such notices, trademarks
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or service marks for any other purpose.
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You understand and agree that (i) the Software Product is licensed to
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You and not sold, (ii) your license to the individual components of
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the Software Product is limited to use of the Software Product as a
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whole, and You may not use or seek to use software code incorporated
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therein on a stand-alone basis, and (iii) the individual components of
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the Software Product may not be separated for use on more than one
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UPEK- Enabled Device, unless expressly permitted by this EULA. UPEK
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retains title to all copies of the Software Product and all associated
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intellectual property rights therein, and any and all documentation
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thereof.
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5. PROPRIETARY NOTICES; TRADEMARKS. You agree to maintain and
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reproduce all copyright and other proprietary notices on all copies,
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in any form, of the Software Product in the same form and manner that
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such copyright and other proprietary notices are included on the
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Software Product, including on any back-up copy of the Software
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Product. This EULA does not grant You any rights in connection with
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any trademarks or service marks of UPEK.
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6. SUPPORT SERVICES. UPEK may provide You with support services
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related to the Software Product ("Support Services"). Use of Support
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Services, if any, is governed by the UPEK policies and terms described
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in other UPEK-provided materials. Any supplemental software code
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provided to You as part of the Support Services is considered part of
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the Software Product and subject to the terms and conditions of this
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EULA.
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7. LIMITED WARRANTY.
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(a) UPEK warrants that during the "Warranty Period" (as defined
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below): (i) the media on which the Software Product is furnished, if
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any, will be free of defects in materials and workmanship under normal
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use; and (ii) the Software Product will substantially conform to its
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published specifications (the "Limited Warranty"). The "Warranty
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Period" means a period beginning on the date of Your receipt of the
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Software Product, as applicable, and ending on the later of (i) thirty
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(30) days from the date of delivery of such Software Product, as
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applicable, or (ii) the end of the minimum period required by the law
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of the applicable jurisdiction. The Limited Warranty extends only to
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You as the original licensee. This Limited Warranty does not cover
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anything caused by accident or abuse or by use of the Software Product
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other than for its reasonably intended purposes and as recommended in
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the accompanying user documentation. Updates are covered by this
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warranty only if provided to You during the Warranty Period. Your sole
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and exclusive remedy and the entire liability of UPEK and its
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suppliers under this Limited Warranty will be, at UPEK's option, to
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repair, replace, or refund the purchase price for the Software Product
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that is returned to UPEK, as applicable, provided that you report the
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defects to UPEK or its designee within the Warranty Period. Any breach
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of the Limited Warranty related to an error or defect in the media
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containing the Software Product shall be remedied solely with the
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replacement of the media containing the Software Product. You shall
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pay shipping or freight charges, including, without limitation,
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obtaining full value replacement insurance, for any returns, whether
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for repair, replacement, or refund, to UPEK or its designee.
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(b) This warranty does not apply if the Software Product (i) is
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licensed for beta, evaluation, testing, demonstration or other
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purposes for which UPEK does not receive a license fee, (ii) has been
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altered, except by UPEK, (iii) has not been installed, operated,
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repaired, or maintained by UPEK or in accordance with instructions
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supplied by UPEK, (iv) has been subjected to abnormal physical or
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electrical stress, misuse, negligence, or accident, or (v) is used in
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ultrahazardous activities.
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8. DISCLAIMER OF WARRANTIES.
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(a) EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7, UPEK AND
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ITS SUPPLIERS PROVIDE THE SOFTWARE PRODUCT AND SUPPORT SERVICES (IF
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ANY) TO YOU "AS IS," AND YOUR USE IS AT YOUR OWN RISK. UPEK DOES NOT
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MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS OR IMPLIED
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WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
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MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF
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THIRD PARTY RIGHTS, AND ANY WARRANTIES ARISING FROM A COURSE OF
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DEALING, USAGE, OR TRADE PRACTICE. THE DURATION OF ANY IMPLIED
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WARRANTY THAT IS NOT EFFECTIVELY DISCLAIMED WILL BE LIMITED TO THE
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WARRANTY PERIOD. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN
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IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
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(b) UPEK DOES NOT WARRANT THAT THE SOFTWARE PRODUCT IS ERROR FREE OR
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THAT YOU WILL BE ABLE TO OPERATE THE SOFTWARE WITHOUT PROBLEMS OR
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INTERRUPTIONS.
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9. LIMITATION OF LIABILITY.
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(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY
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ACKNOWLEDGE AND AGREE THAT NEITHER UPEK NOR ITS AFFILIATES, RESELLERS
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OR LICENSORS WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
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CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN
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CONNECTION WITH THIS EULA, HOWSOEVER CAUSED BY ANY THEORY OF
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LIABILITY, INCLUDING BUT NOT LIMITED TO, CONTRACTS, PRODUCTS
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LIABILITY, STRICT LIABILITY AND NEGLIGENCE, AND WHETHER OR NOT UPEK OR
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ITS SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF
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SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING AND TO THE MAXIMUM EXTENT
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PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE TOTAL LIABILITY OF
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UPEK OR ANY OF ITS AFFILIATES, SUPPLIERS OR LICENSORS ARISING OUT OF
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OR RELATED TO THIS EULA EXCEED THE FEES ACTUALLY PAID TO UPEK FOR THE
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SOFTWARE PRODUCT.
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(b) YOU ACKNOWLEDGE AND AGREE THAT THE PROVISIONS UNDER THIS EULA THAT
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LIMIT LIABILITY, DISCLAIM WARRANTIES, OR EXCLUDE CONSEQUENTIAL DAMAGES
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OR OTHER DAMAGES OR REMEDIES ARE ESSENTIAL TERMS OF THIS EULA THAT ARE
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FUNDAMENTAL TO THE PARTIES' UNDERSTANDING REGARDING ALLOCATION OF
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RISK. ACCORDINGLY, SUCH PROVISIONS SHALL BE SEVERABLE AND INDEPENDENT
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OF ANY OTHER PROVISIONS AND SHALL BE ENFORCED AS SUCH, REGARDLESS OF
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ANY BREACH OR OTHER OCCURRENCE HEREUNDER, AND EVEN UNDER CIRCUMSTANCES
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THAT CAUSE ANY EXCLUSIVE REMEDY UNDER THIS EULA TO FAIL OF ITS
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ESSENTIAL PURPOSE.
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10. TERM AND TERMINATION.
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(a) The term of this EULA shall commence upon the date You accept the
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terms and conditions of this EULA, and shall continue in full force
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and effect thereafter unless terminated by UPEK as provided herein.
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UPEK may, at its option, terminate this EULA immediately upon notice
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to You, if You fail to comply with any terms and conditions of this
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EULA.
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(b) Upon termination, all license rights under this EULA will
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terminate and You must promptly destroy all copies of the Software
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Product in Your possession or control. Upon UPEK's request, You shall
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certify in writing that You have complied with Your obligations under
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this Section and otherwise under this EULA. Termination by UPEK will
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not limit any of UPEK's other rights or remedies under this EULA or at
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law or in equity.
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11. MISCELLANEOUS.
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(a) LIMITS ON YOUR RIGHT TO TRANSFER. You may not assign, sublicense,
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rent, lease, lend, sell, grant a security interest in, or otherwise
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transfer the Software Product or any rights under this EULA without
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the prior written consent of UPEK.
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(b) APPLICABLE LAW. This EULA is governed by the laws of the United
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States and the State of California, without regard to the conflict of
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laws principles thereof. In relation to any legal action or proceeding
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arising out of this EULA, You hereby irrevocably consent and submit to
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the exclusive jurisdiction of the competent federal and state courts
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having jurisdiction in San Francisco County, California, and waive any
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objection to proceedings in such courts. If this EULA is translated
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into a language other than English and there is a conflict between the
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terms of the EULA in English and the EULA in the other language, the
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terms of the terms of the EULA in English shall prevail. The EULA in
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English may be downloaded from the UPEK website.
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(c) COMPLIANCE WITH LAWS. You agree to use the Software Product in
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compliance with all applicable laws, statutes, rules and regulations,
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including, without limitation, U.S. export laws and regulations.
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(d) SEVERABILITY AND SURVIVAL. If any provision of this EULA is
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illegal or unenforceable under applicable law, the remaining
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provisions of this EULA will remain valid and fully enforceable. If
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any provision is in part enforceable and in part unenforceable, it
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will be enforced to the extent permitted under applicable law.
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Sections 4, 5, 7, 8, 9, 10 and 11 shall survive the termination of
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this EULA.
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(e) INJUNCTIVE RELIEF. You agree that a breach of this EULA adversely
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affecting UPEK's proprietary rights in the Software Product or any
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UPEK-Enabled Device may cause irreparable injury to UPEK for which
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monetary damages would not be an adequate remedy and UPEK shall be
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entitled to equitable relief in addition to any remedies it may have
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hereunder or at law.
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(f) ENTIRE AGREEMENT. This EULA (including any addendum or amendment
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to this EULA which is included with the Software Product) is the
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entire agreement between You and UPEK relating to the Software Product
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and the Support Services (if any) and they supersede all prior or
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contemporaneous oral or written communications, proposals and
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representations with respect to the Software Product or any other
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subject matter covered by this EULA. No amendment to or modification
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of this EULA will be binding unless made in writing and signed by
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UPEK. No failure to exercise, and no delay in exercising, on the part
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of either party, any right or any power hereunder shall operate as a
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waiver thereof, nor shall any single or partial exercise of any right
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or power hereunder preclude further exercise of any other right
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hereunder. In the event of any conflict between this EULA and any
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applicable purchase terms or UPEK's policies and terms for Support
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Services, the terms of this EULA shall control.
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