END USER LICENSE AGREEMENT
THIS END USER LICENSE AGREEMENT ("EULA" or "AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU, EITHER A SINGLE INDIVIDUAL, ENTITY OR GOVERNMENT ORGANIZATION ("YOU" OR "YOUR") AND CDATA SOFTWARE, INC. AND ITS AFFILIATES ("LICENSOR") FOR THE SOFTWARE YOU ARE LICENSING. CAREFULLY READ THIS AGREEMENT BEFORE YOU INSTALL OR USE THE SOFTWARE. BY INSTALLING OR USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT. ALL SOFTWARE ORDERED THROUGH A LICENSOR AUTHORIZED PARTNER IS GOVERNED BY THIS AGREEMENT. IF YOU DO NOT HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT, OR IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT INSTALL OR USE THE SOFTWARE.
1.\011EVALUATION SOFTWARE. If you obtained a license to a trial, beta, or evaluation license of the Software ("Evaluation Version"), Licensor grants you a free-of-charge, non-transferable, non-sublicensable, non-exclusive right and license for one (1) Authorized User to Use one (1) copy of the Evaluation Version solely for Non-Production, Non-Commercial purposes to internally evaluate the Software to determine whether to purchase the Software. You may not download more than one (1) copy of the Evaluation Version of the Software unless otherwise authorized by Licensor. You may not use the Evaluation Version for any other purpose. You may only Use the Evaluation Version for thirty (30) days from the date you activate and/or register via the Product Key, unless otherwise specified by Licensor in the Order Form ("Evaluation Period"). Unless you pay the applicable fee for the Software (and Licensor issues you a Product Key in exchange), the Evaluation Version Software may become inoperable and, in any event, your right to Use the Evaluation Version Software automatically expires at the end of the Evaluation Period. Licensor may terminate your license to the Evaluation Version Software upon written notice at any time for any reason and without liability of any kind. If you subsequently license a non-evaluation version of the Software, your license to the Evaluation Version Software shall immediately terminate and you expressly agree that, unless you have a separate signed license agreement governing your use of the Software, this Agreement, and the terms and conditions herein, shall govern your use of such non-evaluation version. You may not distribute Applications that use the Evaluation Version of the Software.
2.\011LICENSE GRANT. Subject to the terms and conditions of this Agreement and payment of license fees, Licensor grants to you, during the Term set out in the Order Form, a worldwide, non-exclusive, non-transferable and non-assignable (except as otherwise expressly provided in this Agreement) right and license to install, access and Use the Software for your internal business operations in accordance with the number and type of licenses set out in Exhibit A and the Order Form.
3.\011BACK-UP AND DOCUMENTATION COPY. You may make a reasonable number of copies of the Software for Non-Production purposes provided you reproduce all copyright and other proprietary notices that are on the original copy of the Software. Further, you may make a reasonable number of copies of the Software user documentation (i.e. manuals and installation guides) for your internal use in accordance with this Agreement, provided that you reproduce all copyright and other proprietary notices that are on the original copy of Software user documentation.
4.\011LICENSE RESTRICTIONS. Licensor reserves all rights not expressly granted to you in this Agreement. Without limiting the generality of the foregoing, you acknowledge that the Software contains trade secrets and subject to applicable laws, you agree that you will not: (a) copy the Software, except as permitted under this Agreement; (b) modify, adapt or translate the Software, except as permitted under this Agreement; (c) de-compile, reverse engineer or disassemble the Software or otherwise reduce the Software from object code to source code; (d) use the Software to develop any works which are competitive to the Software; (e) lease, rent, loan, sell or distribute the Software to a third party (including, using the Software on a time-sharing basis, for service bureau purposes, or for the provision of a fee generating service directly or indirectly to third parties) without the prior written agreement of Licensor; (f) except as expressly permitted in this Agreement, assign or transfer your license rights to a third party or sub-license any or all of your license rights under this Agreement without the prior written agreement of Licensor; (g) combine the Software with any other software (including open source software), where the combined software is subject to any license that requires the combined program or the Software and its source code to be made freely available; (h) publicize or otherwise disclose any results of benchmark tests run on the Software; (i) You may not use multiplexing or pooling software or hardware that reduces the number of individual human beings directly accessing or utilizing the Software; and (j) the Software may not be used by your Affiliated parties unless specifically authorized in an Order Form.
5.\011CONFIDENTIAL INFORMATION. You acknowledge that the Software, including all object code and source 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, the Product Key and benchmark results (collectively, the "Confidential Information"), are the valuable proprietary and trade secret information of Licensor and/or its licensors and suppliers. You shall (i) limit use and disclosure of the Confidential Information to its employees and its consultants who are authorized pursuant to this Agreement to use the 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; (ii) not provide or disclose any of the Confidential Information to another party; and (iii) 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 Licensor and you. You further acknowledge that in the event of a breach or threat of breach of this Section 5 (Confidential Information), money damages will not be adequate. Therefore, in addition to any other legal or equitable remedies, Licensor shall be entitled to seek injunctive or similar equitable relief against such breach or threat of breach.
6.\011USE BY THIRD PARTIES. Licensor acknowledges and agrees that the Software may, subject to the terms of this Agreement, be used by your third-party service providers, independent contractors, consultants and outsourcers, provided that such third parties agree to comply with the terms of this Agreement and such third parties Use the Software only for your benefit and business purposes. If requested by Licensor, you will provide a list of any third parties that are using the Software pursuant to this Section to assist Licensor in managing the licensing of the Software. You will remain responsible and legally liable for the proper use of the Software in accordance with this Agreement by such third parties.
7.\011FEES. You agree to pay the applicable license fees for the Software and any applicable delivery charges, taxes, customs, duties or other governmental fees, relating to the license for the Software. License fees will either be payable immediately upon ordering the Software or may be invoiced and payable in accordance with the Order Form. All payments shall be made in the currency noted online or on the applicable Order Form within thirty (30) days of the applicable invoice. Any amounts not subject to a good faith dispute that are not paid within forty-five (45) days of the date of invoice will incur interest at the highest rate then permitted by law. Additionally, Licensor may suspend Updates, New Releases and support services until the undisputed portion of your account is brought current. Except as expressly set forth herein, all fees are non-refundable once paid. You are responsible for paying the full amount of fees to Licensor regardless of any taxes or bank transaction fees you are required to pay. Unless timely provided with a valid certificate of exemption or other evidence that items are not taxable, Licensor will invoice you for all applicable taxes including, but not limited to, VAT, GST, sales tax, consumption tax and service tax. If any withholding tax is required by applicable law to be paid by you in relation to payments due to Licensor hereunder, you will provide Licensor with official receipts and/or certificates from the appropriate taxing authorities to establish that any applicable taxes have been paid.
8.\011ELECTRONIC DELIVERY. All Software and Documentation shall be delivered by electronic means unless otherwise specified on the applicable Order Form. Software shall be deemed delivered when it is made available for download by you ("Delivery Date").
9.\011SOFTWARE SUPPORT AND MAINTENANCE. Support services for the Software and maintenance Updates, including New Releases of the Software, are included in paid subscriptions during the Subscription Term and otherwise available for purchase under Licensor's support and maintenance terms set out on Licensor's website www.cdata.com.
10.\011RECORDKEEPING AND AUDIT. You agree to monitor your use of all Software and generate accurate, complete and auditable records of levels of that use. If at any time your maximum level of Use of the Software exceeds the number of licenses you have purchased, then on or before ten (10) days after the last day of the calendar quarter in which your level of Use first exceeded that limit, you shall (i) notify Licensor in writing of your maximum level of Use and (ii) order and purchase sufficient licenses to meet or exceed the maximum level of Use of the Software during such calendar quarter. Failure either to timely report such excess use or to timely purchase and pay for the required additional licenses in accordance with this Section 10 shall be a material breach of this Agreement. In order to enable Licensor to verify your compliance with this Agreement, you shall, throughout the term of the license and for one (1) year thereafter, provide to Licensor and its professional advisors access to such facilities, personnel, records and reports as reasonably necessary for it to validate compliance with this Agreement. Such right of inspection and copying includes without limitation, all Software monitoring records generated and maintained under this Section 11, and all other written or electronic data and reports that you generate or receive relevant to a determination of whether you have complied with this Agreement. You hereby irrevocably consent and agree to execute and deliver to Licensor all documentation and to perform all such other acts including furnishing such waivers and releases, at Licensor's request and expense (subject to subsection 10(D) below) to enable Licensor to have access to all documents and records otherwise subject to inspection and audit herein, but in the custody of any third party. If any inspection discloses that you used the Software in excess of applicable license terms and failed timely to comply with this Section 10 (Recordkeeping and Audit), then on notice of the inspection results, you shall immediately (A) purchase and pay for sufficient additional licenses to meet or exceed your maximum level of Use of the Software; (B) purchase and pay for contracts for support and maintenance services sufficient to cover your new total number of Software licenses; (C) pay late payment fees accruing on the purchase price of such additional licenses and on the amount of underpayment in respect of contracts purchased or required for support and maintenance services at a rate of 1% per month for each calendar month since the month on which your Use first exceeded your licenses; and (D) pay the reasonable costs incurred by Licensor in conducting the audit. The remedy stated in this Section 10 (Recordkeeping and Audit) is in addition to any other remedy Licensor may otherwise have.
11.\011OWNERSHIP. The Software is licensed and not sold to you. Licensor shall at all times retain all right, title, and interest in the Software, Documentation, and Updates, including but not limited to any copies that You are permitted to make herein ("Licensor Materials"). All applicable common law and statutory rights in the Licensor Materials, including, but not limited to, rights in confidential and trade secret material, source code, object code, Intellectual Property rights, trademarks, service marks, patents, and copyrights, shall be and will remain the property of Licensor. You shall have no right, title, or interest in such proprietary rights except as provided in this Agreement. You recognize Licensor's rights in the Licensor Materials and in the Intellectual Property rights therein and will not at any time knowingly bring such title or validity into issue or in any way impair the title of Licensor to any of such rights. By virtue of this Agreement, you acquire only the non-exclusive right to use the Licensor Materials and do not acquire any rights of ownership to the Licensor Materials. Except for the license rights expressly granted herein, this Agreement grants no additional express or implied license, right or interest in the Licensor Materials or other Intellectual Property rights of Licensor or its Affiliates. Licensor reserves all rights not expressly granted to Licensee in this Agreement. You are responsible for any copyright infringement that is caused by you or any of your contractors.
12.\011TERM OF LICENSE; TERMINATION. If you purchased a subscription license, then the term of the subscription shall be twelve months from the Delivery Date unless the Order Form states otherwise and the license for the Software and this Agreement will terminate at the end of the subscription term unless it is renewed. Each subsequent annual renewal subscription term will start on the day following the expiration of the previous subscription term regardless of the actual subscription renewal date ("Subscription Term"). If the Order Form specifically states your Software license is "perpetual", then unless terminated earlier herein, the Software license and this Agreement begins on the Delivery Date and continues perpetually ("Perpetual Term"). Collectively, the Subscription Term and the Perpetual Term may be referred to herein as the "Term". You may terminate this Agreement at any time by providing written notice to Licensor, however, you will remain liable for the full amount of license fees for the entire Subscription Term and you will not receive a refund of any fees paid. If at any time you fail to make timely payment of any applicable fees due in respect of Software licensed or maintenance service or Use the Software in excess of your purchased licenses but fail to timely notify Licensor of such excess use and purchase and pay for the additional licenses as required or otherwise breach any term or condition of this Agreement, then Licensor may, in addition to any other remedy to which it may be entitled, terminate your license to the Software and any rights you may have to support and maintenance services, including Updates and New Releases. Either party may terminate this Agreement, effective immediately upon written notice, if the other party becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, if that petition or proceeding is not dismissed with prejudice within sixty (60) days after filing. If Your license term expires without renewal or reinstatement or otherwise terminates, then You shall promptly destroy or return to Licensor all copies of the Software and related documentation in your possession or control. If Licensor is terminating the license for cause, and you have acquired a subscription license, you remain liable for all unpaid subscription fees that are payable for the entire Subscription Term. Within thirty (30) days following any expiration or termination, an authorized signatory of your organization will certify in writing to Licensor that the original and all copies of the Software have been destroyed or returned to Licensor. The following applies solely to subscription licenses: the provisions of Sections 5 (Confidential Information), 7 (Fees) for so long as any fees are due to Licensor, 10 (Recordkeeping and Audit), 11 (Ownership), 12 (Term of License; Termination), 13 (Indemnification), 14 (Disclaimer of Warranty), 15 (Limitation of Liability), 16 (General) and Exhibit A (Definitions) shall survive termination or expiration of this Agreement. For the avoidance of doubt, sublicenses of the Software validly granted by you to your Application end-users hereunder shall survive termination or expiration of this Agreement.
13.\011INDEMNIFICATION. You agree to defend, indemnify and hold harmless Licensor, its suppliers and its Authorized Partners from and against liabilities, costs, damages and expenses (including settlement costs and reasonable attorney fees) arising from any claims from anybody that result from or relate to you and your contractor's use, reproduction or distribution of the Software or any permitted Applications herein.
14.\011DISCLAIMER OF WARRANTY. THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER, LICENSOR SPECIFICALLY DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR 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 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 SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE ("HIGH RISK ACTIVITIES"). LICENSOR AND ITS LICENSOR SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. If a jurisdiction applicable to this Agreement 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 sixty (60) days from the date of Delivery; and (B) Licensor's total liability to Licensee for breach of all such warranties are limited to the amount stated in Section 15 (Limitation on Liability).
15.\011LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR'S TOTAL AGGREGATE AND CUMULATIVE LIABILITY (IF ANY) TO YOU FOR ANY AND ALL CLAIMS OF ANY KIND ARISING HEREUNDER EXCEED THE AMOUNT OF LICENSE FEES ACTUALLY PAID BY YOU FOR THE SOFTWARE GIVING RISE TO THE CLAIM IN THE TWELVE MONTHS PRECEDING THE CLAIM. LICENSOR'S AND THEIR SUPPLIERS SHALL HAVE NO LIABILITY TO YOU FOR ANY DAMAGES SUFFERED BY YOU OR ANY THIRD PARTY AS A RESULT OF USING THE SOFTWARE. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL LICENSOR, OR ANY OF ITS 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 SOFTWARE, EVEN IF LICENSOR AND/OR ANY OF ITS 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. The parties agree that the limitations specified in this Section 14 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. The provisions of this Agreement allocate the risks between Licensor and you. The fees reflect this allocation of risk and the limitations of liability herein.
16.\011GENERAL. (A) Each Party shall comply with all laws applicable to the actions contemplated by this EULA. You acknowledge that the Software is of United States origin, is provided subject to the U.S. Export Administration Regulations, may be subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited. you represent that (i) you are not, and are not acting on behalf of, (a) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions; or (b) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (ii) you will not permit the Software to be used for, any purposes prohibited by law, including, any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons. (B) The Software is deemed to be "commercial computer software" and "commercial computer software documentation", respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Software by the U.S. Government shall be governed solely by the terms and conditions of this EULA. However, the terms and conditions of this Agreement shall not apply to any agency procuring this Software on behalf of the U.S. Government solely for the U.S. Government's use. (C) The Parties to this EULA are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent. (D) This Agreement is personal to you. You may not transfer, assign or otherwise convey, novate or encumber this Agreement or the Software, in whole or in part, to any other party, including any parent, subsidiary or affiliated entity, whether through a Change of Control which is voluntary or involuntary, by Merger, consolidation, dissolution, operation of law, or any other manner without Licensor's express written consent. For purposes of this Section 15(D), (i) a "Change of Control" shall include, but not be limited to, any merger, consolidation, amalgamation, reorganization or sale, transfer or exchange of the capital stock or equity interests of Licensee in a transaction or series of transactions which results in the holders of Licensee's capital stock or equity interests holding less than fifty percent (50%) of the outstanding capital stock or equity interests immediately following such transaction(s); and (ii) "Merger" refers to any merger in which the Licensee participates, regardless of whether it is the surviving or disappearing entity. Further, you may not delegate any performance under this Agreement without Licensor's express written consent. Any purported assignment of rights or delegation of performance in violation of this Section 16(D) is void. Licensor may assign its rights and obligations under this Agreement (in whole or in part) without your consent. (E) 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. (F) This EULA, and all disputes arising out of or relating to this EULA, shall be governed by, and construed and interpreted in accordance with, the laws of the State of North Carolina excluding (i) its conflicts or choice of law rules; (ii) the United Nations Convention on Contracts for the International Sale of Goods; and (iii) the Uniform Computer Information Transactions Act, or any version, adopted by any state. Except for a request 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 Orange County, North Carolina. (G) Neither Party will be responsible for any failure or delay in its performance under this EULA due to causes beyond its reasonable control, including, but not limited to, general strikes or lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, natural disasters or governmental action. (H) 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 the EULA and all remaining provisions will continue in full force. (I) This EULA including any website links, exhibits, and Order Forms is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No provision of any sales order, purchase order or other business form, including any electronic invoicing portals and vendor registration processes, employed by you will supersede the terms and conditions of this EULA, and any such document shall be for administrative purposes only and shall have no legal effect. Notwithstanding the foregoing, Licensor may, from time to time, update the Licensor EULA with New Releases of the Software. The version of the Licensor EULA that applies to you is the version that is contained in the Software you are currently using. (J) Any and all notices, requests, demands and other communications required or otherwise contemplated to be made under this EULA shall be in writing and in English and shall be deemed to have been duly given (i) if delivered personally, when received; (ii) if transmitted by facsimile, upon receipt of a transmittal confirmation; (iii) if sent by certified mail, return receipt requested, postage prepaid, on the date indicated on the return receipt; (iv) if by international courier service, on the delivery date as may be confirmed to the sender by such courier service; or (v) if by E-mail, when the recipient, by an E-mail sent to the E-mail address for the sender as specified on the Order Form or by a notice delivered by another method in accordance with this section, acknowledges having received that E-mail, with an automatic "read receipt" not constituting acknowledgment of an E-mail for purposes of this section. All such notices, requests, demands and other communications shall be addressed as specified on the Order Form. (K) You agree that Licensor may collect, maintain, process and use diagnostic, technical and related information, including non-personal information related to your device, computer, system, application software, or peripherals to facilitate the provision of Software Updates, product support and compliance verification, and otherwise to improve the Software and other software products and delivery of related services. (L) The Software does not contain any third-party technology. However, the Software may be used by you to connect to or integrate with technology owned or controlled by a person or entity other than Licensor and such activity may subject you to a service or license agreement with such person or entity. You agree to look solely to such third party with respect to any such service or license agreement. (M) Regardless of any language into which this Agreement may be translated, the official, controlling and governing version of this Agreement shall be exclusively the English language version. (N) You agree to be identified as a customer of Licensor, and agrees Licensor may refer to you by name, trade name and/or trademark (and such references shall in no case constitute an infringement of any such trade names or trademarks, as the case may be), whether standing alone, or as part of a list of customers of Licensor, at Licensor's choice; and further, Licensor may briefly describe your business in Licensor's marketing materials, on Licensor's web site, in public or legal documents, provided in each case, that any such description shall not include any information expressly identified by you as trade secret. Further, you agree that Licensor can use the information provided during the purchase of the Software to deliver and confirm your purchase or for other relevant purposes, as well as contact you again about other products, services, or offers. It is understood and agreed that the right and license to use your name, trade name and/or trademark, as the case may be, is granted to Licensor solely for the purposes as set out in this Section 16.
EXHIBIT A - LICENSE TYPES
The Software is offered in the following license types pursuant to the specific grant and restrictions set forth below and noted on the Order Form. The following license types may also be available as Site licenses if noted on the Order Form. As used herein the following capitalized terms have the following meaning: "Affiliate" means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a Party, where "control" is the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise. "Application" means any application, program or other software that Licensee develops using the Software. "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 environment. "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 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. "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 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 Software as a component; (B) use or execute any Software programs for development, testing, or support purposes; (C) package or otherwise prepare Software components for redistribution as part of another program or application; or (D) have possession of any Software resources or files for any purposes other than archiving. "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). "Machine" means an attended or remotely controlled desktop, workstation or computer where the Software is loaded, that is operated by no more than one person at a time. "New Release" means new releases of the Software where the number to the left of the first "." in the product designation is changed by Licensor (e.g. "16.0.6360.0" is changed to "17.0.6360.0"). "Non-Commercial" means any use of the 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 Software. "Non-Production" means a non-operational environment into which the 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. "Order Form" means any of the following (A) online purchase transaction from the Licensor's website; (B) a purchase order or other written order form from you and accepted by Licensor in e-mail confirmation or by releasing Product Keys to you; (C) a quotation issued by Licensor and signed by you; (D) any document accepted by and between a Licensor reseller or distributor pursuant to which you may order Software from Licensor; (E) an invoice issued by Licensor; or (F) any other document that references this EULA and is agreed to by Licensor in writing. All Order Forms are incorporated herein and governed by this Agreement. "Production" means an operational environment into which the 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. "Software" means the specific version of the Licensor proprietary software product for which you are granted a Product Key, in object code form only, licensed to you under this Agreement, including all documentation, Updates and all copies made by you. "Server" means a physical or virtual machine which has a server operating system and/or where more than one person can simultaneously use the computer either by direct or remote access. "Site" means the single physical location that corresponds to a single physical mailing address, where your Developers are licensed to use the Software under Exhibit A as designated in the Order Form. "Update" collectively means all successor upgrades, revisions, patches, enhancements, fixes, modifications, additions or maintenance releases of the Software where any number to the right of the first "." in the product designation is changed by Licensor (e.g. "16.0.6355.0" is changed to "16.0.6360.0), if any, licensed to you by the Licensor but does not include New Releases. "Use" means to run, view, print, update, utilize, access, download, store, load, install, execute, display, or copy the Software into the memory of a computer or otherwise benefit from using the functionality of the Software in accordance with its documentation. "User" means any named identifiable individual person, not necessarily named at the time of a license grant, regardless of whether or not the individual is authorized by Licensee and actively Using the Software at any given time.
I.\011Non-Commercial License. Subject to the Term specified in the Order Form and your payment of license fees, Licensor grants you a non-transferable, non-sublicensable, non-exclusive, worldwide right and license to install and Use the specific version of the Software purchased solely for Non-Commercial purposes on one (1) Desktop/Workstation.
II.\011User License. Subject to the Term specified in the Order Form and your payment of license fees, Licensor grants you a non-transferable, non-sublicensable, non-exclusive, worldwide right and license for one (1) User to install and Use the specific version of the Software purchased on any number of Desktop/Workstation(s) owned or controlled by you, for internal purposes only. Twice per year, with approval from Licensor, a single Software license may be re-allocated to another User in the event that the original User is no longer employed by you or has been assigned to a new role where access to the Software will no longer be required on a permanent basis.
III.\011Development License. Subject to the Term specified in the Order Form and your payment of license fees, Licensor grants you a non-transferable, non-sublicensable, non-exclusive, worldwide right and license for one (1) Developer to install and Use the specific version of the Software purchased on any number of Desktop/Workstations or Non-Production Servers owned or controlled by the named Developer for Non-Production purposes. For the avoidance of doubt, you are not granted any right to distribute or deploy any product, including but not limited to Application(s) which may be developed by or for you under this Software license. Twice per year, with approval from Licensor, a single Software license may be re-allocated to another Developer in the event that the original Developer is no longer employed by you or has been assigned to a new role where access to the Software will no longer be required on a permanent basis.
IV.\011Desktop/Workstation License. Subject to the Term specified in the Order Form and your payment of license fees, Licensor grants you a non-transferable, non-sublicensable, non-exclusive, worldwide right and license to install and Use the specific version of the Software purchased on one (1) Desktop/Workstation for Production or Non-Production purposes. Under this license grant the Software may not be installed or Used on a Server. Twice per year, with approval from Licensor, a single Software license may be re-allocated to another Desktop/Workstation in the event that the assigned Desktop/Workstation is no longer functional.
V.\011Server License. Subject to the Term specified in the Order Form and your payment of license fees, Licensor grants you a non-transferable, non-sublicensable, non-exclusive, worldwide right and license to install and Use the specific version of the Software purchased on one (1) Server owned or operated by you for Production or Non-Production purposes. For the purposes of this license grant, you may Use the Software on one (1) Desktop/Workstation as a substitute for, and not in addition to, one (1) Server. For the avoidance of doubt, you are not granted any right to distribute or deploy any product, including but not limited to, Application(s) developed under this Server License without obtaining a separate license from Licensor. Twice per year, with approval from Licensor, a single Software license may be re-allocated to another Server in the event that the assigned Server is no longer functional. Notwithstanding anything in this EULA to the contrary, if you purchased BizTalk Standard: You may Use the Software solely with the Microsoft BizTalk� Standard Edition for your internal data processing and computing needs.
VI.\011ADO.NET Providers. Per Developer License Grant: Subject to your payment of license fees, Licensor grants you a perpetual, non-transferable, non-sublicensable, non-exclusive, worldwide right and license for one (1) Developer to install and Use the specific version of the Software purchased on any number of Desktop/Workstations or Non-Production Servers owned or controlled by the named Developer in order to create, develop and test Applications; AND a Royalty-Free Distribution License: Solely during the Subscription Term, subject to the Order Form and your payment of annual subscription license fees, Licensor grants you a non-transferable, non-sublicensable, non-exclusive, royalty-free worldwide right and license to distribute compiled Desktop/Workstation, Server or mobile Applications developed by or for you, which use the Software as a run-time component, to internal Desktop/Workstations and ASP.NET applications within your organization, without owing additional fees to Licensor. For the avoidance of doubt, if you are not Using the Software to develop an Application, please see Licensor about purchasing a Server license. Termination: Upon expiration or termination of this Agreement by you or by Licensor for cause or non-payment of renewal subscription license fees, Updates and New Releases shall cease and the Per Developer license grant set forth herein and any sublicenses to use the Software as a run-time component as part of your Application, granted by you to your end users prior to expiration or termination shall survive, however, the Royalty Free Distribution license grant herein will immediately terminate and you will immediately cease distributing or deploying Application(s).