Server
License
| XANDROS SERVER SOFTWARE |
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| LICENSE AGREEMENT |
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| IMPORTANT: CAREFULLY READ THIS LICENSE AGREEMENT BEFORE USING THIS PRODUCT. |
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| CLICKING ON THE “ACCEPT” OR “YES” BUTTON IN RESPONSE TO THE ELECTRONIC LICENSE AGREEMENT ENQUIRY AS TO ACCEPTANCE OF THE TERMS OF THIS LICENSE AGREEMENT, INSTALLING OR DOWNLOADING THE SOFTWARE, INDICATES ACCEPTANCE OF AND AGREEMENT TO, AND LEGALLY BINDS YOU (“CUSTOMER”) AND XANDROS, INC, (ON ITS OWN BEHALF AND ON BEHALF OF ITS SUBSIDIARY, XANDROS CORPORATION) (COLLECTIVELY “XANDROS”) TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT (INCLUDING ANY TERMS, CONDITIONS AND RESTRICTIONS CONTAINED IN ANY QUOTE ISSUED BY XANDROS RELATING TO THE SOFTWARE). IF THE CUSTOMER DOES NOT ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT THEN EITHER DO NOT DOWNLOAD, INSTALL OR OTHERWISE USE THE SOFTWARE. |
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| 1. | Definitions |
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| The following terms shall have the following meanings when used herein: |
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| (a) | “Authorized Desktop OS Software” means an operating system software program supported by the Software, as set out from time to time in the Xandros price list. | |
| (b) | “Bankruptcy Event” means the occurrence of any one or more of the following events in respect of party hereto: | |
| (i) | a receiver, liquidator or agent or similar officer is appointed for its business, property, affairs or revenues and such proceedings continue for 60 days; or | |
| (ii) | it admits in writing its inability to pay its debts generally as they come due, becomes insolvent, files a petition in bankruptcy or is adjudicated bankrupt, or enters or commences composition, restructuring, debt settlement, rearrangement, liquidation, winding up or similar proceedings, makes an assignment for the benefit of its creditors or another arrangement of similar import; or | |
| (iii) | proceedings under bankruptcy, composition, restructuring, rearrangement, liquidation (if commenced against it) or similar insolvency laws are commenced and are not dismissed within 60 days; or | |
| (iv) | it ceases to carry on business in the ordinary course. | |
| (c) | “Documentation” means the user manuals and other written materials which describes the Software, its operation and matters related to its use and which Xandros generally makes available to its commercial licensees for use with the Software, including any updated, improved or modified version(s) of such materials, whether provided in published written material, on magnetic media or communicated by electronic means. | |
| (d) | “Management License” means a license to use the Software to access and manage Xandros Desktop Operating System software, Xandros Server software, or other Authorized Desktop OS Software, running on a computer connected by way of a network to the Server on which the Software is installed and running. | |
| (e) | “Server” means a computer device or virtualized computer environment that contains information, software, documentation and/or data that are accessible to other computers through a network or other connection. | |
| (f) | “Software” means Xandros’ proprietary “Xandros Server” software. | |
| (g) | “Third Party Software” means software programs included with the Software but which are licensed under a separate license agreement. | |
| (h) | “Use” means installing all or any portion of the Software onto a computer or Server and/or loading data into or displaying, viewing or extracting output results from or otherwise operating any portion of the Software in accordance with the terms and conditions hereof. |
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| 2. | License |
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| (a) | Subject to Customer’s payment of the Fees in accordance with Section 5 hereof, and subject to the terms, conditions, restrictions and limitations set forth herein, Xandros hereby grants to the Customer a perpetual, non-exclusive, worldwide right and license to access and Use the Software and the Documentation relating thereto as is reasonably necessary for Customer’s productive Use of the Software. The Software may only be installed on a single Server; however, where virtualization or emulation technology is used, multiple instances of the Software may be run on a single physical Computer. | |
| (b) | If the Software includes remote operating system deployment and management features, Customer shall purchase one Management License for each Server that is deployed or managed by the Software. | |
| (c) | The Third Party Software included in the Software is distributed under the terms of the GNU General Public License (“GPL”) and other similar license agreements that permit the user to copy, modify and redistribute such Third Party Software. Please review the terms and conditions of the license agreement that accompanies the Third Party Software. |
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| (d) | In addition to the freely distributable Third Party Software, some versions of the Software may also include Third Party Software that is not distributed under the terms of the GPL or similar licenses that permit modification and redistribution. Generally, each of these Third Party Software programs is distributed under the terms of a license agreement that grants the licensed user a license to install each of the Third Party Software on a single computer for the user’s own individual use. Copying, redistribution, reverse engineering, decompiling and/or modification of these Third Party Software programs is prohibited. Any violation by the user of the applicable license terms shall immediately terminate the license to use such Third Party Software. In order to view the complete terms and conditions that govern the use of Third Party Software, please consult the license agreement that accompanies each of the Third Party Software programs. If You do not agree to comply with and be bound by the terms of the applicable license agreements, do not install, distribute or otherwise use the relevant Third Party Software. If You wish to install these Third Party Software programs on more than one computer, please contact the vendor of the program to inquire about purchasing additional licenses. |
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| 3. | Restrictions |
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| (a) | The Software, whether provided in source code or object code form, including without limitation, the specific design, structure and logic of individual programs, their interactions both internal and external, and the programming techniques employed therein are considered confidential and trade secrets of Xandros and/or its licensors (the “Confidential Information”), the unauthorized disclosure of which would cause irreparable harm to Xandros. The Customer shall use the same degree of care and means that it uses to protect its own information of a similar nature, and in any event, shall use reasonable efforts to prevent the disclosure of Confidential Information to any third parties. The Customer shall not use, reproduce or distribute the Confidential Information other than for the purposes authorized by this agreement. This confidentiality obligation shall continue to apply to the Confidential Information following the termination hereof, provided that the confidentiality provisions contained herein shall not apply to Confidential Information which (i) was known by the Customer prior to disclosure, as evidenced by its business records; (ii) was lawfully in the public domain prior to its disclosure, or becomes publicly available other than through a breach of the confidentiality provisions contained herein; (iii) was disclosed to the Customer by a third party, provided such third party or any other party from whom such third party receives such information is not in breach of any confidentiality obligation in respect of such information; (iv) is independently developed by the Customer, as evidenced by its business records; or (v) is disclosed when such disclosure is compelled pursuant to legal, judicial, or administrative proceeding, or otherwise required by law, provided that the Customer shall give all reasonable prior notice to Xandros to allow it to seek protective or other court orders. | |
| (b) | The Customer shall not: (i) Use the Software and Documentation for any purpose other than Customer’s own internal business purposes and other than as authorized by this agreement; (ii) except as expressly authorized herein, make any copies of the Software except as may be necessary for archival purposes only; (iii) reverse engineer, disassemble, reverse translate, decompile, or in any other manner decode the object code for the Software in order to derive the source code form, or decode any passwords or encrypted license or installation keys that have been provided to the Customer by Xandros in order to enable the execution of the Software on unauthorized equipment, or for any other reason do or attempt to do any of the foregoing; (iv) assign (by operation of law or otherwise) or transfer this agreement or the Customer’s interest in or rights under this agreement, or attempt to do so or enter into any agreement to do so with any other party, without the prior written agreement of Xandros, and any such assignment or attempted assignment shall be null and void and shall result in the automatic termination of this agreement; (v) except as expressly provided herein, or unless expressly authorized by Xandros in writing, sublicense, distribute, transfer, loan, use, lease or otherwise make available the Software and Documentation or any part thereof to any third party; or (vi) remove any copyright notices, trade-marks, or any other proprietary legends and/or logos of Xandros or its licensors appearing on the Software or the Documentation. |
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| 4. | Proprietary Rights |
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| (a) | The Software Product is confidential and copyrighted. Title to the Software and all intellectual property rights therein and relating thereto is retained by Xandros and/or its licensors. The Customer may not make copies of the Software. No right, title or interest in or to any trade-mark, service mark, logo or trade name of Xandros or its licensors is granted under this Agreement. | |
| (b) | All title and intellectual property rights in and to the content which may be accessed through use of the Software is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This agreement grants the user no rights to use such content. |
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| 5. | Fees |
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| (a) | Customer shall pay Xandros the fees (“Fees”) set out in its then current price list. Past due amounts shall be subject to a monthly service charge of one and one-half percent (1 1/2%) per month of the unpaid balance or the maximum rate allowable by law. In addition to all other sums payable hereunder, Customer shall pay all reasonable out-of-pocket expenses incurred by Xandros, including fees and disbursements of counsel, in connection with collection and other enforcement proceedings resulting therefrom or in connection therewith. | |
| (b) | All Fees are net of applicable taxes. Customer will pay or reimburse all taxes, duties and assessments, if any due, based on or measured by amounts payable to Xandros in any transaction between Customer and Xandros under this Agreement (excluding taxes based on Xandros’ net income) together with any interest or penalties assessed thereon, or furnish Xandros with evidence acceptable to the taxing authority to sustain an exemption therefrom (collectively, “Taxes”). |
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| 6. | Reports and Audit |
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| (a) | Customer must use a commercially reasonable process to ensure that the Software is Used in accordance with the terms, conditions, limitations and restrictions contained herein. Customer will, upon the request of Xandros, certify in writing to Xandros that the Software is being used in accordance with this Agreement. Customer will provide to Xandros reports on the usage of the Software upon the written request of Xandros. Each report will be delivered not later than twenty (20) business days following receipt of a written request therefor from Xandros. | |
| (b) | Upon request, Customer will certify in writing that it is using the Software in accordance with the terms, conditions, limitations and restrictions contained in this Agreement. Xandros shall have the right, with reasonable notice and during normal business hours, at Xandros’ sole expense (except as set forth herein), and in as non-disrupting a manner as reasonably possible, to verify Customer’s compliance with its obligations hereunder. Xandros may use the audit report solely to enforce its rights hereunder and shall otherwise treat it as Confidential Information. In the event that the audit establishes that the Customer is in material breach of its obligations hereunder, the Customer shall reimburse Xandros for the cost of the audit and shall promptly pay all license fees owing to Xandros. |
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| 7. | Limited Warranty |
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| EXCEPT WHERE SPECIFICALLY STATED OTHERWISE IN THIS AGREEMENT, THE SOFTWARE, INCLUDING WITHOUT LIMITATION THE THIRD PARTY SOFTWARE, IS PROVIDED TO THE USER ON AN “AS IS” BASIS, WITHOUT ANY OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE QUALITY, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF XANDROS DESKTOP OS IS ASSUMED BY THE USER. |
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| 8. | Limitation of Liability |
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| NEITHER XANDROS NOR ITS DEALERS, SUPPLIERS OR LICENSORS SHALL HAVE ANY LIABILITY TO THE CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF XANDROS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. XANDROS IS ALSO NOT RESPONSIBLE FOR CLAIMS BY A THIRD PARTY. THE MAXIMUM AGGREGATE LIABILITY OF XANDROS (INCLUDING ITS LICENSORS, DEALERS AND SUPPLIERS)TO THE CUSTOMER SHALL NOT EXCEED THE AMOUNT PAID BY THE CUSTOMER FOR THE SOFTWARE. THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR A FUNDAMENTAL BREACH. SOME STATES/COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. |
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| 9. | Term and Termination |
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| (a) | Term. This Agreement is entered into as of the Effective Date and shall continue until terminated in accordance with the terms hereof. | |
| (b) | Termination. | |
| (i) | This Agreement may be terminated by Xandros: (i) if Customer fails to pay when due all or any portion of any amounts payable hereunder, and such failure is not cured within ten (10) days after written notice; or (ii) immediately if Customer breaches any provisions of Section 3 hereof; or (iii) in the event of a material breach by Customer of any other provision of this Agreement where Customer fails to correct such breach within thirty (30) days of its receipt of written notice thereof; or (iv) immediately upon the occurrence of a Bankruptcy Event in respect of the Customer. | |
| (ii) | This Agreement may be terminated by the Customer upon sixty (60) days prior written notice to the other. | |
| (c) | Effect of Termination. Termination of this Agreement shall simultaneously terminate the licenses granted in Section 2 hereof. Within thirty (30) days after the termination of this Agreement, Customer shall: (i) furnish Xandros written notice certifying that the original and all copies, including partial copies, of the Software furnished by Xandros under this Agreement or made by Customer as permitted by this Agreement, have either been returned to Xandros or destroyed and no copies or portions thereof remain in the possession of Customer, its employees, contractors or agents; and (ii) make prompt payment in full to Xandros for all amounts then due, together with any applicable Taxes. | |
| (d) | Survival. Sections 3, 4, 7, 8 and 10 shall survive expiration or termination of this Agreement. |
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| 10. | General |
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| (a) | No waiver by either of the parties hereto of any breach of any condition, covenant or term hereof shall be effective unless it is in writing and it shall not constitute a waiver of such condition, covenant or term except in respect of the particular breach giving rise to such waiver. | |
| (b) | This agreement contains the whole of the agreement between the parties hereto concerning the matters provided for herein and there are no collateral or precedent representations, warranties, agreements or conditions not specifically set forth in this agreement and none have been relied on by either party as an inducement to enter into this agreement. This agreement supersedes any prior proposal, representation or understanding between the parties hereto. | |
| (c) | This agreement shall be governed by the laws of the Province of Ontario. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this agreement or the transactions contemplated hereunder. | |
| (d) | This agreement has been prepared and drawn up in the English language. In the event that this agreement is translated into any other language and in the event of a discrepancy in the interpretation between the English text and the text of the other language, the English text shall govern. | |
| (e) | If any provision of this agreement is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed from this agreement and the remaining provisions shall continue in full force and effect. | |
| (f) | This agreement shall enure to the benefit of and be binding upon You and Xandros and your respective heir, executors, successors and permitted assigns. |
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| Should there be any questions concerning this agreement, or desire to contact Xandros for any reason, please see our contact information at www.xandros.com/about/contact.html. |
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| Copyright (c) 2002-2007 Xandros Corporation. “Xandros” is a trademark of Xandros, Inc. All Rights Reserved. | ||
TOLIS Group, Inc.
LICENSE AGREEMENT
This License Agreement (“Agreement”), provided by TOLIS Group, Inc. (“TOLIS”), governs the use of the object code version of the BRU brand computer software, documentation and materials accompanying this Agreement or otherwise provided in connection herewith (collectively, “Software”), owned by TOLIS, by the person or entity (“Client”) that has clicked on the “Agree” button within the installer. For purposes of this Agreement, Software may be the BRU Server server, agent, or console component.
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IF YOU DO NOT AGREE WITH THE TERMS THAT FOLLOW, YOU MUST SELECT THE “DISAGREE” OPTION IN THE INSTALLER AND YOU MUST NOT USE THE SOFTWARE.
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1. LICENSE AND USE RESTRICTIONS.
Subject to all other terms of this Agreement including the payment of any applicable fees, TOLIS hereby grants to Client a non-exclusive, non-transferable license, without the right to grant sub-licenses, to use one (1) copy of the Software solely for Client’s own, internal purposes. The foregoing license includes the right of Client to make a reasonable number of copies of the computer programs contained in the Software solely for backup and archival purposes; provided, however, that all such copies shall be deemed Software for purposes of this Agreement. The foregoing license shall terminate immediately and without notice for any breach of this Agreement by Client, including any failure to pay fees when due. Upon any such termination, Client shall immediately destroy or delete any and all Software and promptly confirm in writing that Client has done so.
Transferability to a new computer system is permitted when the original system upon which a given license is currently installed is to be retired, decommissioned, or otherwise taken out of daily utilization by the originally licensed client. It is permissible to retain use of the licensed software on the original system for a period of overlap required to allow the transfer of data from the original system to the replacement system. Once the license has been transferred to the replacement system and the replacement system is placed in normal use, the license must be removed from the original system. At no other time is it allowable to utilize the same software license on two or more different computers at the same time.
The Software is and shall remain the sole and exclusive confidential and proprietary property of TOLIS, subject to protection under the intellectual property laws of the United States and those throughout the world. Client agrees not to use or disclose the Software, during and after the term of this Agreement, except as expressly permitted by this Agreement. Client further agrees not to modify the Software, remove any notices or markings on the Software, or reverse compile, reverse assemble, reverse engineer or otherwise attempt to learn or disclose the trade secrets contained in the Software, transfer the Software in whole or in part over a network, or permit any third party to do any of the foregoing. Nothing in this Agreement shall be construed as conferring any license under any of TOLIS’ intellectual property rights, whether by estoppel, implication, or otherwise, except for those licenses expressly granted herein.
2. WARRANTY AND DISCLAIMER.
TOLIS warrants that for a period of sixty (60) days from the date of receipt by Client of the Software, the media on which the Software was delivered shall be without defects in materials or workmanship. TOLIS agrees to replace any defective media which is returned to TOLIS within the foregoing sixty (60) day period. TOLIS may make available to Client additional services, including updates, enhancements or improvements of or to the Software, under separate written agreement, and for additional payment.
THE FOREGOING WARRANTY IS THE ONLY WARRANTY GIVEN HEREUNDER. EXCEPT AS OTHERWISE PROVIDED ABOVE, THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY WHATSOEVER. ALL EXPRESS, IMPLIED OR STATUTORY CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE DISCLAIMED. Some states do not allow the disclaimer of implied warranties, so the foregoing limitations may not apply to you.
3. LIMITATION OF LIABILITY.
TOLIS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SOFTWARE, REGARDLESS OF WHETHER ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF TOLIS HEREUNDER EXCEED THE SUM OF ONE HUNDRED DOLLARS ($100), REGARDLESS OF THE CAUSE OF ACTION, IN TORT, CONTRACT OR OTHERWISE.
4. GENERAL.
Any action related to this Agreement shall be governed by the substantive laws of the State of Arizona, without regard to conflicts of law principles. The State and Federal courts located in Maricopa County, Arizona, shall have sole jurisdiction over any dispute arising hereunder, and the parties hereby consent to the personal jurisdiction of such courts. Neither this Agreement, nor any rights hereunder, may be assigned by operation of law or otherwise, in whole in part, by Client without the prior, written permission of TOLIS. Any sale of more than fifty percent (50%) of the common voting stock of, or other right to control, Client shall be deemed an assignment. Any purported assignment without such permission shall be void. Any waiver of any rights of TOLIS under this Agreement must be in writing, signed by TOLIS, and any such waiver shall not operate as a waiver of any future breach of this Agreement. In the event any portion of this Agreement is found to be illegal or unenforceable, such portion shall be severed from this Agreement, and the remaining terms shall be separately enforced. The parties agree that any breach or threatened breach of this Agreement by Client is likely to cause TOLIS damage that is not fully reparable by payment of damages, and further agree that in such case TOLIS shall be entitled to seek and obtain injunctive or other equitable relief to protect its rights hereunder. Client’s performance hereunder and use of the Software shall at all times comply with all applicable laws, rules and regulations, including those governing export of technical information, and Client shall fully indemnify, defend and hold harmless TOLIS against any violation thereof. This Agreement is the entire agreement between the parties with respect to this subject matter, and supersedes any and all prior or contemporaneous, conflicting or additional communications, negotiations or agreements.
Thank you for doing business with TOLIS Group, Inc.
TOLIS Group, Inc.
9495 East San Salvador Dr.
Suite 250
Scottsdale, AZ 85258
[email protected]
REALNETWORKS, INC.
END USER LICENSE AGREEMENT
HELIXTM SERVER BASIC – FREE
REDISTRIBUTION NOT PERMITTED
IMPORTANT — READ CAREFULLY: This RealNetworks License Agreement (“License Agreement”) is a legal agreement between you (either an individual or an entity) and RealNetworks, Inc. and its suppliers and licensors (collectively “RealNetworks”) for RealNetworks’ Helix Server Basic, which includes computer software and associated media and printed materials, whether provided in physical form or received on-line in electronic form (“Software”). You may install only ONE copy of the Software. By choosing “Accept,” installing, copying or otherwise using the Software, you agree to be bound by the terms of this License Agreement. If you do not agree to the terms of this License Agreement, select “Cancel” or “No” and/or do not install the Software.
YOU AGREE THAT YOUR USE OF THE SOFTWARE ACKNOWLEDGES THAT YOU HAVE READ THIS LICENSE, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
ANY THIRD PARTY SOFTWARE, INCLUDING ANY NON-REALNETWORKS PLUG-IN, THAT MAY BE PROVIDED WITH THE SOFTWARE IS INCLUDED FOR USE AT YOUR OPTION. IF YOU CHOOSE TO USE SUCH SOFTWARE, THEN YOUR USE SHALL BE GOVERNED BY SUCH THIRD PARTY’S LICENSE AGREEMENT, AN ELECTRONIC COPY OF WHICH WILL BE INSTALLED IN THE “LICENSE” FOLDER UNDER THE DIRECTORY ON YOUR COMPUTER IN WHICH YOU CHOOSE TO INSTALL THE SOFTWARE.
1. ELIGIBILITY FOR THIS LICENSE. This license is only available to the following organizations:
(a) Corporations, educational institutions, government organizations or not-for-profit organizations who deploy the server for their own internal non-commercial use. Wireless Network service providers or wireless network operators may not deploy this Software within their network(s).
(b) End User Network Service Providers of less than 200,000 subscribers. As used in this License Agreement, “End User Network Service Providers” means an entity that provides data network services to consumers or individuals.
(c ) Media Companies with less than $5M in annual revenue. As used in this License Agreement, “Media Company” means an entity that provides text, audio or video programming to distributors or direct to consumers in exchange for fees or based on an advertising business model.
2. GRANT OF LICENSE. Subject to the provisions contained herein, RealNetworks hereby grants you a non-exclusive, non-transferable license to install and use the version of the Software specified by your server license key.
(a) Installation. You may install ONLY ONE COPY of the Software on a single computer containing no more than two central processing units (“CPU’s”) (the computer running the Software shall be referred to as the “Host Computer”). A separate license fee and server license key is required for each Host Computer.
(b) Use. You may use your installed copy of the Software to deliver Streams to end-user client computers or to other Helix Servers or Helix Proxies. A “Stream” means the stream of digitally encoded data that delivers a digital media type (e.g., RealAudio, RealVideo, Mp3, etc.) to a single end-user client computer. The number of Streams delivered by a given Host Computer is measured by counting the number of end-users simultaneously served by Streams originating at that Host Computer. You may only serve the number of concurrent Streams and the media types that are enabled by your server license key.
(c) Non-Production Use License. If you purchased a license for non-production use only, you may only install and use the Software in a non-production test environment for testing purposes only. You may not use the Software to serve streams over your general intranet or over the public Internet.
(d) Warm Stand-By Use License. If you purchased a license for warm stand-by use, this server may only be used in a production environment when the primary server is out of service. You may not use a stand-by server for load balancing or bench mark testing
(e) Attribution. You must indicate which publicly available files are in the RealAudio (.ra) or RealVideo (.rm). RealNetworks hereby grants you a non-exclusive, limited license to use RealNetworks’ trademarks in accordance with RealNetworks’ Trademark and Logo Usage Policy at http://www.realnetworks.com/company/guide/policy.html and for the sole purpose of informing Website visitors that RealAudio or RealVideo content is available at your Website. You agree not to use any RealNetworks trademark in a way that may imply that (i) you are an agency or branch of RealNetworks or (ii) that RealNetworks endorses, is affiliated with, or sponsors you or your products without RealNetworks’ express written permission. You also agree that you may not link directly to any media file or .ram file made available from the RealNetworks Website.
(f) Use of GUIDs and Cookies. If you enable the Software to utilize any global unique identifiers (GUIDs) and/or cookies placed in or contained in the RealPlayer or other RealNetworks product, RealNetworks recommends and encourages you to prominently disclose such use to your end users and customers and obtain consent to use such GUIDs and/or cookies from your end users and customers, and give each end user and customer the opportunity to opt out of your use of GUIDs and/or cookies with respect to each such end user or customer. You agree to hold harmless, indemnify and defend RealNetworks, its officers, directors and employees, from and against any losses, damages, fines and expenses (including attorneys’ fees and costs) arising out of or relating to any claims that you have inappropriately used GUIDs and/or cookies.
2. LIMITATIONS OF YOUR LICENSE.
Helix Live Transmitter (HLT). (Formerly Simulated Live Transmission Agent). You may only install one instance of HLT for every Helix Server you have purchased. If you want to install more than one instance, you must purchase an additional license.
Evaluation Software. If you have received the Software from RealNetworks for evaluation purposes, you may not use the Software beyond the time limit set by the Software license key.
Dual-Media Software. You may receive the Software in more than one medium (e.g., by electronic distribution and on CD-ROM). Regardless of the type or size of medium you receive, you may use only install one copy of the software.
No Copying. You may not copy the Software or Documentation, except that you may make a single copy of the software for archival purposes only, provided such copy must contain all of the original Software’s proprietary notices.
No Modifications or Reverse Engineering. You may not modify, translate, reverse engineer, decompile or disassemble (except to the extent that this restriction is expressly prohibited by applicable law), or create derivative works based on the Software. No Resale, Rental or Transfer. You may not rent, lease, sell, or transfer the Software or documentation without RealNetworks’ express written consent, which RealNetworks may withhold in its discretion.
Audit Rights. You shall permit RealNetworks to audit your compliance with this License Agreement, as RealNetworks deems reasonably necessary.
3. SOFTWARE OWNERSHIP. This is a license agreement and NOT an agreement for sale. Title, ownership rights and intellectual property rights in and to the Software (including any images, animations, video, audio, music, and text incorporated into the Software), accompanying printed materials, and any copies you are permitted to make herein are owned by RealNetworks or its suppliers and are protected by United States copyright law and international treaty provisions. Your rights to use the Software are specified in this License Agreement, and RealNetworks retains all rights not expressly granted to you in this License Agreement. Nothing in this License Agreement constitutes a waiver of RealNetworks’ rights under U.S. or international copyright law or any other federal or state law.
4. BETA RELEASE VERSIONS. In the event that the Software is a beta release version, the terms of this Section shall apply. Your license to use the Software expires 120 days after download (or such other period as indicated by the Software) and the Software may cease to function. The Software you are receiving may contain more or less features than the commercial release of the RealNetworks Product that RealNetworks intends to distribute. While RealNetworks intends to distribute a commercial release of the Software, RealNetworks reserves the right at any time not to release a commercial release of the Software or, if released, to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the commercial release. You agree that the Beta Release Versions are not suitable for production use and may contain errors affecting their proper operation. You agree that you will not do anything to circumvent or defeat the features designed to stop the Software from operating after the license expires.
5. UPGRADES/SUPPORT. You shall not be entitled under this License Agreement to receive any updates, upgrades, or corrections to the Software, nor any support services.
6. DISCLAIMER OF WARRANTIES/LIMITATION OF LIABILITY. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED AS IS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REALNETWORKS FURTHER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION REMAINS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL REALNETWORKS OR ITS SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE PRODUCT, EVEN IF REALNETWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. REALNETWORKS’ TOTAL LIABLIT
Y FOR ANY DIRECT DAMAGES SHALL NOT EXCEED FIVE DOLLARS ($5.00). BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
7. INDEMNIFICATION. This software is intended for use only with properly licensed media, content, and content creation tools. It is your responsibility to ascertain whether any copyright, patent or other licenses are necessary and to obtain any such licenses to serve and/or create or compress such media and content. You agree to transmit and/or compress only those materials for which you have the necessary patent, copyright and other permissions, licenses, and/or clearances. You agree to hold harmless, indemnify and defend RealNetworks, its officers, directors and employees, from and against any losses, damages, fines and expenses (including attorneys’ fees and costs) arising out of or relating to any claims that you have encoded, compressed, copied or transmitted any materials (other than materials provided by RealNetworks) in connection with the Software in violation of another party’s rights or in violation of any law. If you are importing the Software from the United Sta
tes, you shall indemnify and hold RealNetworks harmless from and against any import and export duties or other claims arising from such importation.
8. TERMINATION. This Agreement and your right to use this Software automatically terminate if you fail to comply with any material provision of this Agreement. You may terminate this License at any time by destroying or erasing your copy of the Software. Upon termination of this License Agreement, you agree to destroy or erase the Software.
9. NO ASSIGNMENT. This Agreement is personal to you, and may not be assigned without RealNetworks’ express written consent. In the event that you are an entity that merges with another entity or are acquired by another entity during the Term, you shall provide written notice of such merger or acquisition not later than the date on which any public announcement is made. If RealNetworks does not consent to assignment of this Agreement to the new or acquiring entity in such merger or acquisition, RealNetworks may terminate this Agreement on thirty (30) days’ written notice. Both parties shall perform under this Agreement until such termination is effective.
10. U.S. GOVERNMENT RESTRICTED RIGHTS. U.S. GOVERNMENT RESTRICTED RIGHTS: This Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer Software–Restricted Rights at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR supplement, as applicable. Manufacturer is RealNetworks, Inc./2601 Elliott, Suite 1000/Seattle, Washington 98121. You are responsible for complying with all trade regulations and laws both foreign and domestic. You acknowledge that none of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country subject to a U.S. embargo; or (ii) to anyone on the U.S. Treasury Department’s lis
t of Specially Designated Nationals or the U.S. Commerce Department’s Denied Parties List or Entity List. By using the Software you are agreeing to the foregoing and are representing and warranting that (i) no U.S. federal agency has suspended, revoked, or denied you export privileges, (ii) you are not located in or under the control of a national or resident of any such country or on any such list, and (iii) you will not export or re-export the Software to any prohibited county, or to any prohibited person, entity, or end-user as specified by U.S. export controls.
11. MISCELLANEOUS. (a) This License Agreement shall constitute the complete and exclusive agreement between us, notwithstanding any variance with any purchase order or other written instrument submitted by you, whether formally rejected by RealNetworks or not. The acceptance of any purchase order is you place is expressly made conditional on your consent to the terms set forth herein. The terms and conditions contained in this License Agreement may not be modified except in a writing duly signed by you and an authorized representative of RealNetworks. If any provision of this License Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. This License Agreement shall be governed by the laws of the State of Washington, without regard
to conflicts of law provisions, and you hereby consent to the exclusive (except as set forth in Section 11(b)) jurisdiction of the state and federal courts sitting in the State of Washington. Any and all unresolved disputes relating in any way to, or arising out of, the Software, your use of the Software or this License Agreement shall be submitted to arbitration in the State of Washington; except that, to the extent that you have breached or have indicated your intention to breach this License Agreement in any manner which violates or may violate RealNetworks’ intellectual property rights, or may cause continuing or irreparable harm to RealNetworks (including, but not limited to, any breach that may impact RealNetworks’ intellectual property rights, or a breach by reverse engineering), RealNetworks may seek injunctive relief, or any other appropriate relief, in any court of competent jurisdiction. Any arbitration of a dispute under this Agreement shall be conducted under the ru
les then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. This License Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
(b) If you are located in the Peoples Republic of China, and in the event that an arbitrators award in Washington is not at the relevant time recognized or enforceable through the courts of the Peoples Republic of China you agree that Real may in its sole discretion choose to pursue any dispute or claim by way of arbitration through the Arbitration Committee of China International Economic Cooperation and Trade. Both parties will accept and abide by the ruling of such arbitration and both parties shall agree that Chinese law shall apply to the explanation, implementation and dispute settlement of this Agreement and any arbitration ruling. Nothing herein shall prevent either party from applying to the courts of the Peoples Republic of China for injunctive or other interim relief.
Copyright © 1995-2005 RealNetworks, Inc. and/or its suppliers. 2601 Elliott Ave., Suite 1000, Seattle, Washington 98121 U.S.A. This product may incorporate one or more of the following: U.S. Patent # 5,793,980; U.S. Patent # 5,917,835; U.S. Patent # 6,151,634. Other U.S. patents pending. All rights reserved. RealNetworks, Helix, RealPlayer, RealAudio, and RealVideo are trademarks or registered trademarks of RealNetworks, Inc.
Scalix Xandros Edition License Agreement
The software you are installing is licensed to you under the terms of a software license agreement that govern your installation and use of the software.
DEFINITIONS
For purposes of this License Agreement (the “Agreement” ) the following terms shall have the meanings set forth below:
“Customer” means your organization, enterprise, or other association or you personally if you intend to use Scalix Xandros Edition personally.
“Documentation” means such manuals, guides, and other similar publications relating to the applicable components of the Scalix Xandros Edition Software that Scalix generally provides to its licensees from time to time.
“Premium User License” or “PUL” means a license to configure a fully-functional, MAPI-enabled, unique mailbox for a Scalix Xandros Edition Software user via Scalix Connect Software and a supported client application. Each PUL authorizes a specific, identifiable, unique user mailbox, each of which may accessed by any number of methods such as Scalix Connect software with a supported client application, independent client applications, webmail applications, handheld devices, etc.
“Premium User” means an individual permitted by Customer to access and use a fully-functional, MAPI-enabled mailbox on the Scalix Server Software.
“Scalix” means Scalix Corporation, a Delaware corporation.
“Scalix Xandros Edition Software” means the Scalix Server Software, Scalix Connect Software, Scalix Web Access Software, and related software, in executable form, as well as any patches, updates, or upgrades thereto, that Scalix provides to the Customer.
“Software Subscription Services” means those software update and upgrade services described in the section identified as “SOFTWARE SUBSCRIPTION SERVICE” herein.
“Standard User” means an individual permitted by Customer to access and use a mailbox on the Scalix Server Software via Scalix webmail applications, but specifically excluding Premium Users.
LICENSE GRANT
License Grant for Scalix Server Software. Subject to the terms and conditions of this Agreement, Scalix grants Customer a perpetual, non-exclusive, non-transferable, royalty-free, fully-paid, worldwide license (without right to sublicense) to install and use the Scalix Server Software internally in accordance with the Scalix Server Software Documentation.
Premium User License Grant. Subject to the terms and conditions of this Agreement, Scalix grants Customer a perpetual, non-exclusive, non-transferable, royalty-free, fully-paid, worldwide license (without right to sublicense) to configure that number of unique mailboxes for Premium Users as Customer has properly paid for. Further subject to the terms and conditions of this Agreement, Customer may reproduce the Scalix Connect Software in amounts necessary to enable mailbox access for Premium Users, and to install and execute the Scalix Connect Software on Premium Users‘ machines for use solely in conjunction with the Scalix Server Software.
Standard User License Grant. Subject to the terms and conditions of this Agreement, Scalix grants Customer a perpetual, non-exclusive, non-transferable, royalty-free, fully-paid, worldwide license (without right to sublicense) to configure any number of unique Standard User mailboxes.
Licensing Restriction. Customer agrees not to cause or permit the reverse engineering, translation, disassembly, or decompilation of, or otherwise to attempt to derive the source code of the Scalix Xandros Edition Software whether in whole or in part. Customer shall not itself, and shall not permit or encourage any third party to use the Scalix Xandros Edition Software on a service bureau basis, to rent, lease, distribute, transfer, or make any derivative works of or changes, modification, or enhancements to the Scalix Xandros Edition Software. Customer shall not disclose or publish performance benchmark results for Scalix Xandros Edition Software without Scalix‘s written consent. Customer shall not use the Scalix Xandros Edition Software in any manner which is a violation of law or regulation.
Proprietary Notices. Customer shall not remove, alter, efface, or obscure any copyright notices or other proprietary notices or legends from any Scalix Xandros Edition Software or other material provided hereunder, and Customer shall reproduce all such notices and legends whenever any such notices appear in the Scalix Xandros Edition Software or the Documentation.
Ownership. Except as specifically provided herein, Scalix and its licensors retain all right, title, and interest, including all intellectual property rights, in and to the Scalix Xandros Edition Software. Except for the express licenses granted in this section “LICENSE GRANT,” Scalix and its licensors reserve all rights in and to the Scalix Xandros Edition Software.
Evidence of Compliance. Upon request of Scalix, Customer shall promptly, and in any event within thirty (30) days, provide Scalix with any and all evidence reasonably necessary to confirm Customer‘s compliance with the provisions of this section “LICENSE GRANT” .
LICENSE FEES AND REPORTING
License Fees. This License Agreement is valid only if Customer (or a Partner if Customers purchases the Scalix Xandros Edition Software through a Scalix Partner) pays to Scalix the agreed-upon aggregate license fees. All such license fees are non-cancelable, nonrefundable, and non-contingent, and are payable in United States currency in accordance with the terms of sale.
Reporting and Auditing. Customer shall maintain complete, clear, and accurate accounting, user and distribution records, in accordance with generally accepted accounting practices, to support and document its use of the Scalix Xandros Edition Software pursuant to this Agreement. Customer shall, upon written request from Scalix, provide access to such records to an independent auditor chosen by Scalix for the purposes of audit and to allow such auditor to make copies and summaries of such records.
If any such audit discloses a shortfall in the reporting of the number of Scalix Xandros Edition Software User Licenses, Customer shall immediately pay all license fees and late fees associated with such shortfall and, if the shortfall is more than five percent (5%) for any period, Customer agrees to pay or reimburse Scalix for the expenses of such audit.
LIMITED WARRANTIES
Limited Warranty. Scalix warrants that for a period of ninety (90) days following delivery of the Scalix Xandros Edition Software to Customer, the Scalix Xandros Edition Software will perform substantially in accordance with the accompanying Documentation, provided that: (a) Customer remains a compliant, continuous subscriber to Software Subscription Services and has installed all patches or updates made available to Customer by Scalix; (b) Customer is using the Scalix Xandros Edition Software in accordance with Scalix‘s hardware and software guidelines; (c) any error or defect detected is reproducible by Scalix; (d) the performance issue, error, or defect does not relate to third-party software; and (e) Customer notifies Scalix of such nonconformance within the warranty period. Neither Scalix nor its licensors represent or warrant that the Scalix Xandros Edition Software will be error-free or will operate without interruption.
Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION “LIMITED WARRANTIES,” SCALIX HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SCALIX XANDROS EDITION SOFTWARE, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
SOFTWARE SUBSCRIPTION SERVICE
Software Subscription Service. So long as Customer remains a compliant, continuing subscriber to Scalix‘s Software Subscription Service, Scalix will make available to Customer all updates or upgrades to the Scalix Xandros Edition Software that it generally makes available to its subscribers. In addition, as a continuing subscriber to Scalix‘s Software Subscription Service, Customer shall have access to online documentation, Scalix-produced webcasts, and Scalix‘s online download center. From time to time Scalix may release an update that it deems an “Essential Upgrade;” in such case, Customer shall promptly replace superseded version of its Scalix Xandros Edition Software with such Essential Upgrade. Customer recognizes that the Scalix Xandros Edition Software operate as an integrated technology and therefore agrees to employ the most recent version of the Scalix Xandros Edition Software as made available by Scalix to Customer. Failure of Customer to comply with this Section will relieve Scalix of its warranty obligations, indemnification obligations, and limit any liability of Scalix or its licensors for any resulting damages, to the extent such damages would have been avoided by Customer‘s compliance. If Customer ceases to subscribe to the Software Subscription Service, Customer may reenroll only by paying all of the subscription service fees Customer would have paid had Customer‘s subscription not lapsed.
SUPPORT SERVICES
Support Services. Scalix offers a variety of Support Services as detailed on the Scalix website and in promotional materials from time to time.
INDEMNIFICATION
Indemnity. Scalix shall defend or settle and pay any damages finally awarded, claims, costs, and fees (including reasonable attorneys‘ fees) with respect to any third-party claims brought against Customer that the Scalix Xandros Edition Software as used within the scope of this Agreement infringes any trade secret or United States copyright of any third party, provided that (a) Customer notifies Scalix promptly in writing of the claim; (b) Scalix has sole control of the defense and all related settlement negotiations; and (c) Customer provides Scalix with all necessary assistance, information, and authority to perform these duties. To the extent that any delay by Customer in notifying Scalix results in any cost, expense, or liability to Scalix which would otherwise have been avoided, Scalix shall be relieved of its obligation to indemnify and shall be entitled to deduct such amount from sums paid or collect such amount from Customer.
Exclusions. Neither Scalix nor its licensors shall have any liability for any claim of infringement based on or arising from (a) use of any version other than the latest commercially available version of the Scalix Xandros Edition Software made available to Customer, to the extent the infringement would have been avoided by use of such version; (b) modification of the Scalix Xandros Edition Software by Customer or any third party; (c) use of the Scalix Xandros Edition Software which exceeds the licenses granted by Scalix hereunder; or (d) the combination or use of the Scalix Xandros Edition Software furnished hereunder with materials not furnished by Scalix to the extent such infringement would have been avoided by use of the Scalix Xandros Edition Software alone.
Remedies. In the event the Scalix Xandros Edition Software is held to, or Scalix believes is likely to be held to, infringe any third-party intellectual property rights, Scalix shall have the right at its sole option and expense to (i) substitute or modify the Scalix Xandros Edition Software so that it is non-infringing, while retaining substantially equivalent features and functionality as set forth in the Documentation; (ii) obtain for Customer a license to continue using the Scalix Xandros Edition Software under commercially reasonable terms; or (iii) if (i) and (ii) are not reasonably practicable as determined by Scalix, terminate this Agreement as to the infringing Scalix Xandros Edition Software and return to Customer the license fees paid to Scalix with respect thereto, depreciated on a 5-year straight-line basis from the Effective Date in full and complete satisfaction of Scalix‘s and its licensors‘ liability hereunder.
Sole Obligation. The foregoing indemnity states the sole obligation and exclusive liability of Scalix and its licensors, and Customer‘s sole recourse and remedy, for any claim of infringement of an intellectual property right or proprietary right by the Scalix Xandros Edition Software.
TERM AND TERMINATION
Term. This Agreement shall become effective on the earlier of (1) the purchase date of the license between Scalix and Customer, and (2) the installation of the Scalix Xandros Edition Software, and shall remain in effect unless terminated as permitted by this Agreement.
Termination. If at any time, either party defaults in a payment or other material obligation under this Agreement and, in the case of breaches capable of cure (other than the payment of license or other fees payable to Scalix), fails to completely cure such default for a period of thirty (30) days after written notice of default from the non-breaching party, the non-breaching party may immediately terminate this Agreement, upon written notice of termination given to the defaulting party. Scalix may terminate this Agreement by written notice immediately upon any breach of sections “LICENSE GRANT,” “LICENSE FEES AND REPORTING,” and “CONFIDENTIALITY.” This Agreement shall terminate upon the election of and notice from a party to the other if the other party is adjudged insolvent or bankrupt, or the institution of any proceedings by or against the other party seeking relief, reorganization or arrangement under any laws relating to insolvency, or any assignment for the benefit of creditors, or the appointment of a receiver, liquidator or trustee of any of the other party‘s property or assets, or the liquidation, dissolution or winding up of the other party‘s business.
Effect of Termination. Upon termination of this Agreement for any reason, (i) all rights and licenses granted to Customer shall automatically terminate, and (ii) Customer shall certify to Scalix that all of the Scalix Xandros Edition Software and Documentation in Customer‘s possession has been destroyed or erased from Customer‘s equipment. Sections “DEFINITIONS,” “LICENSE FEES AND REPORTING,” “LIMITED WARRANTIES,” “INDEMNIFICATION,” “CONFIDENTIALITY,” “LIMITATION OF LIABILITY,” and “MISCELLANEOUS,” and subsections “Proprietary Notices,” “Ownership,” and “Effect of Termination” shall survive any expiration or termination of this Agreement. Except as expressly provided otherwise in this Agreement, (i) all remedies available to either party are cumulative and not exclusive; and (ii) termination of this Agreement or any license shall not limit either party from pursuing other remedies available to it, including injunctive relief. Upon termination, all amounts owed under this Agreement shall immediately become due and payable.
CONFIDENTIALITY
Definition. For purposes of this Agreement, “Confidential Information” of a party means non-public information or materials disclosed or otherwise provided by such party (“Disclosing Party” ) to the other party (“Receiving Party” ) that are identified as confidential or proprietary. This Agreement is expressly included in the definition of “Confidential Information.” Confidential Information does not include that which (i) was known to the Receiving Party, without restriction and without duty of confidentiality, at the time of disclosure, as evidenced by the written records of Receiving Party, (ii) is or becomes part of public knowledge other than as a result of any action or inaction of the Receiving Party, (iii) is obtained by the Receiving Party from an unrelated third party without a duty of confidentiality, or (iv) is independently developed by the Receiving Party without reliance upon or use of the Confidential Information of the Disclosing Party.
Restrictions on Use and Disclosure. The Receiving Party shall not use Confidential Information of the Disclosing Party for any purpose other than in furtherance of this Agreement and the activities described herein. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any third parties except as otherwise permitted hereunder. The Receiving Party may disclose Confidential Information of the Disclosing Party only to those related parties who have a need to know such Confidential Information and who are bound to retain the confidentiality thereof under provisions no less restrictive than those required by the Receiving Party for its own comparable Confidential Information. The Receiving Party shall maintain Confidential Information of the Disclosing Party with at least the same degree of care it uses to protect its own proprietary information of a similar nature or sensitivity, but in no event with less than reasonable care.
LIMITATION OF LIABILITY
IN NO EVENT SHALL SCALIX OR ITS LICENSORS HAVE ANY LIABILITY TO CUSTOMER OR ANYONE CLAIMING THROUGH OR UNDER CUSTOMER FOR ANY LOST PROFITS, LOST DATA, EQUIPMENT DOWNTIME, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES IN ANY WAY ARISING OUT OF THIS AGREEMENT AND HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, EVEN IF SCALIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SCALIX‘S CUMULATIVE LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO SCALIX PURSUANT TO THIS AGREEMENT WITHIN TWELVE MONTHS OF THE EVENT GIVING RISE TO ANY SUCH CLAIM. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION IS AN ESSENTIAL ELEMENT OF THE BARGAIN AND ABSENT THIS SECTION THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
MISCELLANEOUS
All notices under this Agreement must be delivered in writing by courier, by electronic facsimile, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth on the cover page hereto (or such other address designated by a party in writing), and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner. If Customer exports, re-exports or imports the Scalix Xandros Edition Software or Documentation, then Customer assumes responsibility for complying with applicable laws and regulations and for obtaining required export and import authorizations. Scalix may suspend performance if Customer is in violation of any applicable laws or regulations. Neither party shall be liable to the other in any way whatsoever for any failure or delay in performance of any of the obligations under this Agreement (other than obligations to make payment), arising out of any event or circumstance beyond the reasonable control of such party (including, without limitation, war, rebellion, civil commotion, strikes, lock-outs or industrial disputes; fire, explosion, earthquake, acts of God, flood, drought or bad weather; the unavailability of deliveries, supplies, software, disks or other media or the requisitioning or other act or order by any government department, council or other constituted body). All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Customer‘s relationship to Scalix is that of an independent contractor, and neither party is an agent or partner of the other. Either party may individually issue a press release discussing Customer‘s plans to use, or the use of, Scalix Xandros Edition Software, and/or any publicly available information describing Scalix‘s or Customer‘s businesses, products or services. Customer consents to the use of its name on Scalix customer lists. Upon the request of Scalix, Customer will act as a reference for Scalix. If any provision of this Agreement is unenforceable, such provision will be changed to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. This Agreement may be executed in counterparts and signature pages may be transmitted by facsimile, each of which will be considered an original, but all of which together will constitute the same instrument. Customer may not assign or delegate this Agreement or its rights or duties hereunder (by operation of law or otherwise) without the express written consent of Scalix. Any assignment not in conformity with the foregoing will be null and void. Exclusive jurisdiction and venue of any actions arising out of, or relating to or in any way connected with this Agreement, its negotiation or termination, or the Scalix Xandros Edition Software or Documentation provided or to be provided by Scalix, will be in San Mateo County, California if in state court, and in the Northern District of California if in Federal Court. In any litigation in which the parties are adverse, the parties agree to waive their respective rights to a trial by jury. The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods or the United Nations Convention on the Limitation Period in the International Sale of Goods, as amended. If this license is acquired under a U.S. Government contract, use, duplication, and disclosure of the Scalix Xandros Edition Software and Documentation by the U.S. Government is subject to restrictions set forth in this Agreement, which incorporates all applicable FAR provisions; without limitation, Customer agrees that the Scalix Xandros Edition Software is delivered as “commercial computer software” as defined in DFARS 252.227-7014 (June 1995) or as a “commercial item” as defined in FAR 2.101(a), or as “restricted computer software” as defined in FAR 52.227-19 (Jun 1987) (or any equivalent agency regulation or contract clause), whichever is applicable. If the Scalix Xandros Edition Software is licensed for use in the performance of a U.S. government prime contract or subcontract, Customer agrees that the Scalix Xandros Edition Software has been developed entirely at private expense. Customer agrees that the Scalix Xandros Edition Software, and any derivatives or modifications, is adequately marked when the restricted rights legend below is affixed to the Scalix Xandros Edition Software or to its storage media and is perceptible directly or with the aid of a machine or device. Customer agrees to conspicuously put the following legend on the Scalix Xandros Edition Software media with Customer’s name and address added below the notice:
RESTRICTED RIGHTS LEGEND
Use, duplication or disclosure is subject to Scalix‘s and its licensors‘ standard commercial license terms and for non-DOD Departments and Agencies of the U.S. Government, the restrictions as set forth in FAR 52.227-19(c)(1-2)(Jun 1987).
Scalix Corporation
1400 Fashion Island Blvd.
Suite 602
San Mateo, CA 94404
Copyright © 2006 Scalix Corporation. All Rights Reserved.
This Agreement will be governed in all respects by the laws of the State of California, without application of its conflicts of laws principles, and without regard to the provisions of any state Uniform Computer Information Transactions Act or similar federal or state laws or regulations. This Agreement may be amended only by a written document signed by both parties that specifically references this Agreement. No purchase order or other document that purports to modify or supplement this Agreement will add to or vary the terms of the Agreement, and all proposed variations or additions (whether submitted by Scalix or Customer) are deemed material and objected to unless otherwise agreed to in a writing signed by both parties. The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of this Agreement. As used in this Agreement, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation.
IBM DB2
International License Agreement for Non-Warranted Programs
Part 1 – General Terms
BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE PROGRAM YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS,
– DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE PROGRAM; AND
– PROMPTLY RETURN THE PROGRAM AND PROOF OF ENTITLEMENT TO THE PARTY FROM WHOM YOU ACQUIRED IT TO OBTAIN A REFUND OF THE AMOUNT YOU PAID. IF YOU DOWNLOADED THE PROGRAM, CONTACT THE PARTY FROM WHOM YOU ACQUIRED IT.
“IBM” is International Business Machines Corporation or one of its subsidiaries.
“License Information” (“LI”) is a document that provides information specific to a Program. The Program’s LI is available at http://www.ibm.com/software/sla/ . The LI may also be found in a file in the Program’s directory, by the use of a system command, or as a booklet which accompanies the Program.
“Program” is the following, including the original and all whole or partial copies: 1) machine-readable instructions and data, 2) components, 3) audio-visual content (such as images, text, recordings, or pictures), 4) related licensed materials, and 5) license use documents or keys, and documentation.
A “Proof of Entitlement” (“PoE”) is evidence of Your authorization to use a Program at a specified level. That level may be measured, for example, by the number of processors or users. The PoE is also evidence of Your eligibility for future upgrade prices, if any, and potential special or promotional opportunities. If IBM does not provide You with a PoE, then IBM may accept the original paid sales receipt or other sales record from the party (either IBM or its reseller) from whom You acquired the Program, provided that it specifies the name of the Program and the usage level acquired.
“You” and “Your” refer either to an individual person or to a single legal entity.
This Agreement includes Part 1 – General Terms, Part 2 – Country-unique Terms (if any), License Information, and Proof of Entitlement and is the complete agreement between You and IBM regarding the use of the Program. It replaces any prior oral or written communications between You and IBM concerning Your use of the Program. The terms of Part 2 and License Information may replace or modify those of Part 1. To the extent there is a conflict between the terms of this Agreement and those of the IBM International Passport Advantage Agreement, the terms of the latter agreement prevail.
1. Entitlement
License
The Program is owned by IBM or an IBM supplier, and is copyrighted and licensed, not sold.
IBM grants You a nonexclusive license to use the Program when You lawfully acquire it.
You may 1) use the Program up to the level of use specified in the PoE and 2) make and install copies, including a backup copy, to support such use. The terms of this license apply to each copy You make. You will reproduce all copyright notices and all other legends of ownership on each copy, or partial copy, of the Program.
If You acquire the Program as a program upgrade, after You install the upgrade You may not use the Program from which You upgraded or transfer it to another party.
You will ensure that anyone who uses the Program (accessed either locally or remotely) does so only for Your authorized use and complies with the terms of this Agreement.
You may not 1) use, copy, modify, or distribute the Program except as provided in this Agreement; 2) reverse assemble, reverse compile, or otherwise translate the Program except as specifically permitted by law without the possibility of contractual waiver; or 3) sublicense, rent, or lease the Program.
IBM may terminate Your license if You fail to comply with the terms of this Agreement. If IBM does so, You must destroy all copies of the Program and its PoE.
Money-back Guarantee
If for any reason You are dissatisfied with the Program and You are the original licensee, You may obtain a refund of the amount You paid for it, if within 30 days of Your invoice date You return the Program and its PoE to the party from whom You obtained it. If You downloaded the Program, You may contact the party from whom You acquired it for instructions on how to obtain the refund.
Program Transfer
You may transfer a Program and all of Your license rights and obligations to another party only if that party agrees to the terms of this Agreement. When You transfer the Program, You must also transfer a copy of this Agreement, including the Program’s PoE. After the transfer, You may not use the Program.
2. Charges
The amount payable for a Program license is a one-time charge.
One-time charges are based on the level of use acquired which is specified in the PoE. IBM does not give credits or refunds for charges already due or paid, except as specified elsewhere in this Agreement.
If You wish to increase the level of use, notify IBM or the party from whom You acquired it and pay any applicable charges.
If any authority imposes a duty, tax, levy or fee, excluding those based on IBM’s net income, upon the Program, then You agree to pay the amount specified or supply exemption documentation. You are responsible for any personal property taxes for the Program from the date that You acquire it.
3. No Warranty
SUBJECT TO ANY STATUTORY WARRANTIES WHICH CAN NOT BE EXCLUDED, IBM MAKES NO WARRANTIES OR CONDITIONS EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, REGARDING THE PROGRAM OR TECHNICAL SUPPORT, IF ANY.
The exclusion also applies to any of IBM’s Program developers and suppliers.
Manufacturers, suppliers, or publishers of non-IBM Programs may provide their own warranties.
IBM does not provide technical support, unless IBM specifies otherwise.
4. Limitation of Liability
Circumstances may arise where, because of a default on IBM’s part or other liability, You are entitled to recover damages from IBM. In each such instance, regardless of the basis on which You may be entitled to claim damages from IBM, (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), IBM is liable for no more than 1) damages for bodily injury (including death) and damage to real property and tangible personal property and 2) the amount of any other actual direct damages up to the charges for the Program that is the subject of the claim.
This limitation of liability also applies to IBM’s Program developers and suppliers. It is the maximum for which they and IBM are collectively responsible.
UNDER NO CIRCUMSTANCES IS IBM, ITS PROGRAM DEVELOPERS OR SUPPLIERS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY:
1. LOSS OF, OR DAMAGE TO, DATA;
2. SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; OR
3. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
5. General
1. Nothing in this Agreement affects any statutory rights of consumers that cannot be waived or limited by contract.
2. In the event that any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement remain in full force and effect.
3. You agree to comply with all applicable export and import laws and regulations.
4. You agree to allow IBM to store and use Your contact information, including names, phone numbers, and e-mail addresses, anywhere they do business. Such information will be processed and used in connection with our business relationship, and may be provided to contractors, Business Partners, and assignees of IBM for uses consistent with their collective business activities, including communicating with You (for example, for processing orders, for promotions, and for market research).
5. Neither You nor IBM will bring a legal action under this Agreement more than two years after the cause of action arose unless otherwise provided by local law without the possibility of contractual waiver or limitation.
6. Neither You nor IBM is responsible for failure to fulfill any obligations due to causes beyond its control.
7. This Agreement will not create any right or cause of action for any third party, nor will IBM be responsible for any third party claims against You except, as permitted by the Limitation of Liability section above, for bodily injury (including death) or damage to real or tangible personal property for which IBM is legally liable.
6. Governing Law, Jurisdiction, and Arbitration
Governing Law
Both You and IBM consent to the application of the laws of the country in which You acquired the Program license to govern, interpret, and enforce all of Your and IBM’s rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this Agreement, without regard to conflict of law principles.
The United Nations Convention on Contracts for the International Sale of Goods does not apply.
Jurisdiction
All of our rights, duties, and obligations are subject to the courts of the country in which You acquired the Program license.
Part 2 – Country-unique Terms
AMERICAS
ARGENTINA: Governing Law, Jurisdiction, and Arbitration (Section 6): The following exception is added to this section:
Any litigation arising from this Agreement will be settled exclusively by the Ordinary Commercial Court of the city of Buenos Aires.
BRAZIL: Governing Law, Jurisdiction, and Arbitration (Section 6): The following exception is added to this section:
Any litigation arising from this Agreement will be settled exclusively by the court of Rio de Janeiro, RJ.
CANADA: General (Section 5): The following replaces item 7:
7. This Agreement will not create any right or cause of action for any third party, nor will IBM be responsible for any third party claims against You except as permitted by the Limitation of Liability section above for bodily injury (including death) or physical harm to real or tangible personal property caused by IBM’s negligence for which IBM is legally liable.”
Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase “the laws of the country in which You acquired the Program license” in the Governing Law subsection is replaced by the following:
the laws in the Province of Ontario”
PERU: Limitation of Liability (Section 4): The following is added at the end of this section:
In accordance with Article 1328 of the Peruvian Civil Code, the limitations and exclusions specified in this section will not apply to damages caused by IBM’s willful misconduct (“dolo”) or gross negligence (“culpa inexcusable”).
UNITED STATES OF AMERICA: General (Section 5): The following is added to this section:
U.S. Government Users Restricted Rights – Use, duplication or disclosure restricted by the GSA ADP Schedule Contract with the IBM Corporation.
Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase “the laws of the country in which You acquired the Program license” in the Governing Law subsection is replaced by the following:
the laws of the State of New York, United States of America
ASIA PACIFIC
AUSTRALIA: No Warranty (Section 3): The following is added:
Although IBM specifies that there are no warranties, You may have certain rights under the Trade Practices Act 1974 or other legislation and are only limited to the extent permitted by the applicable legislation.
Limitation of Liability (Section 4): The following is added:
Where IBM is in breach of a condition or warranty implied by the Trade Practices Act 1974, IBM’s liability is limited to the repair or replacement of the goods, or the supply of equivalent goods. Where that condition or warranty relates to right to sell, quiet possession or clear title, or the goods are of a kind ordinarily acquired for personal, domestic or household use or consumption, then none of the limitations in this paragraph apply.
Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase “the laws of the country in which You acquired the Program license” in the Governing Law subsection is replaced by the following:
the laws of the State or Territory in which You acquired the Program license
CAMBODIA, LAOS, and VIETNAM: Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase “the laws of the country in which You acquired the Program license” in the Governing Law subsection is replaced by the following:
the laws of the State of New York, United States of America
The following is added to this section:
Arbitration
Disputes arising out of or in connection with this Agreement shall be finally settled by arbitration which shall be held in Singapore in accordance with the Arbitration Rules of Singapore International Arbitration Center (“SIAC Rules”) then in effect. The arbitration award shall be final and binding for the parties without appeal and shall be in writing and set forth the findings of fact and the conclusions of law.
The number of arbitrators shall be three, with each side to the dispute being entitled to appoint one arbitrator. The two arbitrators appointed by the parties shall appoint a third arbitrator who shall act as chairman of the proceedings. Vacancies in the post of chairman shall be filled by the president of the SIAC. Other vacancies shall be filled by the respective nominating party. Proceedings shall continue from the stage they were at when the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint an arbitrator within 30 days of the date the other party appoints its, the first appointed arbitrator shall be the sole arbitrator, provided that the arbitrator was validly and properly appointed.
All proceedings shall be conducted, including all documents presented in such proceedings, in the English language. The English language version of this Agreement prevails over any other language version.
HONG KONG S.A.R. and MACAU S.A.R. of China: Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase “the laws of the country in which You acquired the Program license” in the Governing Law subsection is replaced by the following:
the laws of Hong Kong Special Administrative Region of China
INDIA: Limitation of Liability (Section 4): The following replaces the terms of items 1 and 2 of the first paragraph:
1) liability for bodily injury (including death) or damage to real property and tangible personal property will be limited to that caused by IBM’s negligence; and 2) as to any other actual damage arising in any situation involving nonperformance by IBM pursuant to, or in any way related to the subject of this Agreement, IBM’s liability will be limited to the charge paid by You for the individual Program that is the subject of the claim.
General (Section 5): The following replaces the terms of item 5:
If no suit or other legal action is brought, within three years after the cause of action arose, in respect of any claim that either party may have against the other, the rights of the concerned party in respect of such claim will be forfeited and the other party will stand released from its obligations in respect of such claim.
Governing Law, Jurisdiction, and Arbitration (Section 6): The following is added to this section:
Arbitration
Disputes arising out of or in connection with this Agreement shall be finally settled by arbitration which shall be held in Bangalore, India in accordance with the laws of India then in effect. The arbitration award shall be final and binding for the parties without appeal and shall be in writing and set forth the findings of fact and the conclusions of law.
The number of arbitrators shall be three, with each side to the dispute being entitled to appoint one arbitrator. The two arbitrators appointed by the parties shall appoint a third arbitrator who shall act as chairman of the proceedings. Vacancies in the post of chairman shall be filled by the president of the Bar Council of India. Other vacancies shall be filled by the respective nominating party. Proceedings shall continue from the stage they were at when the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint an arbitrator within 30 days of the date the other party appoints its, the first appointed arbitrator shall be the sole arbitrator, provided that the arbitrator was validly and properly appointed.
All proceedings shall be conducted, including all documents presented in such proceedings, in the English language. The English language version of this Agreement prevails over any other language version.
JAPAN: General (Section 5): The following is inserted after item 5:
Any doubts concerning this Agreement will be initially resolved between us in good faith and in accordance with the principle of mutual trust.
MALAYSIA: Limitation of Liability (Section 4): The word “SPECIAL” in item 2 of the third paragraph is deleted:
NEW ZEALAND: No Warranty (Section 3): The following is added:
Although IBM specifies that there are no warranties, You may have certain rights under the Consumer Guarantees Act 1993 or other legislation which cannot be excluded or limited. The Consumer Guarantees Act 1993 will not apply in respect of any goods which IBM provides, if You require the goods for the purposes of a business as defined in that Act.
Limitation of Liability (Section 4): The following is added:
Where Programs are not acquired for the purposes of a business as defined in the Consumer Guarantees Act 1993, the limitations in this Section are subject to the limitations in that Act.
PEOPLE’S REPUBLIC OF CHINA: Charges (Section 2): The following is added:
All banking charges incurred in the People’s Republic of China will be borne by You and those incurred outside the People’s Republic of China will be borne by IBM.
Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase “the laws of the country in which You acquired the Program license” in the Governing Law subsection is replaced by the following:
the laws of the State of New York, United States of America (except when local law requires otherwise)
PHILIPPINES: Limitation of Liability (Section 4): The following replaces the terms of item 2 of the third paragraph:
2. special (including nominal and exemplary damages), moral, incidental, or indirect damages or for any economic consequential damages; or
Governing Law, Jurisdiction, and Arbitration (Section 6): The following is added to this section:
Arbitration
Disputes arising out of or in connection with this Agreement shall be finally settled by arbitration which shall be held in Metro Manila, Philippines in accordance with the laws of the Philippines then in effect. The arbitration award shall be final and binding for the parties without appeal and shall be in writing and set forth the findings of fact and the conclusions of law.
The number of arbitrators shall be three, with each side to the dispute being entitled to appoint one arbitrator. The two arbitrators appointed by the parties shall appoint a third arbitrator who shall act as chairman of the proceedings. Vacancies in the post of chairman shall be filled by the president of the Philippine Dispute Resolution Center, Inc. Other vacancies shall be filled by the respective nominating party. Proceedings shall continue from the stage they were at when the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint an arbitrator within 30 days of the date the other party appoints its, the first appointed arbitrator shall be the sole arbitrator, provided that the arbitrator was validly and properly appointed.
All proceedings shall be conducted, including all documents presented in such proceedings, in the English language. The English language version of this Agreement prevails over any other language version.
SINGAPORE: Limitation of Liability (Section 4): The words “SPECIAL” and “ECONOMIC” are deleted from item 2 of the third paragraph.
General (Section 5): The following replaces the terms of item 7:
Subject to the rights provided to IBM’s suppliers and Program developers as provided in Section 4 above (Limitation of Liability), a person who is not a party to this Agreement shall have no right under the Contracts (Right of Third Parties) Act to enforce any of its terms.
EUROPE, MIDDLE EAST, AFRICA (EMEA)
No Warranty (Section 3): In the European Union, the following is added at the beginning of this section:
In the European Union, consumers have legal rights under applicable national legislation governing the sale of consumer goods. Such rights are not affected by the provisions of this Section 3.
Limitation of Liability (Section 4): In Austria, Denmark, Finland, Greece, Italy, Netherlands, Norway, Portugal, Spain, Sweden and Switzerland, the following replaces the terms of this section in its entirety:
Except as otherwise provided by mandatory law:
1. IBM’s liability for any damages and losses that may arise as a consequence of the fulfillment of its obligations under or in connection with this agreement or due to any other cause related to this agreement is limited to the compensation of only those damages and losses proved and actually arising as an immediate and direct consequence of the non-fulfillment of such obligations (if IBM is at fault) or of such cause, for a maximum amount equal to the charges You paid for the Program.
The above limitation shall not apply to damages for bodily injuries (including death) and damages to real property and tangible personal property for which IBM is legally liable.
2. UNDER NO CIRCUMSTANCES IS IBM, OR ANY OF ITS PROGRAM DEVELOPERS, LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: 1) LOSS OF, OR DAMAGE TO, DATA; 2) INCIDENTAL OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; 3) LOST PROFITS, EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
3. The limitation and exclusion of liability herein agreed applies not only to the activities performed by IBM but also to the activities performed by its suppliers and Program developers, and represents the maximum amount for which IBM as well as its suppliers and Program developers, are collectively responsible.
Limitation of Liability (Section 4): In France and Belgium, the following replaces the terms of this section in its entirety:
Except as otherwise provided by mandatory law:
1. IBM’s liability for any damages and losses that may arise as a consequence of the fulfillment of its obligations under or in connection with this agreement is limited to the compensation of only those damages and losses proved and actually arising as an immediate and direct consequence of the non-fulfillment of such obligations (if IBM is at fault), for a maximum amount equal to the charges You paid for the Program that has caused the damages.
The above limitation shall not apply to damages for bodily injuries (including death) and damages to real property and tangible personal property for which IBM is legally liable.
2. UNDER NO CIRCUMSTANCES IS IBM, OR ANY OF ITS PROGRAM DEVELOPERS, LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: 1) LOSS OF, OR DAMAGE TO, DATA; 2) INCIDENTAL OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; 3) LOST PROFITS, EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
3. The limitation and exclusion of liability herein agreed applies not only to the activities performed by IBM but also to the activities performed by its suppliers and Program developers, and represents the maximum amount for which IBM as well as its suppliers and Program developers, are collectively responsible.
Governing Law, Jurisdiction, and Arbitration (Section 6)
Governing Law
The phrase “the laws of the country in which You acquired the Program license” is replaced by:
1) “the laws of Austria” in Albania, Armenia, Azerbeijan, Belarus, Bosnia-Herzegovina, Bulgaria, Croatia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, FYR Macedonia, Moldavia, Poland, Romania, Russia, Slovakia, Slovenia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, and FR Yugoslavia;
2) “the laws of France” in Algeria, Benin, Burkina Faso, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo Republic, Djibouti, Democratic Republic of Congo, Equatorial Guinea, French Guiana, French Polynesia, Gabon, Gambia, Guinea, Guinea-Bissau, Ivory Coast, Lebanon, Madagascar, Mali, Mauritania, Mauritius, Mayotte, Morocco, New Caledonia, Niger, Reunion, Senegal, Seychelles, Togo, Tunisia, Vanuatu, and Wallis & Futuna;
3) “the laws of Finland” in Estonia, Latvia, and Lithuania;
4) “the laws of England” in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta, Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome, Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates, the United Kingdom, West Bank/Gaza, Yemen, Zambia, and Zimbabwe; and
5) “the laws of South Africa” in South Africa, Namibia, Lesotho and Swaziland.
Jurisdiction
The following exceptions are added to this section:
1) In Austria the choice of jurisdiction for all disputes arising out of this Agreement and relating thereto, including its existence, will be the competent court of law in Vienna, Austria (Inner-City);
2) in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta, Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome, Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates, West Bank/Gaza, Yemen, Zambia, and Zimbabwe all disputes arising out of this Agreement or related to its execution, including summary proceedings, will be submitted to the exclusive jurisdiction of the English courts;
3) in Belgium and Luxembourg, all disputes arising out of this Agreement or related to its interpretation or its execution, the law, and the courts of the capital city, of the country of Your registered office and/or commercial site location only are competent;
4) in France, Algeria, Benin, Burkina Faso, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo Republic, Djibouti, Democratic Republic of Congo, Equatorial Guinea, French Guiana, French Polynesia, Gabon, Gambia, Guinea, Guinea-Bissau, Ivory Coast, Lebanon, Madagascar, Mali, Mauritania, Mauritius, Mayotte, Morocco, New Caledonia, Niger, Reunion, Senegal, Seychelles, Togo, Tunisia, Vanuatu, and Wallis & Futuna all disputes arising out of this Agreement or related to its violation or execution, including summary proceedings, will be settled exclusively by the Commercial Court of Paris;
5) in Russia, all disputes arising out of or in relation to the interpretation, the violation, the termination, the nullity of the execution of this Agreement shall be settled by Arbitration Court of Moscow;
6) in South Africa, Namibia, Lesotho and Swaziland, both of us agree to submit all disputes relating to this Agreement to the jurisdiction of the High Court in Johannesburg;
7) in Turkey all disputes arising out of or in connection with this Agreement shall be resolved by the Istanbul Central (Sultanahmet) Courts and Execution Directorates of Istanbul, the Republic of Turkey;
8) in each of the following specified countries, any legal claim arising out of this Agreement will be brought before, and settled exclusively by, the competent court of a) Athens for Greece, b) Tel Aviv-Jaffa for Israel, c) Milan for Italy, d) Lisbon for Portugal, and e) Madrid for Spain; and
9) in the United Kingdom, both of us agree to submit all disputes relating to this Agreement to the jurisdiction of the English courts.
Arbitration
In Albania, Armenia, Azerbeijan, Belarus, Bosnia-Herzegovina, Bulgaria, Croatia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, FYR Macedonia, Moldavia, Poland, Romania, Russia, Slovakia, Slovenia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, and FR Yugoslavia all disputes arising out of this Agreement or related to its violation, termination or nullity will be finally settled under the Rules of Arbitration and Conciliation of the International Arbitral Center of the Federal Economic Chamber in Vienna (Vienna Rules) by three arbitrators appointed in accordance with these rules.
The arbitration will be held in Vienna, Austria, and the official language of the proceedings will be English. The decision of the arbitrators will be final and binding upon both parties. Therefore, pursuant to paragraph 598 (2) of the Austrian Code of Civil Procedure, the parties expressly waive the application of paragraph 595 (1) figure 7 of the Code. IBM may, however, institute proceedings in a competent court in the country of installation.
In Estonia, Latvia and Lithuania all disputes arising in connection with this Agreement will be finally settled in arbitration that will be held in Helsinki, Finland in accordance with the arbitration laws of Finland then in effect. Each party will appoint one arbitrator. The arbitrators will then jointly appoint the chairman. If arbitrators cannot agree on the chairman, then the Central Chamber of Commerce in Helsinki will appoint the chairman.
AUSTRIA: No Warranty (Section 3): The terms of this section are completely replaced by the following:
The following limited warranty applies if You have paid a charge to obtain the Program:
The warranty period is twelve months from the date of delivery. The limitation period for consumers in action for breach of warranty is the statutory period as a minimum.
The warranty for an IBM Program covers the functionality of the Program for its normal use and the Program’s conformity to its specifications.
IBM warrants that when the Program is used in the specified operating environment it will conform to its specifications. IBM does not warrant uninterrupted or error-free operation of the Program or that IBM will correct all Program defects. You are responsible for the results obtained from the use of the Program.
The warranty applies only to the unmodified portion of the Program.
If the Program does not function as warranted during the warranty period and the problem cannot be resolved with information available. You may return the Program to the party from whom You acquired it and receive a refund in the amount You paid. If You downloaded the Program, You may contact the party from whom You acquired it to obtain the refund.
This is our sole obligation to You, except as otherwise required by applicable statutory law.
General (Section 5): The following is added to item 4:
For purposes of this clause, contact information will also include information about You as a legal entity, for example revenue data and other transactional information.
GERMANY: No Warranty (Section 3): The same changes apply as those in No Warranty (Section 3) under Austria above.
Limitation of Liability (Section 4): The following paragraph is added to this Section:
The limitations and exclusions specified in this Section will not apply to damages caused by IBM intentionally or by gross negligence.
General (Section 5): The following replaces the terms of item 5:
Any claims resulting from this Agreement are subject to a statute of limitation of three years, except as stated in Section 3 (No Warranty) of this Agreement.
HUNGARY: Limitation of Liability (Section 4): The following is added at the end of this section:
The limitation and exclusion specified herein shall not apply to liability for a breach of contract damaging life, physical well-being, or health that has been caused intentionally, by gross negligence, or by a criminal act.
The parties accept the limitations of liability as valid provisions and state that the Section 314.(2) of the Hungarian Civil Code applies as the acquisition price as well as other advantages arising out of the present Agreement balance this limitation of liability.
IRELAND: No Warranty (Section 3): The following is added to this section:
Except as expressly provided in these terms and conditions, or section 12 of the Sale of Goods Act 1893 (as amended by the Sale of Goods and Supply of Services Act 1980 (“the 1980 Act”)), all conditions and warranties (express or implied, statutory or otherwise) are hereby excluded including, without limitation, any warranties implied by the Sale of Goods Act 1893 as amended by the 1980 Act (including, for the avoidance of doubt, section 39 of the 1980 Act).
Limitation of Liability (Section 4): The following replaces the terms of this section in its entirety:
For the purposes of this section, a “Default” means any act, statement, omission, or negligence on the part of IBM in connection with, or in relation to, the subject matter of an Agreement in respect of which IBM is legally liable to You whether in contract or tort. A number of Defaults which together result in, or contribute to, substantially the same loss or damage will be treated as one Default occurring on the date of occurrence of the last such Default.
Circumstances may arise where, because of a Default, You are entitled to recover damages from IBM. This section sets out the extent of IBM’s liability and Your sole remedy.
1. IBM will accept unlimited liability for (a) death or personal injury caused by the negligence of IBM, and (b) subject always to the Items for Which IBM is Not Liable below, for physical damage to Your tangible property resulting from the negligence of IBM.
2. Except as provided in item 1 above, IBM’s entire liability for actual damages for any one Default will not in any event exceed the greater of 1) EUR 125,000, or 2) 125% of the amount You paid for the Program directly relating to the Default. These limits also apply to any of IBM’s suppliers and Program developers. They state the maximum for which IBM and such suppliers and Program developers are collectively responsible.
Items for Which IBM is Not Liable
Save with respect to any liability referred to in item 1 above, under no circumstances is IBM or any of its suppliers or Program developers liable for any of the following, even if IBM or they were informed of the possibility of such losses:
1. loss of, or damage to, data;
2. special, indirect, or consequential loss; or
3. loss of profits, business, revenue, goodwill, or anticipated savings.
ITALY: General (Section 5): The following is added to this section:
IBM and Customer (hereinafter, individually, “Party”) shall comply with all the obligations of the applicable provisions of law and/or regulation on personal data protection. Each of the Parties will indemnify and keep the other Party harmless from any damage, claim, cost or expense incurred by the latter, directly and or indirectly, as a consequence of an infringement of the other Party of the mentioned provisions of law and/or regulations.
SLOVAKIA: Limitation of Liability (Section 4): The following is added to the end of the last paragraph:
The limitations apply to the extent they are not prohibited under §§ 373-386 of the Slovak Commercial Code.
General (Section 5): The terms of item 5 are replaced with the following:
THE PARTIES AGREE THAT, AS DEFINED BY APPLICABLE LOCAL LAW, ANY LEGAL OR OTHER ACTION RELATED TO A BREACH OF THIS AGREEMENT MUST BE COMMENCED NO LATER THAN FOUR YEARS FROM THE DATE ON WHICH THE CAUSE OF ACTION AROSE.
SWITZERLAND: General (Section 5): The following is added to item 4:
For purposes of this clause, contact information will also include information about You as a legal entity, for example revenue data and other transactional information.
UNITED KINGDOM: No Warranty (Section 3): The following replaces the first sentence in the first paragraph of this section:
SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, IBM MAKES NO WARRANTY OR CONDITION EITHER EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) THE IMPLIED WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, REGARDING THE PROGRAM.
Limitation of Liability (Section 4): The following replaces the terms of this section in its entirety:
For the purposes of this section, a “Default” means any act, statement, omission, or negligence on the part of IBM in connection with, or in relation to, the subject matter of an Agreement in respect of which IBM is legally liable to You, whether in contract or tort. A number of Defaults which together result in, or contribute to, substantially the same loss or damage will be treated as one Default.
Circumstances may arise where, because of a Default, You are entitled to recover damages from IBM. This section sets out the extent of IBM’s liability and Your sole remedy.
1. IBM will accept unlimited liability for:
a. death or personal injury caused by the negligence of IBM;
b. any breach of its obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982, or any statutory modification or re-enactment of either such Section; and
c. subject always to the Items for Which IBM is Not Liable below, for physical damage to Your tangible property resulting from the negligence of IBM.
2. IBM’s entire liability for actual damages for any one Default will not in any event, except as provided in item 1 above, exceed the greater of 1) £75,000, or 2) 125% of the amount You paid for the Program directly relating to the Default. These limits also apply to IBM’s suppliers and Program developers. They state the maximum for which IBM and such suppliers and Program developers are collectively responsible.
Items for Which IBM is Not Liable
Save with respect to any liability referred to in item 1 above, under no circumstances is IBM or any of its suppliers or Program developers liable for any of the following, even if IBM or they were informed of the possibility of such losses:
1. loss of, or damage to, data;
2. special, indirect, or consequential loss; or
3. loss of profits, business, revenue, goodwill, or anticipated savings.
Z125-5589-03 (11/2002)
LICENSE INFORMATION
The Programs listed below are licensed under the following terms and conditions in addition to those of the International License Agreement for Non-Warranted Programs.
Program Name: DB2 Universal Database Express-C Version 8.2
Program Number: EVAL/TRIAL
Authorization for Use on Home/Portable Computer: The Program may be stored on the primary machine and another machine, provided that the Program is not in active use on both machines at the same time.
Specified Operating Environment
The Program’s specifications and specified operating environment information may be found in documentation accompanying the Program, if available, such as a read-me file, or other information published by IBM, such as an announcement letter.
Excluded Components
The provisions of this paragraph do not apply to the extent they are held to be invalid or unenforceable under the law that governs this license. The components listed below are “Excluded Components.” Notwithstanding any of the terms in the Agreement or any other agreement you may have with IBM:
(a) the third party suppliers of such Excluded Components (“Suppliers”) provide the components WITHOUT WARRANTIES OF ANY KIND and, such Suppliers DISCLAIM ANY AND ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, NON-INFRINGEMENT OR INTERFERENCE AND THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE EXCLUDED COMPONENTS;
(b) in no event are the Suppliers liable for any direct, indirect, incidental, special, exemplary, punitive or consequential damages, including but not limited to lost data, lost savings, and lost profits, with respect to the Excluded Components; and,
(c) IBM and the Suppliers are not liable to You, and will not defend, indemnify, or hold You harmless for any claims arising from or related to the Excluded Components.
Notwithstanding these exclusions, in Germany and Austria, IBM’s warranty and liability for the Excluded Components is governed only by the respective terms applicable for Germany and Austria in the IBM license agreements.
Notices and important information that IBM is required to provide to You with respect to the Excluded Components, including instructions for obtaining source code for certain Excluded Components, may be found in the NOTICES file(s) that accompanies the Program.
Your use of the Excluded Components is governed by the terms of the Agreement and not by any terms that may be contained in the NOTICES file(s). The terms contained in the Agreement are offered by IBM and not by any other party. Future Program updates or fixpacks may contain additional Excluded Components. Such additional Excluded Components, and related notices and information, if any, will be listed in another NOTICES file that accompanies the Program update or fixpack.
The following are Excluded Components:
WSWB (Eclipse) Help System – WebSphere Studio Workbench technology platform – EMF framework portion.
WSWB (Eclipse) Help System – WebSphere Studio Workbench technology platform.
XSLT4C (XALAN) v1.5/1.6
ICU (New version v2.4/2.6) – International Components for Unicode.
XML4C v5.3.1.
Apache (An XML Parser) XALAN Version
Expat code Thai Open Source Software Center Ltd.
CUP LALAR Parser Generator for Java(tm) and Runtime Classes
Intel (open source) Stack Unwind Library
Open source Infozip (UnZipSFX)
Program-unique Terms
1) Redistribution Information
Notwithstanding anything to the contrary in the Agreement, redistribution rights with or without support for the Program may be provided under a separate agreement for the binary code versions of the Program. Please contact an IBM Sales Representative or revisit the location from which you obtained the Program to obtain information for the appropriate royalty-free distribution license.
2) Usage Restriction
The following restrictions apply to the Program:
– Use of this Program is restricted to servers with up to two (2) processors per server.
– Use of the Connection Concentrator is not permitted
– Maximum memory per server is 4G
Any other use requires that you acquire a fully warranted copy of the Program under the terms of the International Program License Agreement.
3) High Availability Disaster Recovery Option
The DB2 High Availability Disaster Recovery (HADR) Option can be purchased to add built in high availability and disaster recovery features. Charges for this Option are based on the number of servers that HADR is enabled on. For example, consider an environment with two servers, one primary server, and one backup server. HADR must be purchased for each of the two servers.
Use of the DB2 HADR Option is governed by the International Program License Agreement and not this agreement, available here for your review: http://www.ibm.com/software/sla/sladb.nsf/displayLIs/30D8C3F2DB9DA82A87256F15004530A0?OpenDocument
4) If obtaining this Program through another IBM offering
If this Program is acquired through another IBM offering, then the license terms contained within that other IBM offering take precedence over these terms.
5) Fixpack Upgrade
Notwithstanding any license that may accompany a fixpack upgrade, the original license that came with your Program continues to govern the use of your Program. The Program’s original license terms are available for your review at either:
http://www.ibm.com/software/sla/sladb.nsf/displayLIs/B7F426508927677187256F150044CA95?OpenDocument for DB2 Universal Database Express Edition CPU Option (processor option) Version 8.2 or
http://www.ibm.com/software/sla/sladb.nsf/displayLIs/DEB99940E0B6EE2987256F150044D074?OpenDocument for DB2 Universal Database Express Edition Named User Option Version 8.2
6) IBM Base License
The following terms of Part 1 of the International License Agreement for Non-Warranted Programs do not apply: Proof of Entitlement, Money-back Guarantee, Program Transfer, Charges.
7) Excluded Components notices
The notices file referenced in the Excluded Components paragraph is located in the install directory of the Program in a file called Readme/readme_license.txt
D/N: L-SVAY-6H5R4M
P/N: L-SVAY-6H5R4M
SugarCRM
The Sugar Public License Version 1.1.3 (“SPL”) consists of the Mozilla Public License Version 1.1, modified to be specific to SugarCRM, with the Additional Terms in Exhibit B. The original Mozilla Public License 1.1 can be found at: http://www.mozilla.org/MPL/MPL-1.1.html
SUGARCRM PUBLIC LICENSE
Version 1.1.3
——————————————————————————–
1. Definitions.
1.0.1. “Commercial Use” means distribution or otherwise making the Covered Code available to a third party.
1.1. ”Contributor” means each entity that creates or contributes to the creation of Modifications.
1.2. ”Contributor Version” means the combination of the Original Code, prior Modifications used by a Contributor, and the Modifications made by that particular Contributor.
1.3. ”Covered Code” means the Original Code or Modifications or the combination of the Original Code and Modifications, in each case including portions thereof.
1.4. ”Electronic Distribution Mechanism” means a mechanism generally accepted in the software development community for the electronic transfer of data.
1.5. ”Executable” means Covered Code in any form other than Source Code.
1.6. ”Initial Developer” means the individual or entity identified as the Initial Developer in the Source Code notice required by Exhibit A.
1.7. ”Larger Work” means a work which combines Covered Code or portions thereof with code not governed by the terms of this License.
1.8. ”License” means this document.
1.8.1. “Licensable” means having the right to grant, to the maximum extent possible, whether at the time of the initial grant or subsequently acquired, any and all of the rights conveyed herein.
1.9. ”Modifications” means any addition to or deletion from the substance or structure of either the Original Code or any previous Modifications. When Covered Code is released as a series of files, a Modification is:
A. Any addition to or deletion from the contents of a file containing Original Code or previous Modifications.
B. Any new file that contains any part of the Original Code or previous Modifications.
1.10. ”Original Code” means Source Code of computer software code which is described in the Source Code notice required by Exhibit A as Original Code, and which, at the time of its release under this License is not already Covered Code governed by this License.
1.10.1. “Patent Claims” means any patent claim(s), now owned or hereafter acquired, including without limitation, method, process, and apparatus claims, in any patent Licensable by grantor.
1.11. ”Source Code” means the preferred form of the Covered Code for making modifications to it, including all modules it contains, plus any associated interface definition files, scripts used to control compilation and installation of an Executable, or source code differential comparisons against either the Original Code or another well known, available Covered Code of the Contributor’s choice. The Source Code can be in a compressed or archival form, provided the appropriate decompression or de-archiving software is widely available for no charge.
1.12. “You” (or “Your”) means an individual or a legal entity exercising rights under, and complying with all of the terms of, this License or a future version of this License issued under Section 6.1. For legal entities, “You” includes any entity which controls, is controlled by, or is under common control with You. For purposes of this definition, “control” means (a) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (b) ownership of more than fifty percent (50%) of the outstanding shares or beneficial ownership of such entity.
2. Source Code License.
2.1. The Initial Developer Grant. The Initial Developer hereby grants You a world-wide, royalty-free, non-exclusive license, subject to third party intellectual property claims:
(a) under intellectual property rights (other than patent or trademark) Licensable by Initial Developer to use, reproduce, modify, display, perform, sublicense and distribute the Original Code (or portions thereof) with or without Modifications, and/or as part of a Larger Work; and
(b) under Patents Claims infringed by the making, using or selling of Original Code, to make, have made, use, practice, sell, and offer for sale, and/or otherwise dispose of the Original Code (or portions thereof).
(c) the licenses granted in this Section 2.1(a) and (b) are effective on the date Initial Developer first distributes Original Code under the terms of this License.
(d) Notwithstanding Section 2.1(b) above, no patent license is granted: 1) for code that You delete from the Original Code; 2) separate from the Original Code; or 3) for infringements caused by: i) the modification of the Original Code or
ii) the combination of the Original Code with other software or devices.
2.2. Contributor Grant. Subject to third party intellectual property claims, each Contributor hereby grants You a world-wide, royalty-free, non-exclusive license
(a) under intellectual property rights (other than patent or trademark) Licensable by Contributor, to use, reproduce, modify, display, perform, sublicense and distribute the Modifications created by such Contributor (or portions thereof) either on an unmodified basis, with other Modifications, as Covered Code and/or as part of a Larger Work; and
(b) under Patent Claims infringed by the making, using, or selling of Modifications made by that Contributor either alone and/or in combination with its Contributor Version (or portions of such combination), to make, use, sell, offer for sale, have made, and/or otherwise dispose of: 1) Modifications made by that Contributor (or portions thereof); and 2) the combination of Modifications made by that Contributor with its Contributor Version (or portions of such combination).
(c) the licenses granted in Sections 2.2(a) and 2.2(b) are effective on the date Contributor first makes Commercial Use of the Covered Code.
(d) Notwithstanding Section 2.2(b) above, no patent license is granted: 1) for any code that Contributor has deleted from the Contributor Version; 2) separate from the Contributor Version; 3) for infringements caused by: i) third party modifications of Contributor Version or ii) the combination of Modifications made by that Contributor with other software (except as part of the Contributor Version) or other devices; or 4) under Patent Claims infringed by Covered Code in the absence of Modifications made by that Contributor.
3. Distribution Obligations.
3.1. Application of License. The Modifications which You create or to which You contribute are governed by the terms of this License, including without limitation Section 2.2. The Source Code version of Covered Code may be distributed only under the terms of this License or a future version of this License released under Section 6.1, and You must include a copy of this License with every copy of the Source Code You distribute. You may not offer or impose any terms on any Source Code version that alters or restricts the applicable version of this License or the recipients’ rights hereunder. However, You may include an additional document offering the additional rights described in Section 3.5.
3.2. Availability of Source Code. Any Modification which You create or to which You contribute must be made available in Source Code form under the terms of this License either on the same media as an Executable version or via an accepted Electronic Distribution Mechanism to anyone to whom you made an Executable version available; and if made available via Electronic Distribution Mechanism, must remain available for at least twelve (12) months after the date it initially became available, or at least six (6) months after a subsequent version of that particular Modification has been made available to such recipients. You are responsible for ensuring that the Source Code version remains available even if the Electronic Distribution Mechanism is maintained by a third party.
3.3. Description of Modifications. You must cause all Covered Code to which You contribute to contain a file documenting the changes You made to create that Covered Code and the date of any change. You must include a prominent statement that the Modification is derived, directly or indirectly, from Original Code provided by the Initial Developer and including the name of the Initial Developer in (a) the Source Code, and (b) in any notice in an Executable version or related documentation in which You describe the origin or ownership of the Covered Code.
3.4. Intellectual Property Matters
(a) Third Party Claims. If Contributor has knowledge that a license under a third party’s intellectual property rights is required to exercise the rights granted by such Contributor under Sections 2.1 or 2.2, Contributor must include a text file with the Source Code distribution titled “LEGAL” which describes the claim and the party making the claim in sufficient detail that a recipient will know whom to contact. If Contributor obtains such knowledge after the Modification is made available as described in Section 3.2, Contributor shall promptly modify the LEGAL file in all copies Contributor makes available thereafter and shall take other steps (such as notifying appropriate mailing lists or newsgroups) reasonably calculated to inform those who received the Covered Code that new knowledge has been obtained.
(b) Contributor APIs. If Contributor’s Modifications include an application programming interface and Contributor has knowledge of patent licenses which are reasonably necessary to implement that API, Contributor must also include this information in the LEGAL file.
(c) Representations. Contributor represents that, except as disclosed pursuant to Section 3.4(a) above, Contributor believes that Contributor’s Modifications are Contributor’s original creation(s) and/or Contributor has sufficient rights to grant the rights conveyed by this License.
3.5. Required Notices. You must duplicate the notice in Exhibit A in each file of the Source Code. If it is not possible to put such notice in a particular Source Code file due to its structure, then You must include such notice in a location (such as a relevant directory) where a user would be likely to look for such a notice. If You created one or more Modification(s) You may add your name as a Contributor to the notice described in Exhibit A. You must also duplicate this License in any documentation for the Source Code where You describe recipients’ rights or ownership rights relating to Covered Code. You may choose to offer, and to charge a fee for, warranty, support, indemnity or liability obligations to one or more recipients of Covered Code. However, You may do so only on Your own behalf, and not on behalf of the Initial Developer or any Contributor. You must make it absolutely clear than any such warranty, support, indemnity or liability obligation is offered by You alone, and You hereby agree to indemnify the Initial Developer and every Contributor for any liability incurred by the Initial Developer or such Contributor as a result of warranty, support, indemnity or liability terms You offer.
3.6. Distribution of Executable Versions. You may distribute Covered Code in Executable form only if the requirements of Section 3.1-3.5 have been met for that Covered Code, and if You include a notice stating that the Source Code version of the Covered Code is available under the terms of this License, including a description of how and where You have fulfilled the obligations of Section 3.2. The notice must be conspicuously included in any notice in an Executable version, related documentation or collateral in which You describe recipients’ rights relating to the Covered Code. You may distribute the Executable version of Covered Code or ownership rights under a license of Your choice, which may contain terms different from this License, provided that You are in compliance with the terms of this License and that the license for the Executable version does not attempt to limit or alter the recipient’s rights in the Source Code version from the rights set forth in this License. If You distribute the Executable version under a different license You must make it absolutely clear that any terms which differ from this License are offered by You alone, not by the Initial Developer or any Contributor. You hereby agree to indemnify the Initial Developer and every Contributor for any liability incurred by the Initial Developer or such Contributor as a result of any such terms You offer.
3.7. Larger Works. You may create a Larger Work by combining Covered Code with other code not governed by the terms of this License and distribute the Larger Work as a single product. In such a case, You must make sure the requirements of this License are fulfilled for the Covered Code.
4. Inability to Comply Due to Statute or Regulation. If it is impossible for You to comply with any of the terms of this License with respect to some or all of the Covered Code due to statute, judicial order, or regulation then You must: (a) comply with the terms of this License to the maximum extent possible; and (b) describe the limitations and the code they affect. Such description must be included in the LEGAL file described in Section 3.4 and must be included with all distributions of the Source Code. Except to the extent prohibited by statute or regulation, such description must be sufficiently detailed for a recipient of ordinary skill to be able to understand it.
5. Application of this License. This License applies to code to which the Initial Developer has attached the notice in Exhibit A and to related Covered Code.
6. Versions of the License.
6.1. New Versions.
SugarCRM Inc. (”SugarCRM”) may publish revised and/or new versions of the License from time to time. Each version will be given a distinguishing version number.
6.2. Effect of New Versions. Once Covered Code has been published under a particular version of the License, You may always continue to use it under the terms of that version. You may also choose to use such Covered Code under the terms of any subsequent version of the License published by SugarCRM. No one other than SugarCRM has the right to modify the terms applicable to Covered Code created under this License.
6.3. Derivative Works. If You create or use a modified version of this License (which you may only do in order to apply it to code which is not already Covered Code governed by this License), You must (a) rename Your license so that the phrases ”SugarCRM”, ”SPL” or any confusingly similar phrase do not appear in your license (except to note that your license differs from this License) and (b) otherwise make it clear that Your version of the license contains terms which differ from the SugarCRM Public License. (Filling in the name of the Initial Developer, Original Code or Contributor in the notice described in Exhibit A shall not of themselves be deemed to be modifications of this License.)
7. DISCLAIMER OF WARRANTY. COVERED CODE IS PROVIDED UNDER THIS LICENSE ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES THAT THE COVERED CODE IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE COVERED CODE IS WITH YOU. SHOULD ANY COVERED CODE PROVE DEFECTIVE IN ANY RESPECT, YOU (NOT THE INITIAL DEVELOPER OR ANY OTHER CONTRIBUTOR) ASSUME THE COST OF ANY NECESSARY SERVICING, REPAIR OR CORRECTION. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS LICENSE. NO USE OF ANY COVERED CODE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
8. TERMINATION.
8.1. This License and the rights granted hereunder will terminate automatically if You fail to comply with terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses to the Covered Code which are properly granted shall survive any termination of this License. Provisions which, by their nature, must remain in effect beyond the termination of this License shall survive.
8.2. If You initiate litigation by asserting a patent infringement claim (excluding declatory judgment actions) against Initial Developer or a Contributor (the Initial Developer or Contributor against whom You file such action is referred to as “Participant”) alleging that:
(a) such Participant’s Contributor Version directly or indirectly infringes any patent, then any and all rights granted by such Participant to You under Sections 2.1 and/or
2.2 of this License shall, upon 60 days notice from Participant terminate prospectively, unless if within 60 days after receipt of notice You either: (i) agree in writing to pay Participant a mutually agreeable reasonable royalty for Your past and future use of Modifications made by such Participant, or (ii) withdraw Your litigation claim with respect to the Contributor Version against such Participant. If within 60 days of notice, a reasonable royalty and payment arrangement are not mutually agreed upon in writing by the parties or the litigation claim is not withdrawn, the rights granted by Participant to You under Sections 2.1 and/or 2.2 automatically terminate at the expiration of the 60 day notice period specified above.
(b) any software, hardware, or device, other than such Participant’s Contributor Version, directly or indirectly infringes any patent, then any rights granted to You by such Participant under Sections 2.1(b) and 2.2(b) are revoked effective as of the date You first made, used, sold, distributed, or had made, Modifications made by that Participant.
8.3. If You assert a patent infringement claim against Participant alleging that such Participant’s Contributor Version directly or indirectly infringes any patent where such claim is resolved (such as by license or settlement) prior to the initiation of patent infringement litigation, then the reasonable value of the licenses granted by such Participant under Sections 2.1 or 2.2 shall be taken into account in determining the amount or value of any payment or license.
8.4. In the event of termination under Sections 8.1 or 8.2 above, all end user license agreements (excluding distributors and resellers) which have been validly granted by You or any distributor hereunder prior to termination shall survive termination.
9. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, SHALL YOU, THE INITIAL DEVELOPER, ANY OTHER CONTRIBUTOR, OR ANY DISTRIBUTOR OF COVERED CODE, OR ANY SUPPLIER OF ANY OF SUCH PARTIES, BE LIABLE TO ANY PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF SUCH PARTY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM SUCH PARTY’S NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU.
10. U.S. GOVERNMENT END USERS.
The Covered Code is a ”commercial item,” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of ”commercial computer software” and ”commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire Covered Code with only those rights set forth herein.
11. MISCELLANEOUS.
This License represents the complete agreement concerning subject matter hereof. If any provision of this License is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. This License shall be governed by California law provisions (except to the extent applicable law, if any, provides otherwise), excluding its conflict-of-law provisions. With respect to disputes in which at least one party is a citizen of, or an entity chartered or registered to do business in the United States of America, any litigation relating to this License shall be subject to the jurisdiction of the Federal Courts of the Northern District of California, with venue lying in Santa Clara County, California, with the losing party responsible for costs, including without limitation, court costs and reasonable attorneys’ fees and expenses. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any law or regulation which provides that the language of a contract shall be construed against the drafter shall not apply to this License.
12. RESPONSIBILITY FOR CLAIMS.
As between Initial Developer and the Contributors, each party is responsible for claims and damages arising, directly or indirectly, out of its utilization of rights under this License and You agree to work with Initial Developer and Contributors to distribute such responsibility on an equitable basis. Nothing herein is intended or shall be deemed to constitute any admission of liability.
13. MULTIPLE-LICENSED CODE.
Initial Developer may designate portions of the Covered Code as Multiple-Licensed. Multiple-Licensed means that the Initial Developer permits you to utilize portions of the Covered Code under Your choice of the SPL or the alternative licenses, if any, specified by the Initial Developer in the file described in Exhibit A.
SugarCRM Public License 1.1.3 – Exhibit A
The contents of this file are subject to the SugarCRM Public License Version 1.1.3 (“License”); You may not use this file except in compliance with the License. You may obtain a copy of the License at http://www.sugarcrm.com/SPL
Software distributed under the License is distributed on an “AS IS” basis, WITHOUT WARRANTY OF ANY KIND, either express or implied. See the License for the specific language governing rights and limitations under the License.
The Original Code is: SugarCRM Open Source
The Initial Developer of the Original Code is SugarCRM, Inc.
Portions created by SugarCRM are Copyright (C) 2004 SugarCRM, Inc.; All Rights Reserved.
Contributor(s): ______________________________________.
[NOTE: The text of this Exhibit A may differ slightly from the text of the notices in the Source Code files of the Original Code. You should use the text of this Exhibit A rather than the text found in the Original Code Source Code for Your
Modifications.]
SugarCRM Public License 1.1.3 – Exhibit B
Additional Terms applicable to the SugarCRM Public License.
I. Effect.
These additional terms described in this SugarCRM Public License – Additional Terms shall apply to the Covered Code under this License.
II. SugarCRM and logo.
This License does not grant any rights to use the trademarks “SugarCRM” and the “SugarCRM” logos even if such marks are included in the Original Code or Modifications.
However, in addition to the other notice obligations, all copies of the Covered Code in Executable and Source Code form distributed must, as a form of attribution of the original author, include on each user interface screen (i) the “Powered by SugarCRM” logo and (ii) the copyright notice in the same form as the latest version of the Covered Code distributed by SugarCRM, Inc. at the time of distribution of such copy. In addition, the “Powered by SugarCRM” logo must be visible to all users and be located at the very bottom center of each user interface screen. Notwithstanding the above, the dimensions of the “Powered By SugarCRM” logo must be at least 106 x 23 pixels. When users click on the “Powered by SugarCRM” logo it must direct them back to http://www.sugarforge.org. In addition, the copyright notice must remain visible to all users at all times at the bottom of the user interface screen. When users click on the copyright notice, it must direct them back to http://www.sugarforge.org