THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”) GOVERN YOUR USE OF THE SOFTWARE UNLESS YOU AND THE LICENSOR HAVE EXECUTED A SEPARATE WRITTEN LICENSE AGREEMENT GOVERNING YOUR USE OF THE SOFTWARE.
The Licensor is willing to license the Software to you only upon the condition that you accept all the terms contained in this Agreement. By signing this Agreement or by downloading, installing or using the Software, you have indicated that you understand this Agreement and accept all of its terms. If you do not accept all the terms of this Agreement, then the Licensor is unwilling to license the Software to you, and you may not download, install or use the Software.
1. GRANT OF LICENSE
a. Evaluation Use and Development Use License. Subject to your compliance with the terms and conditions of this Agreement, the Licensor grants to you a personal, non-exclusive, non-transferable license, without the right to sublicense, for the term of this Agreement, to internally use the Software solely for Evaluation Use and Development Use. Third party software products or modules supplied by the Licensor, if any, may be used solely with the Software, and may be subject to your acceptance of terms and conditions provided by such third parties. When the license terminates you must stop using the Software and uninstall all instances. All rights not specifically granted to you herein are retained by the Licensor. Developer shall make no commercial use of the Software, or any derivative work thereof (including for Developer’s own internal business purposes). Copying and redistributing, in any form, the Software or Developer Application to your direct or indirect customers is prohibited.
b. Production Use License. Subject to your compliance with the terms and conditions of this Agreement including the payment of the applicable license fee, the Licensor grants to you a non-exclusive and non-transferable license, without the right to sublicense, for the term of this Agreement, to: (a) use and reproduce the Software solely for your own internal business purposes (“Production Use”); and (b) make a reasonable number of copies of the Software solely for back-up purposes. Such license is limited to the specific number of CPUs (if licensed by CPU) or instances of Java Virtual Machines (if licenses by virtual machine) for which you have paid a license fee. Use of the Software on a greater number of CPUs or instances of Java Virtual Machines will require the payment of an additional license fee. Third party software products or modules supplied by the Licensor, if any, may be used solely with the Software.
c. No Other Rights.Your rights in, and to make use of, the Software are limited to those expressly granted in this Section 1. You will make no other use of the Software. Except as expressly licensed in this Section, the Licensor grants you no other rights or licenses, by implication, estoppel or otherwise. ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED BY THE LICENSOR OR ITS SUPPLIERS.
2. RESTRICTIONS
Except as expressly provided in Section 1, you will not: (a) modify, translate, disassemble, create derivative works of the Software or copy the Software; (b) rent, lend, transfer, distribute or grant any rights in the Software in any form to any person; (c) provide, disclose, divulge or make available to, or permit use of the Software, by any third party; (d) publish any benchmark or performance tests run on the Software or any portion thereof; or (e) remove any proprietary notices, labels or markings on the Software. You will not distribute the Software to any person on a standalone basis or on an original equipment manufacturer (OEM) basis.
3. OWNERSHIP
As between the parties, the Software is and will remain the sole and exclusive property of the Licensor, including all intellectual property rights therein.
4. TERM
a. In the event you use the Software under the license set forth under Section 1(a), this Agreement will remain in effect for the duration of the evaluation or development period.
b. In the event you use the Software under the license set forth under Section 1(b) this Agreement will remain in effect either (a) for a term of one year if purchased as a yearly subscription license or (b) perpetually if purchased as a perpetual license. A yearly subscription license will renew automatically by one year unless it is terminated with one month prior notice. This Agreement will automatically terminate without notice if you breach any term of this Agreement. Upon termination, you must promptly cease to use the Software and destroy all copies of the Software in your possession or control.
5. SUPPORT SERVICES
If you have purchased this license including Support Services these include Maintenance Releases (Updates and Upgrades), telephone support and email or web-based support.
a. The Licensor will make commercially reasonable efforts to provide an Update designed to solve or by-pass a reported Error. If such Error has been corrected in a Maintenance Release, Licensee must install and implement the applicable Maintenance Release; otherwise, the Update may be provided in the form of a temporary fix, procedure or routine, to be used until a Maintenance Release containing the permanent Update is available.
b. During the License Agreement Term, the Licensor shall make Maintenance Releases available to Licensee if, as and when the Licensor makes any such Maintenance Releases generally available to its customers. If a question arises as to whether a product offering is an Upgrade or a new product or feature, the Licensor’s opinion will prevail, provided that the Licensor treats the product offering as a new product or feature for its end user customers generally.
c. The Licensor’s obligation to provide Support Services is conditioned upon the following: (a) Licensee makes reasonable efforts to correct the Error after consulting with the Licensor; (b) Licensee provides the Licensor with sufficient information and resources to correct the Error either at the Licensor’s site or via remote access to Licensee’s site, as well as access to the personnel, hardware, and any additional software involved in discovering the Error; (c) Licensee promptly installs all Maintenance Releases; and (d) Licensee procures, installs and maintains all equipment, communication interfaces and other hardware necessary to operate the Product.
d. The Licensor is not obligated to provide Support Services in the following situations: (a) the Product has been changed, modified or damaged (except if under the direct supervision of the Licensor); (b) the Error is caused by Licensee’s negligence, hardware malfunction or other causes beyond the reasonable control of the Licensor; (c) the Error is caused by third party software not licensed through the Licensor; (d) Licensee has not installed and implemented Maintenance Release(s) so that the Product is a version supported by the Licensor; or (e) Licensee has not paid the License fees or Support Services fees when due. In addition the Licensor is not obligated to provide Support Services for software code written by the client himself based of the Product.
e. The Licensor reserves the right to discontinue the Support Services should the Licensor, in its sole discretion, determine that continued support for any Product is no longer economically practicable. The Licensor will give Licensee at least three (3) months prior written notice of any such discontinuance of Support Services and will refund any un-accrued Support Services fees Licensee may have prepaid with respect to the affected Product. The Licensor has no obligation to support or maintain any version of the Product or underlying third party platforms (including but not limited to software, JVM, operating system or hardware) for which the Product is supported except (i) the then current version of the Product and underlying third party platform, and (ii) the two immediately preceding versions of the Product and operating system for a period of six (6) months after it is first superseded. The Licensor reserves the right to suspend performance of the Support Services if Licensee fails to pay any amount that is payable to the Licensor under the Agreement within thirty (30) days after such amount becomes due.
6. WARRANTY
a. The Licensor warrants that the Software will be capable of performing in all material respects in accordance with the functional specifications set forth in the applicable documentation for a period of 90 days after the date that you install the Software. In the event of a breach of such warranty, the Licensor shall, at its option, correct the Software or replace such Software free of charge. The foregoing are your sole and exclusive remedies and the Licensor’s sole liability for breach of these warranties. The warranties set forth above are made to and for the benefit of you only. The warranties will apply only if (a) the Software has been properly installed and used at all times and in accordance with the instructions for use; (c) the latest updates have been applied to the software; and (c) no modification, alteration or addition has been made to the Software by persons other than the Licensor or the Licensor’s authorized representative.
7. DISCLAIMER
EXCEPT AS MAY BE PROVIDED UNDER SECTION 6(a), THE LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE LICENSOR OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
The Licensor makes no warranty that the Software Product will meet your requirements or operate under your specific conditions of use. The Licensor makes no warranty that operation of the Software Product will be secure, error free, or free from interruption.
YOU MUST DETERMINE WHETHER THE SOFTWARE PRODUCT SUFFICIENTLY MEETS YOUR REQUIREMENTS FOR SECURITY AND UNINTERRUPTABILITY. YOU BEAR SOLE RESPONSIBILITY AND ALL LIABILITY FOR ANY LOSS INCURRED DUE TO FAILURE OF THE SOFTWARE PRODUCT TO MEET YOUR REQUIREMENTS. THE LICENSOR WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE FOR THE LOSS OF DATA ON ANY COMPUTER OR INFORMATION STORAGE DEVICE.
8. LIMITATION OF LIABILITY
THE LICENSOR’S TOTAL LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO AND WILL NOT EXCEED THE LICENSE FEE PAID BY YOU TO THE LICENSOR FOR THE SOFTWARE. IN NO EVENT WILL THE LICENSOR BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. TO THE EXTENT THAT THE APPLICABLE JURISDICTION LIMITS THE LICENSOR’S ABILITY TO DISCLAIM ANY IMPLIED WARRANTIES, THIS DISCLAIMER SHALL BE EFFECTIVE TO THE MAXIMUM EXTENT PERMITTED.
9. GENERAL
If any provision of this Agreement shall be held to be invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws.
This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and replacing any and all prior agreements, communications and understandings (both written and oral) regarding such subject matter hereof. The parties to this Agreement are independent contractors, and neither has the power to bind the other or to incur obligations on the other’s behalf. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights. Any terms or conditions contained in any purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by the Licensor and will be deemed null and of no effect.
This Agreement will be interpreted and construed in accordance with the laws of Switzerland, without regard to conflict of law principles. The parties hereby consent to the exclusive jurisdiction and venue of courts located in Zurich, Switzerland for resolution of any disputes arising out or relating to this Agreement.
10. DEFINITIONS
“Evaluation Use” means use of the Software solely for evaluation and trial for new applications intended for your Production Use.
“Production Use” means using the Software for internal business purposes only. Production Use does not include the right to reproduce the Software for sublicensing, resale, or distribution, including without limitation, operation on a time sharing or distributing the Software as part of an ASP, VAR, OEM, distributor or reseller arrangement.
“Software” means the Licensor’s software and all its components, documentation and examples included by the Licensor.
“Error” means either (a) a failure of the Product to conform to the specifications set forth in the documentation, resulting in the inability to use, or restriction in the use of, the Product, and/or (b) a problem requiring new procedures, clarifications, additional information and/or requests for product enhancements.
“Maintenance Release” means Upgrades and Updates to the Product which are made available to licensees pursuant to the standard Support Services defined in section 5.
“Update” means either a software modification or addition that, when made or added to the Product, corrects the Error, or a procedure or routine that, when observed in the regular operation of the Product, eliminates the practical adverse effect of the Error on Licensee.
“Upgrade” means a revision of the Product released by the Licensor to its end user customers generally, during the Support Services Term, to add new and different functions or to increase the capacity of the Product. Upgrade does not include the release of a new product or added features for which there may be a separate charge.
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