license.txt
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END USER LICENSE AGREEMENT
THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT ("EULA") CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR, IF PURCHASED OR OTHERWISE ACQUIRED BY OR FOR AN ENTITY, SUCH ENTITY) ("YOU", "YOUR" OR "LICENSEE") AND CDATA SOFTWARE, INC. ("COMPANY") WITH RESPECT TO USE OF THE LICENSED SOFTWARE (AS DEFINED HEREIN). BY INSTALLING, COPYING, DOWNLOADING OR OTHERWISE ACCESSING THE LICENSED SOFTWARE, OR ELECTRONICALLY ACCEPTING THIS EULA, LICENSEE COMPLETELY AND UNEQUIVOCALLY AGREES TO BE BOUND BY THE TERMS OF THIS EULA WITHOUT MODIFICATION, INCLUSIVE OF ANY FUTURE UPDATES. COMPANY MAY MODIFY THIS EULA FROM TIME-TO-TIME, AS IT DEEMS NECESSARY OR APPROPRIATE. ANY DIFFERENCES BETWEEN THIS EULA AND THE ONLINE VERSION ARE SUPERSEDED BY THE ONLINE VERSION. In consideration of the mutual covenants herein expressed, and other true and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as follows: 1. DEFINITIONS. The following capitalized terms shall have the meanings and applications set forth below: 1.1 "Affiliate" means entities, regardless of corporate status, controlled by, controlling or under common control with Company or Licensee, respectively, or officers, directors, shareholders, employees or agents of any of the foregoing. 1.2 "Beta" means Licensed Software that is undergoing testing and has not yet been officially released by Company. 1.3 "Core" means a core of a CPU made up of an independent processor combined onto a single integrated circuit or silicon chip, in both virtualized and/or non-virtualized environments, and regardless of whether used in a Production or Non-Production (e.g. test, development) environment. 1.4 "CPU" means a computer processing unit, also known as a processor or microprocessor. It can contain multiple Cores in both virtualized and/or non-virtualized environment. 1.5 "Desktop/Workstation" means a single physical machine, including but not limited to a personal computer, workstation, laptop computer, desktop computer or mobile device, specifically excluding a Server, on which the Licensed Software is loaded or executed, that is operated, either attended or via remote access, by one person at a time, and cannot be used by more than one person, directly or indirectly, simultaneously. 1.6 "Developer" means any named identifiable individual person, not necessarily named at the time of a license grant, regardless of whether or not the individual is actively using the Licensed Software at any given time, designated by Licensee to do any of the following: (A) build, compile, assemble, test or otherwise cause to be executed any application programs that rely on the Licensed Software as a component; (B) use or execute any bundled standalone Licensed Software programs for development, testing, or support purposes; (C) package or otherwise prepare Licensed Software components for redistribution as part of another program or application; or (D) have possession of any Licensed Software resources or files for any purposes other than archiving. 1.7 "Documentation" means printed materials and "on line" or electronic documentation relating to the Licensed Software provided under this Agreement. 1.8 "End-User" means a person or entity licensing the Licensed Software as part of Value-Added Solution from Licensee under an End-User License Agreement solely for personal or internal use and without right to sub-license, assign or otherwise transfer such Value-Added Solution to any other person or entity. 1.9 "End-User License Agreement" means a written agreement between either Licensee or its Affiliates and an End-User, which agreement is either signed by both parties or is in "click-through" form, covering the licensing of the Value-Added Solution to such End-User. Such agreement must be consistent with, and no less protective of Company's proprietary and Intellectual Property rights in the Licensed Software, than the terms of this Agreement. 1.10 "Intellectual Property" means any and all tangible and intangible: (A) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof; (B) trademark and trade name rights and similar rights; (C) trade secret rights; (D) patents, designs, algorithms and other industrial property rights; (E) intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise, not otherwise described herein; and (F) registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing). 1.11 "License Fees" means the non-refundable fees set forth in a Transaction Document payable by Licensee to Company in consideration for the granting of Licensed Software licenses under this EULA. 1.12 "License Model" means the schedule attached hereto and incorporated herein as Exhibit A, which sets out the specific grant of the Licensed Software listed in the Transaction Document and a description of the terms, conditions, limitations and restrictions associated with the Licensed Software. 1.13 "Licensed Software" means the specific Company proprietary software products noted on the Transaction Document in object code form only, licensed to Licensee under this EULA, including all copies made by Licensee. 1.14 "Major Upgrade" means a release of a new version of the Licensed Software by Company. 1.15 "Non-Commercial" means any use of the Licensed Software which (A) is not undertaken for profit; (B) is not intended to produce software, works, services, or data for commercial use; or (C) is neither conducted, nor funded, by a person or an entity engaged in the commercial use, application, development or exploitation of works similar to the Licensed Software. 1.16 "Non-Production" means a non-operational environment into which the Licensed Software may be installed, which is not processing live data, which is not running any operations of the Licensee and which has not been deployed to permit any users to access live data. Non-Production environments include development and test environments. 1.17 "Perpetual" means the right to use the Licensed Software according to the license grant and restrictions set forth on Exhibit A, for an indefinite period of time, unless applicable law renders a perpetual license invalid, in which case, "Perpetual" shall mean the right to use the Licensed Software for a period of ninety-nine (99) years from the effective date of the Transaction Document. 1.18 "Product Key" means an encrypted character string in any form provided by Company to Licensee to initialize or enable use of the Licensed Software. 1.19 "Production" means an operational environment into which the Licensed Software has been installed, which is processing live data and which has been deployed so that the intended users of the environment are able to access the live data. Production environments include quality assurance, disaster recovery, failover, and high availability environments. 1.20 "Redistributables" means those runtime libraries and files intended for duplication and distribution with the Value-Added Solution. 1.21 "Server" means a physical or virtual machine where more than one person can simultaneously use the computer either by direct or remote access. For purposes of this definition, each virtual machine, hardware partition, or blade is considered to be a separate Server, including but not limited to web servers, batch servers, application servers and network servers. If there are two copies of an operating system loaded on a single physical network server computer, such a configuration shall be deemed to be two Servers for the purposes of this EULA. Furthermore, each virtual machine, hardware partition, or blade is considered to be a separate Server. A Server may not have more than four (4) Cores on a CPU including a hyperthread on a CPU, unless specifically set out in a Transaction Document. 1.22 "Site" means the single physical location that corresponds to a single physical mailing address, where Developers are licensed to use the Licensed Software under the specific License Model in Exhibit A as designated in the Transaction Document. 1.23 "Subscription" means the right to use the Licensed Software set forth in a Transaction Document and identified as a Subscription, together with the right to receive and use Major Upgrades and Updates solely during the Subscription Term. 1.24 "Subscription Term" means, unless otherwise set forth in a Transaction Document, for the initial subscription period, twelve (12) months from the effective date of the Transaction Document. Each subsequent subscription term will start on the day following the expiration of the previous subscription term regardless of the actual subscription renewal date. 1.25 "Transaction Document" includes: (A) a purchase order or other written order form from Licensee and accepted by Company in e-mail confirmation or by releasing Product Keys to Licensee; (B) a quotation issued by Company and signed by the Licensee; (C) any document accepted by and between a Company reseller or distributor pursuant to which Licensee may order Licensed Software from Company; (D) an invoice issued by Company; or (E) any other document that references this EULA and is agreed to by Company in writing. All Transaction Documents are incorporated herein and governed by this Agreement. Any Licensee Transaction Document, including but not limited to purchase order terms, which purport to amend, add to or modify terms of this Agreement, or which conflict with this Agreement are void. 1.26 "Update" means any minor change or enhancement relating to the Licensed Software issued to Licensee from Company, specifically excluding a Major Upgrade. 1.27 "Value-Added Solution" means any application, program or other software that Licensee develops using the Licensed Software and/or which has the Licensed Software embedded therein. 2. LICENSE RIGHTS AND GENERAL LIMITATIONS 2.1 Company provides Licensed Software according to the specific License Model purchased by Licensee for the Licensed Software as stated in the Transaction Document and set out in Exhibit A hereto. If no License Model is specified in the Transaction Document, the License Model for which Company has been paid License Fees will apply. Licensed Software ordered through a Company authorized OEM, VAR, reseller or distributor are governed by this EULA. 2.2 Licensee may make a reasonable number of copies of the Licensed Software and Documentation, provided that all copies must be used only for internal purposes for archival and off-line backup purposes, but not for disaster recovery purposes unless Licensee has purchased the appropriate disaster recovery or replication license and may not be republished or distributed externally. 2.3 Licensee agrees not to remove any product identification, copyright notices, or other notices or proprietary restrictions from the Licensed Software. Further, Licensee is not allowed to disassemble, decompile or "unlock", decode or otherwise reverse translate or engineer, or attempt in any manner to reconstruct or discover any source code or underlying algorithms of Licensed Software that is provided to You unless otherwise allowed by law. 2.4 Licensee may not sublicense, sell, rent, encumber, outsource, lease or grant any other rights in the Licensed Software and/or the Documentation to others or otherwise allow the Licensed Software to be accessed, used or possessed by another party as a stand-alone product. For these purposes, the term "use" shall include, without limitation, direct or indirect use via thin-client or web-based remote access software which but for the use thereof would have required a copy of the Licensed Software to be installed or used locally by that user. 2.5 Licensee may not use the Licensed Software to create products, technologies, software applications, or web services in whole or in part, that directly or indirectly compete with the Licensed Software. "Compete(s)" is defined as creating or distributing software or services that provide similar or same functionality as the Licensed Software, including but not limited to, software that directly or indirectly exposes all or part of the Licensed Software. 2.6 Licensee is not granted any rights or license to source code under this EULA. However, in the event that Licensee obtains a valid license to any of the Licensed Software source code, the following conditions and requirements, together with any other provisions listed in a Transaction Document shall apply: a) Company retains all right, title and interest in and to the Licensed Software source code. Licensing of the Licensed Software source code does not constitute a transfer of ownership to Licensee. b) Modifications to the Licensed Software source code by Licensee do not constitute ownership of the underlying source code. Licensee modifications to the Licensed Software source code may not be sold, transferred or published in any manner whatsoever. Modifications to the Licensed Software source code may not be used in any manner to compete with the Licensed Software or any other product of Company. c) Licensee acknowledges that the Licensed Software source code is licensed "AS-IS", without warranty of any kind, and agrees that Company is under no obligation to provide maintenance or support for any original or modified Licensed Software source code. Licensee further acknowledges that Company may modify the Licensed Software source code in the future and is not required to provide Licensee with those modifications. 3. OWNERSHIP Except for the limited license granted herein, Company retains exclusive ownership of all Intellectual Property rights (including all ownership rights, title, and interest) in and to the Licensed Software and Documentation (including but not limited to any copies of the Licensed Software or Documentation that You are expressly permitted to make herein). All rights not expressly granted herein are reserved by Company. Licensee will not remove, suppress, or modify in any way any proprietary marking which is on or in the Licensed Software or Documentation, except where expressly allowed. Licensee expressly acknowledges and agrees that Company shall be the sole owner of any newly-developed Intellectual Property including but not limited to (A) newly-developed, revised, or modified source code; and (B) inventions where such are related in any way to the Licensed Software or Company's general business, regardless of the creator, whether such are developed, revised, or modified in response to Licensee's requests, suggestions, or ideas, even if paid for by Licensee. 4. DELIVERY; PAYMENT 4.1 The Licensed Software is deemed delivered upon the earlier of its availability at the electronic software download site specified by Company or Licensee is e-mailed or otherwise issued a valid Product Key to access and install the Licensed Software. 4.2 All License Fees and taxes due to Company by Licensee are non-refundable. All License Fees are due and payable within thirty (30) days of the date of invoice or other Transaction Document. Any amounts not subject to a good faith dispute that are not paid within forty-five days of the date of invoice will incur interest at the highest rate then permitted by law. Additionally, Company may suspend Support and Maintenance until the undisputed portion of Licensee's account is brought current. In the event of non-payment, Company may terminate this EULA and the licenses granted hereunder. Taxes imposed by government agencies, with the exception of taxes based on the net income of Company, are the obligation of Licensee. Licensee is responsible for paying the full amount of License Fees to Company regardless of any taxes or bank transaction fees Licensee is required to pay. All License Fees and taxes due to Company under this EULA are payable in the currency specified in the Transaction Document. For any future period, Company may increase any or all fees payable hereunder. In the event the Licensee utilizes the Licensed Software in excess of the number of licenses set forth in a Transaction Document, Licensee shall be obligated to pay Company the relevant License Fees, together with any applicable Support or Maintenance Fees for the relevant period. This Section 4.2 does not apply if Licensed Software is purchased through a Company authorized OEM, VAR, reseller or distributor. 5. SUPPORT AND MAINTENANCE Company offers Support and Maintenance for the Licensed Software in accordance with Company's then current and applicable policies as listed on the Company website. 6. AUDIT 6.1 You accept and agree that Company may audit your use of the Licensed Software for compliance with this EULA at any time, upon reasonable notice, in a manner that does not interfere with your business operations. In the event such audit discloses non-compliance with this Agreement, Licensee shall promptly pay to Company the appropriate License Fees, including but not limited to Maintenance, Support and Subscription Fees, to bring the Licensee in compliance with this EULA, plus the reasonable cost of conducting the audit. 6.2 Licensee agrees that Company may collect and use technical information gathered solely to improve products and services and will not disclose this information in a form that personally identifies Licensee. 7. DISCLAIMER OF WARRANTY 7.1 THE LICENSED SOFTWARE AND DOCUMENTATION IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER, COMPANY SPECIFICALLY DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE OF THE LICENSED SOFTWARE OR DOCUMENTATION IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR ITS EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY, AND LICENSEE MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. FURTHER, THE LICENSED SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE OR RESALE AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE LICENSED SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE ("HIGH RISK ACTIVITIES"). COMPANY AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. 7.2 If a jurisdiction applicable to this EULA restricts the exclusion of certain implied warranties, limitations on how long an implied warranty may last, or the exclusion or limitation of incidental, consequential, or special damages: (A) each warranty which cannot be excluded is limited in time to 60 days from the date of first delivery of the Licensed Software; and (B) Company's total liability to Licensee for breach of all such warranties are limited to the amount stated in Section 9. 8. INDEMNITY You agree to indemnify, hold harmless, and defend Company and its Affiliates from and against any and all claims, lawsuits and proceedings (collectively "Claims"), and all expenses, costs (including reasonable attorney's fees), judgments, damages and other liabilities resulting from such Claims, that arise or result from Your use of the Licensed Software in violation of this Agreement or breach of any of the terms and conditions of this Agreement. 9. LIMITATION OF LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY'S TOTAL AGGREGATE AND CUMULATIVE LIABILITY (IF ANY) TO LICENSEE FOR ANY AND ALL CLAIMS OF ANY KIND ARISING HEREUNDER EXCEED THE AMOUNT OF LICENSE FEES ACTUALLY PAID BY LICENSEE FOR THE LICENSED SOFTWARE GIVING RISE TO THE CLAIM IN THE TWELVE MONTHS PRECEDING THE CLAIM. COMPANY'S LICENSORS AND THEIR SUPPLIERS SHALL HAVE NO LIABILITY TO LICENSEE FOR ANY DAMAGES SUFFERED BY LICENSEE OR ANY THIRD PARTY AS A RESULT OF USING THE LICENSED SOFTWARE. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL COMPANY, ITS LICENSORS, OR ANY OF THEIR RESPECTIVE SUPPLIERS BE LIABLE FOR ANY LOST SALES, LOST REVENUE, LOST PROFITS, LOST OR CORRUPTED DATA, OR REPROCUREMENT AMOUNT OR FOR INDIRECT, PUNITIVE, AGGRAVATED, EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, ANY COMMERCIAL DAMAGES OR LOSSES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OR INABILITY TO USE THE LICENSED SOFTWARE, EVEN IF COMPANY, ITS LICENSORS AND/OR ANY OF THEIR RESPECTIVE SUPPLIERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. EACH EXCLUSION OR LIMITATION IS INTENDED TO BE A SEPARATE AND THEREFORE SEVERABLE EXCLUSION. 10. TERM; TERMINATION 10.1 The term of each license of the Licensed Software shall be either Perpetual or for a Subscription Term as set forth in the applicable Transaction Document. 10.2 Licensee may terminate any license, including a Subscription license, with thirty (30) days' notice to Company. 10.3 Unless otherwise set forth in Exhibit A, upon expiration and non-renewal of a Subscription Term, all license(s) granted to You shall immediately terminate and (A) You will not receive any further Updates or Major Upgrades; (B) You will immediately cease all use of the Licensed Software; and (C) You must remove and destroy the Licensed Software, including any Licensed Software integrated into any Value-Added Solution, Documentation and Company Confidential Information in your possession or control. 10.4 Unless otherwise prohibited by law, and without prejudice to Company's other rights or remedies, Company shall have the right to terminate this Agreement and any license(s) granted hereunder immediately for the following reasons: (A) If You breach any of the material terms of this Agreement, and You fail to cure such material breach within thirty (30) days of receipt of notice from Company; (B) Any purported transfer or assignment of this Agreement or the Licensed Software license granted hereunder by Licensee or other action by Licensee in contravention of Section 13.3; and (C) Any purported transfer or assignment of this Agreement or the license(s) granted hereunder as a result of Licensee's bankruptcy, insolvency, or liquidation or as a result of an assignment of Licensee's assets for the benefit of creditors. Upon termination of this Agreement under this Section 10.4: (A) All license(s) granted to You hereunder shall terminate automatically; (B) You shall immediately cease use of the Licensed Software; and (C) You must remove and destroy all copies of the Licensed Software integrated into any developed, deployed and/or distributed Value-Added Solution. 10.5 Sections 1 (Definitions), 2 (License Rights and General Limitations - solely as to all restrictions and limitations imposed on the Licensee including those set out in Exhibit A), 3 (Ownership), 4 (Delivery and Payment - to the extent any payment is due Company), 6 (Audit), 7 (Disclaimer of Warranty), 8 (Indemnity), 9 (Limitation of Liability), 10 (Term and Termination), 12 (Confidentiality) and 13 (Miscellaneous Provisions) shall survive termination of this Agreement. 11. EXPORT The Licensed Software is subject to United States export control laws and regulations and may be subject to export or import regulations in other countries. Licensee shall comply with all domestic and international export and import laws and regulations that apply to the Licensed Software and acknowledges that Licensee has the responsibility to obtain and pay for any and all necessary licenses to export, re-export, or import the Licensed Software and covenants that it shall not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any Licensed Software received from Company under this EULA to any other party or destination prohibited by the laws or regulations of the United States, without obtaining prior governmental authorization as required by those laws and regulations. 12. CONFIDENTIALITY 12.1 Licensee acknowledges that the Licensed Software, including all source and/or object code and all parts and aspects thereof, and any updates, modifications, translations, localizations, or other derivative works thereof, in whatever form, whether or not marked as confidential, and benchmark results (collectively, the "Confidential Information"), are the valuable proprietary and trade secret information of Company and/or its licensors and suppliers. Licensee shall (A) limit use and disclosure of the Confidential Information to its employees and its consultants who are authorized pursuant to this Agreement to use the Licensed Software and who agree to be bound by the terms of this Agreement or are otherwise bound to a confidentiality agreement containing substantially similar terms; (B) not provide or disclose any of the Confidential Information to another party; and (C) treat the Confidential Information with the same degree of care to avoid disclosure to any third party as is used with respect to Licensee's information of like importance which is to be kept secret, but with no less than reasonable care. The foregoing obligations shall be in addition to any obligations set forth in any separate confidentiality agreement between Company and Licensee. 12.2 Company will have no confidentiality obligations with respect to feedback given to Company by Licensee, in any format, including but not limited to, ideas for new products, technologies, promotions, product names, Beta suggestions, product feedback, and product improvements (the "Feedback"). Licensee agrees that Company and its designees will be free to copy, modify, create derivative works, publicly display, use Licensee's personally identifying information to attribute such Feedback to Licensee in Company marketing materials, disclose, distribute, license and sublicense through multiple tiers of distribution and licensees, incorporate and otherwise use the Feedback, including derivative works thereto, for any and all purposes. 12.3 Licensee acknowledges that in the event of a breach or threat of breach of this Section 12, money damages will not be adequate. Therefore, in addition to any other legal or equitable remedies, Company shall be entitled to seek injunctive or similar equitable relief against such breach or threat of breach. 13. MISCELLANEOUS PROVISIONS 13.1 If the Licensed Software is being licensed directly or indirectly on behalf of the United States government, the following applies: For civilian agencies and departments, the Licensed Software was developed at private expense and is "restricted computer software" submitted with restricted rights in accordance with subparagraphs (a) through (d) of the Commercial Computer Licensed Software-Restricted Rights clause of FAR 52.227-19 and its successors, and it is unpublished and all rights are reserved under the copyright laws of the United States. For units of the Department of Defense, the Licensed Software is "commercial computer software" and "commercial computer software documentation" under the Rights in Computer Licensed Software and Computer Licensed Software Documentation clause of DFAR 227.7202 -3(a) and its successors, and all use, duplication or disclosure is subject to the license and restrictions set forth in this EULA. Contract/Manufacturer is CData Software Inc., 600 Market Street, Suite 300, Chapel Hill, NC 27516. 13.2 Company and Licensee are independent contractors. Neither party has any authority to bind the other in any manner. 13.3 This EULA, including any rights, licenses or obligations under this EULA, may not be assigned or otherwise transferred (in any way, whether by operation of law, merger, reorganization, or otherwise) by Licensee to any non-Affiliate party without the prior written consent of Company and any attempt to do so in violation of the terms hereof shall be null and void. 13.4 Any amendment of this EULA must be in writing and signed by both parties. Neither party will be deemed to have waived any of its rights under this EULA by lapse of time or by any statement or representation other than by a written waiver by a duly authorized representative. No waiver of a breach of this EULA will constitute a waiver of any prior or subsequent breach of this EULA. 13.5 This EULA is governed by the laws of the State of North Carolina excluding (A) its conflicts or choice of law rules; (B) the United Nations Convention on Contracts for the International Sale of Goods; and (C) the Uniform Computer Information Transactions Act, or any version, adopted by any state. Except for a request by Company for injunctive or other equitable relief, any dispute arising out of this EULA will be subject to the exclusive jurisdiction of the courts located in the State of North Carolina. 13.6 Except for payment and confidentiality obligations, or protection of Intellectual Property, neither party is responsible for any delay or failure in performance of this EULA to the extent due to causes beyond its reasonable control. 13.7 If any provision of this EULA is deemed contrary to applicable law or unenforceable by a court of competent jurisdiction, the provision will be severed from this EULA and all remaining provisions will continue in full force. 13.8 Company may refer to Licensee's relationship with Company and/or use the name and/or logo of Licensee in a public press release, on its website or marketing materials. 13.9 This Agreement sets forth the entire agreement between the parties with respect to this subject matter, and supersedes all other related oral and written agreements and communications between the parties. Neither party has relied upon such other agreements or communications. 13.10 This EULA does not confer a benefit on, and is not enforceable by, any person or entity who is not a party to this EULA. 13.11 Company reserves the right at any time not to release or to discontinue release of any Licensed Software and to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of any future releases of the Licensed Software. 13.12 Both parties have had an opportunity for legal review of this EULA. The EULA will not be construed in favor of or against either party by reason of authorship. The headings used in this EULA are for convenience only. The parties confirm that this Agreement and all related documentation is and will be in the English language. 13.13 Any and all notices, requests, demands and other communications required or otherwise contemplated to be made under this Agreement shall be in writing and in English and shall be deemed to have been duly given (A) if delivered personally, when received; (B) if transmitted by facsimile, upon receipt of a transmittal confirmation; (C) if sent by registered airmail, return receipt requested, postage prepaid, on the sixth business day following the date of deposit in the mail; (D) if by international courier service, on the second business day following the date of deposit with such courier service, or such earlier delivery date as may be confirmed to the sender by such courier service; or (E) if by email, when the recipient, by an email sent to the email address for the sender as specified on the signature page or by a notice delivered by another method in accordance with this Section 13.13, acknowledges having received that email, with an automatic "read receipt" not constituting acknowledgment of an email for purposes of this Section 13.13. All such notices, requests, demands and other communications shall be addressed as specified on the signature page of this Agreement. EXHIBIT A - LICENSE MODELS The Licensed Software(s) is offered in the following license types pursuant to the specific grant and restrictions set forth below and noted on the Transaction Document. Where any term set forth below conflicts with any term in the EULA, the term set forth on this Exhibit A shall take precedence. The following License Models may also be available as a Site licenses as defined herein and noted on the Transaction Document. TRIAL LICENSE AND BETA LICENSE A. License Grant: Subject to Licensee's continuous compliance with the terms and restrictions set forth herein, Company grants Licensee a non-transferable, non-sublicensable, non-exclusive, time-limited right and license for Licensee to install, store, use and run the number of licenses listed in the Transaction Document of the Licensed Software, in object code form on the number of Desktop/Workstation(s) or Non-Production Server(s) listed in the Transaction Document, over an internal network, solely for purposes of internal evaluation and testing the Licensed Software. B. License Term; Termination: The license period shall be in effect from the Effective Date of this EULA and shall remain in effect for the time period as provided by Company in the Transaction Document. Company reserves the right to terminate the Trial License and this EULA at any time for any reason upon notice to Licensee. Upon termination or expiration of this license, Licensee shall delete the Licensed Software from the Desktop/Workstation or Non-Production Server containing the installation. C. Specific Restrictions: The functionality of the Licensed Software may be limited. NON-COMMERCIAL LICENSE A. License Grant: Subject to Licensee's continuous compliance with the terms and restrictions set forth herein, Company grants Licensee the number of licenses set forth in the Transaction Document, a Perpetual, non-transferable, non-sublicensable, non-exclusive, limited right and license solely for Non-Commercial use of the Licensed Software on the number of Desktop/Workstation(s) as set forth in the Transaction Document for Licensee's internal data processing and computing needs. B. Specific Restrictions: The functionality of the Licensed Software may be limited. DEVELOPMENT LICENSE - NO DISTRIBUTION OR DEPLOYMENT A. License Grant: Subject to Licensee's continuous compliance with the terms and restrictions set forth herein, for each license of the Licensed Software purchased by Licensee and set forth on the Transaction Document, Company grants Licensee a non-exclusive, non-transferable, non-sublicensable, worldwide right and license for the number of Developer(s) listed on the Transaction Document to install, use and access the Licensed Software solely on the number of Desktop/Workstation(s) or Non-Production Server(s) listed in the Transaction Document for internal development only. B. Specific Restrictions: (A) For the avoidance of doubt, Licensee is not granted any right to distribute or deploy any product, including but not limited to, Value-Added Solution(s) developed under this Development License; (B) The total count of Developers enabled to use the Licensed Software must not exceed the number of licenses purchased on the applicable Transaction Document(s); (C) The allocation of licenses are permanent and cannot be shared or exchanged between individuals. Notwithstanding the above, with approval from Company and in no event more frequently than twice per year, a license may be re-allocated to another individual in the event that the original individual is no longer employed by the Licensee or has been assigned to a new role where access to the Licensed Software will no longer be required on a permanent basis; and (D) The Licensee may not use software or hardware that reduces the number of individuals directly accessing or utilizing the Licensed Software (sometimes called "multiplexing" or "pooling" software or hardware). The use of such multiplexing hardware or software does not reduce the number of licenses required. The required number of licenses equals the number of distinct human beings who access the Licensed Software at any time via the front end of the multiplexing or pooling software or hardware. DEVELOPER LICENSE - ROYALTY FREE DISTRIBUTION AND DEPLOYMENT A. Development License Grant: Subject to Licensee's continuous compliance with the terms and restrictions set forth herein, for each license of the Licensed Software purchased by Licensee and set forth on the Transaction Document, Company grants Licensee a non-exclusive, non-transferable, non-sublicensable, worldwide right and license for the number of Developer(s) listed in the Transaction Document to install, use and access the Licensed Software for internally designing, developing, testing and creating Value-Added Solution(s) on the number of Desktop/Workstation(s) or Server(s) listed in the Transaction Document. B. Distribution/Deployment License Grant: Subject to Licensee's continuous compliance with the terms and restrictions set forth herein, Company grants Licensee a royalty-free, non-exclusive, non-transferable right to sublicense the Licensed Software's use, in object code form only and solely in and as an integral part of Your Value-Added Solution which You may then distribute or deploy solely to a Desktop/Workstation (unless otherwise set forth in the Transaction Document) for use by Your authorized End-Users under an End-User License Agreement with no royalties owed to Company. C. Distribution Restrictions: (A) Unless otherwise set forth in the Transaction Document, You may only distribute or deploy the Value-Added Solution to a Desktop/Workstation and not a Server; (B) You may not distribute, bundle, wrap or subclass the Licensed Software as Value-Added Solution which, when used in a "design-time" development environment, exposes the programmatic interface of the Licensed Software; (C) You may distribute, on a royalty-free basis, Redistributable Files with Value-Added Solution only; (D) End-Users may not use or be able to use the Licensed Software or the Redistributable Files, directly or indirectly, for development purposes; (E) In no event are You allowed to sublicense the Licensed Software or its use in any format other than in object form, as a standalone product, or as a part of any product other than Your Value-Added Solution; (F) Licensee shall not embed or otherwise combine the Licensed Software and/or any Redistributables with any Value-Added Solution which is, or could be interpreted or asserted to be, subject to an Excluded License. An "Excluded License" is one that requires, as a condition of use, modification or distribution, that the code be disclosed or distributed in source code form; or others have the right to modify it; and (G) If Licensee wishes to use an OEM who will modify and/or copy the Value-Added Solution, Licensee must first obtain an OEM license from Company or must require the OEM to obtain a license from Company. Redistribution of the Value-Added Solution, or any portion thereof, by any third party including End-Users of the Value-Added Solution, without a separate written OEM license from Company, is prohibited. D. Term; Termination: The term of the Royalty-Free Developer License shall be either Perpetual or for a Subscription Term as set forth in the applicable Transaction Document. Upon expiration or termination of the Subscription Term by Licensee or by Company for non-payment of renewal Subscription License Fees, the Development License Grant and Distribution Restrictions set forth above and any sublicenses to use the Licensed Software granted by You to Your End-Users prior to expiration or termination shall survive, however, the Distribution License Grant will immediately terminate, you will immediately cease distributing or deploying Value-Added Solution(s) and You will not receive any further Updates or Major Upgrades. E. Licensee Indemnification of Company: In addition to the indemnification obligations set forth in Section 8 above, Licensee agrees to indemnify, hold harmless, and defend Company and its Affiliates, suppliers and resellers from and against any and all claims or lawsuits, including reasonable attorney's fees, which arise out of or result from Licensee's distribution or deployment of Value-Added Solution(s). F. Specific Product Limitations: Notwithstanding anything in this EULA to the contrary, if the Developer License you have purchased includes the following product, then the following additional restrictions or limitations will apply: ADO.NET Professional or Enterprise Subscription - (i) Licensee may distribute or deploy the Value-Added Solution to a Desktop/Workstation and/or a Server; (ii) Licensee may not distribute the Licensed Software with any Value-Added Solution which is built or developed for a third party; and (ii) Licensee may not use or access the Software from a third party application which was not built by the Licensee. Licensee must obtain a Server License from Company for such purpose. DESKTOP/WORKSTATION LICENSE A. License Grant: Subject to Licensee's continuous compliance with the terms and restrictions set forth herein, for each license of the Licensed Software purchased by Licensee and set forth on the Transaction Document, Company grants Licensee a non-transferable, non-sublicensable, non-exclusive worldwide right and license to install, use and access the Licensed Software on the number of Desktop/Workstation(s) set forth in the Transaction Document for internal data processing and computing needs. B. Specific Restrictions: (A) The Licensed Software may not be installed, accessed or used on a Server; and (B) The allocation of Desktop/Workstation Licenses are permanent and cannot be shared or exchanged between Desktop/Workstations without Company's written consent. SERVER LICENSE A. License Grant: Subject to Licensee's continuous compliance with the terms and restrictions set forth herein, for each license of the Licensed Software purchased by Licensee and set forth on the Transaction Document, Company grants Licensee a non-transferable, non-sublicensable, non-exclusive, worldwide right and license to install, use and access the Licensed Software on the number of Server(s) set forth in the Transaction Document for internal data processing and computing needs. B. Specific Restrictions: (A) For the purposes of this license grant, Licensee may install, use and access the Licensed Software on one (1) Desktop/Workstation as a substitute for, and not in addition to, one (1) Server and in such event, the defined term "Server" as used herein is then deemed to include the term "Desktop/Workstation"; (B) For the avoidance of doubt, Licensee is not granted any right to distribute or deploy any product, including but not limited to, Value-Added Solution(s) developed under this Server License; (C) The total count of Server(s) where the Licensed Software is installed must not exceed the number of licenses purchased on the applicable Transaction Document(s); (D) The allocation of Server Licenses are permanent and cannot be shared or exchanged between Servers. Notwithstanding the above, and no more frequently than twice per year with Company consent, Server Licenses may be re-allocated to another Server in the event the assigned Server is no longer functional; and (E) Licensee shall have no right to use the Licensed Software to provide time sharing, outsourced services, or facility management services or to act as or operate a service bureau or provide information, data processing, subscription or hosting services for another party. C. Specific Product Limitations: Notwithstanding anything in this EULA to the contrary, if the Server License you have purchased includes any of the following products, then the following additional restrictions or limitations will apply: (A) BizTalk Standard: Licensee may use the Licensed Software solely with the Microsoft BizTalk® Standard Edition for Licensee's internal data processing and computing needs; and (B) Cloud Driver Basic: The Licensed Software may only be installed, used and accessed on a licensed Server running on Licensee's private, proprietary network resource accessible by its authorized users ("Internal Network"). The Internal Network specifically excludes the Internet or any other network community open to the public, including membership or subscription driven groups, associations or similar organizations. Last Revised on December 12, 2016 |