Software
License and Support Agreement
1. SCOPE. This Software License and Support Agreement (“Agreement”)
is a legal agreement between you (either an individual or an entity
(“Licensee”)) and Embarcadero Technologies, Inc., a Delaware corporation with
offices at 100 California Street, 12th Floor, San Francisco, California 94111,
including its affiliates (“Licensor”). By downloading or unsealing Licensor’s
software and/or documentation (“Products”), Licensee is agreeing to be bound by
the terms of this Agreement. In the event of a conflict between the terms of
this Agreement and any ordering document, the terms of this Agreement will
govern and control. If Licensee is evaluating Licensor software, only the
provisions of Section 22 below will govern such evaluation.
2
LICENSES.
2.1 LICENSE GRANT. Licensor grants to Licensee a non-exclusive, nontransferable, perpetual license (the “License”) to
install this Product within the country (or in the case of a country within the
European Union within the European Union) specified by Licensee’s ship to address
provided by Licensee in the ordering documentation for the Product at the time
of purchase (“Licensed Country”) and solely for the development of software
programs and/or management of its internal systems and data in the following
manner:
(a)
If Licensee has purchased a Network Named User or Named User License, Licensee
may designate one person in Licensee’s organization ("Named User")
the right to install the Product on one or more computers and use the Product within
the Licensed Country, provided that only the Named User uses the Product.
(b) If
Licensee has purchased a Concurrent Users License, Licensee may install the
Product on a network within the Licensed Country to be used concurrently on
different computers by up to the authorized number of users for which Licensee
has purchased a license provided that the Product is accessed and used only in
the Territory. “Territory” means the geographical area in which the Product may
be accessed and used. The use in the Territory shall be subject to the export
restrictions set forth below. Territory may be any one, and only one, of the
following three geographic areas: Americas Territory, EMEA Territory or AsiaPac Territory each as defined below.
The geographic Territories are:
‘Americas Territory’ including and
limited to those geographical areas found within the boundaries of North and
South America (but excluding Cuba).
‘Europe, Middle East and Africa
Territory’ or ‘EMEA Territory’ including and limited to those geographical
areas found within the boundaries of Europe, Middle East and Africa, including
countries in the former Soviet Union (but excluding Syria, Iran and Sudan);
‘Asia Pacific Territory’ or ‘AsiaPac Territory’ including and limited to those
geographical areas found within the boundaries of Asia and Australia/Pacific
(but excluding North Korea).
Except where prohibited by
applicable law, transfer of the Product into a country (or in the case of the
European Union, outside the EU) not identified on the ordering documentation at
the time of purchase is prohibited and will void the license. Temporary usage
of a Product outside the Licensed Country or Territory while a user is traveling for business or personal reasons is permitted.
Licensee usage of the Product may be
restricted to DBMS platforms please look to Licensee’s ordering document(s) for
the specific platforms licensed. Certain editions of the Product may include AppWave and/or apps features. Additional restrictions
applicable to those features may be found in supplemental terms accompanying
them.
2.2. GENERAL TERMS THAT APPLY TO
COMPILED PROGRAMS AND REDISTRIBUTABLES.
2.2.1 Redistributables. The Product may include certain files, libraries and/or
source code specifically designated as "redistributables" by Licensor
in the accompanying printed or on-line documentation
("Redistributables") that are necessary to use works (“Works”)
created using the Product. From time to time, Licensor may designate other
files as Redistributables. Licensee should refer to the documentation,
including any "readme" or "deploy" files provided with the
Product, for additional information regarding Redistributables. Unless
otherwise indicated in a “readme” or “deploy” file, Redistributables may only
be distributed as part of Licensee’s Works, in executable, non-source form.
Subject to the terms and conditions of this Agreement, Licensee may freely
redistribute source code or compiled code that is entirely Licensee’s own and
does not contain any Redistributables.
2.2.2 Licensing of Redistributables. Subject to the terms and conditions of this Agreement
including the restrictions of Section 2.2.3, Licensor grants Licensee the
personal, nonexclusive, nontransferable, and limited
license to: (a) make exact copies of the Redistributables and distribute those
copies solely as components of Licensee’s Works and solely as required for
permitting end users of the Works ("End Users") to install and
execute the Works; (b) install and execute Redistributables, without modification,
on computers that Licensee owns or possesses solely for Licensee’s own internal
use; and (c) sublicense to Licensee’s End Users the personal, nonexclusive, nontransferable right to install and execute
Redistributables, without modification, solely as components of Works and
solely for such End Users' own internal use, subject to End Users' compliance
with the restrictions in Section 5 as to Redistributables. Notwithstanding the
foregoing, Licensee may modify Redistributables that are provided to Licensee
in source form, subject to all the terms of this Section 2.2 and provided that
the modified Redistributables are distributed (i)
only as part of Licensee’s larger Work (ii) the Redistributable file is renamed
and (iii) only executable, non source Redistributables may be distributed. The
rights granted to Licensee under this Section 2.2.2 may not be exercised by
others, including co-developers, regardless of how Licensee might compile,
link, or package Licensee’s Works. These rights apply only to Redistributables
and to no other file, library, source code or other component or derivative
work of the Product. They may be exercised only with respect to Works created
by Licensee using a duly licensed, properly registered copy of the Product.
2.2.3 Certain Restrictions. Regardless of any modifications that Licensee makes and
regardless of how Licensee might compile, link, or package Licensee’s Works:
(a) except as provided in Section 2.2.6, Licensee may not permit Licensee’s End
Users to modify or further distribute Redistributables or use Redistributables
in any program that they create; (b) Licensee may not use Licensor's or any of
its suppliers' names, logos, or trademarks to market Licensee’s Works, except
to state descriptively that Licensee’s Work was written using the Product; (c)
all copies of the Works Licensee create must bear a valid copyright notice,
either Licensee’s own or the Licensor copyright notice that appears on the
Product, and Licensee may not remove or alter any Licensor copyright, trademark
or other proprietary rights notice contained in any portion of the
Redistributables; and (d) Licensee may only distribute Redistributables with
Works that add primary and substantial functionality to the Redistributables
and are not merely a set or subset of any of the Redistributables, and that are
created in accordance with the terms of this Agreement. Licensee shall not
modify or distribute the Redistributables so that any part of it becomes, or
could be interpreted or asserted to be, subject to an Excluded License. An
“Excluded License” is one that requires, as a condition of use, modification or
distribution, that (a) the code be disclosed or distributed in source code
form; or (b) others have the right to modify it.
2.2.4 Relationship with End Users. Except as set forth in Section 2.3, there are no third
party beneficiaries to this Agreement. Consequently, Licensor provides no
warranty at all to any person, other than the limited warranty provided to
Licensee the original purchaser of the Product, as set forth herein, and
Licensee will be solely responsible to Licensee’s End Users (or anyone else who
uses or acquires Works) for support, service, upgrades, or technical or other
assistance (including with respect to any Redistributables included therein),
and such persons will have no right to contact Licensor for any services or
assistance. Licensee will indemnify, defend and hold Licensor, its licensors,
its suppliers and each of their respective employees, officers, directors and
affiliates, harmless from and against any claims or liabilities arising out of
or related to the use, procurement, reproduction or distribution of Licensee’s
Works by third parties.
2.2.5 Third Party Software. The Product, including Redistributables, may include source
code, redistributable files, and/or other files provided by a third party
vendor ("Third Party Product"). Since use of Third Party Product
might be subject to license restrictions imposed by the third party vendor,
Licensee should refer to the on-line documentation (if any) provided with Third
Party Product for any license restrictions imposed by the third party vendor.
In any event, any license restrictions imposed by a third party vendor are in
addition to, not in lieu of, the terms and conditions of this Agreement.
2.2.6 Provisions Applicable to
Component Developers. For the purpose of this Section
2.2.6, the following terms have the following meanings:
"Component" means a
program module or object, developed by Licensee using the Product,
that is designed to interoperate with other program modules/objects
developed by others using a different development environment.
"Component Customer" means
an individual or entity that procures Components from Licensee for the purposes
of: (i) integrating such Components with program
modules/objects developed using a different development environment; and (ii)
distributing such integrated products to their End Users.
"Component Developer"
means an individual or entity that uses the Product to develop Components for
distribution to Component Customers.
If Licensee is a Component
Developer, Licensee may (i) distribute copies of the
Redistributables to Licensee’s Component Customers, and (ii) grant them the
right to distribute copies of the Redistributables along with both Licensee’s
Components and their Works to their End Users only if Licensee have first
entered into an agreement with each such Component Customer that conforms to
this Section 2.2.6 and contains the following provisions (enumerated as
appropriate to the context):
2.2.6.1 Sublicensing of
Redistributables. Subject to the terms and
conditions of this section, including the restrictions of Section 2.2.6.2,
[insert Component Developer name] grants you the personal, nonexclusive, nontransferable, and limited sublicense to: (a) make exact
copies of the Redistributables and distribute those copies solely in
conjunction with your works that embody components procured from [insert
Component Developer name] ("Works"), solely as required for
permitting end users of the Works ("End Users") to install and
execute the Works; (b) install and execute Redistributables, without
modification, on computers that you own or possess solely for your own internal
development use; and (c) further sublicense to your End Users the personal,
nonexclusive, nontransferable right to install and
execute Redistributables, without modification, solely as components of your
Works and solely for such End Users' own internal use, subject to End Users'
compliance with the restrictions in Section 2.2.6.4 as to Redistributables.
2.2.6.2 Certain Restrictions. Regardless of any modifications that you make and
regardless of how you might compile, link, or package your Works: (a) you may
not permit your End Users to modify or further distribute Redistributables or
use Redistributables in any program that they create; (b) you may not use
Licensor's or any of its suppliers' names, logos, or trademarks to market your
Works, except to state descriptively that your Work was written using the
Product; (c) all copies of the Works you create must bear a valid copyright
notice, either your own or the Licensor copyright notice that appears on the
Product, and you may not remove or alter any Licensor copyright, trademark or
other proprietary rights notice contained in any portion of the
Redistributables; and (d) you may only distribute Redistributables with Works
that add primary and substantial functionality to the Redistributables and are
not merely a set or subset of any of the Redistributables.
2.2.6.3 No Warranties. Licensor provides no warranty at all to you or to any
other person. You will be solely responsible to your End Users (or anyone else
who uses or acquires Works) for support, service, upgrades, or technical or
other assistance (including with respect to any Redistributables included
therein), and such persons will have no right to contact Licensor for any
services or assistance. You will indemnify, defend and hold Licensor, its
licensors, its suppliers and each of their respective employees, officers, directors
and affiliates, harmless from and against any claims or liabilities arising out
of or related to the use, procurement, reproduction or distribution of your
Works by third parties.
2.2.6.4 Restrictions. You may not: (a) modify, adapt, alter, translate, or create
derivative works of the Redistributables; (b) lease, rent or loan the
Redistributables to any third party; (c) sublicense, distribute or otherwise
transfer the Redistributables or any component thereof to any third party
except as expressly authorized in this section; (d) reverse engineer,
decompile, disassemble, or otherwise attempt to derive the source code of the
Redistributables; (e) remove, alter, or obscure any confidentiality or
proprietary notices (including copyright and trademark notices) of Licensor or
its suppliers on the Redistributables; (f) allow third parties to access or use
the Redistributables such as in a time-sharing arrangement or use the
Redistributables as part of a service bureau or otherwise for the use or
benefit of third parties; or(g) reproduce or use the Redistributables except as
expressly authorized under this section. Furthermore, you may not permit your
End Users to conduct the restricted activities limited by items (a) through (e)
and (g) above insofar as they apply to Redistributables, and such End User's
sublicense rights to the Redistributables are conditioned upon compliance with
such limitations. The limitations in this Section apply equally to your use of
the Redistributables, in whole or in part, including any component or
Redistributables.
2.2.7 Restrictions. You shall not and you shall not permit your End Users to (a)
modify, adapt, alter, translate, or create derivative works of the
Redistributables or merge the Redistributables with other software other than
as described in the Product's accompanying documentation or as approved of in
writing by Embarcadero; (b) lease, rent or loan the Redistributables to any
third party; (c) sublicense, distribute or otherwise transfer the
Redistributables or any component thereof to any third party except as
expressly authorized in this Agreement; (d) reverse engineer, decompile,
disassemble, or otherwise attempt to derive the source code of the
Redistributables; (e) remove, alter, or obscure any confidentiality or proprietary
notices (including copyright and trademark notices) of Embarcadero or its
suppliers on the Redistributables; or (f) reproduce or use the Redistributables
except as expressly authorized under herein. End User's sublicense rights to
the Redistributables are conditioned upon compliance with such limitations.
2.2.8 Other Rights. Contact Licensor for the applicable royalties due and other
licensing terms for all other uses or distribution of the Redistributables.
2.3 PROGRAM NOTES. The following terms and conditions ("Program
Notes") are specific to certain editions, versions and components of the
Product and are in addition to the provisions of Sections 2.1 and 2.2. If any
provision of the Program Notes applicable to the Product conflicts with any
other provision of this Agreement, then the provision of the Program Notes will
supersede and control.
ADDITIONAL LICENSE TERMS APPLICABLE
TO STARTER EDITION
In the event Licensee has obtained a
Starter Edition license the following terms hereby apply. To the extent they
conflict with the license grant in Section 2.1, these terms shall control.
Licensee may use the Product to develop software (i)
for which Licensee does not charge directly or indirectly a fee or receive
other consideration including but not limited a license fee, a service fee, a
development fee, a consulting fee, a subscription fee, a support fee, a hosting
fee or the like and (ii) for which Licensee only charges fees (including but
not limited a license fee, a service fee, a development fee, a consulting fee,
a subscription fee, a support fee, a hosting fee or the like) that
cumulatively, on an annual basis, do not exceed USD$1000. In the event any
(for profit or non-profit) company elects to license the software then (i) the total company revenues may not exceed USD$1000 and
(ii) the total number of Starter Edition licenses deployed may not exceed
5.
ADDITIONAL LICENSE TERMS APPLICABLE
TO SOFTWARE LICENSED FOR EDUCATIONAL USE
Subject to the terms and conditions
of this Agreement, Licensee may exercise Licensee’s rights under this Agreement
to use the Product and to create Works solely for Licensee’s own personal use
in providing or receiving instruction within the limited scope of guided
computer programming and/or software training courses in which Licensee are a
direct and personal participant, either as student or instructor
("Courses"). Licensee may only reproduce, distribute and use Works,
in source or object code form, to other participants of the Courses and then
only for educational or training purposes. Licensee may not use the Products or
Works created with the products for any commercial, business, governmental or
institutional purpose of any kind, except to the extent Licensee are an
instructor teaching a Course. All rights not specifically granted to Licensee
herein are retained by Licensor.
ADDITIONAL LICENSE TERMS APPLICABLE
TO DELPHI, C++ BUILDER AND EMBARCADERO PRISM, STARTER PROFESSIONAL AND
PROFESSIONAL ACADEMIC EDITIONS
Subject to the terms and conditions
of this Agreement, Licensor grants to Licensee as the licensed user of the
Product the limited right to use that portion of the Product identified as
"dbExpress", in executable form only, to
access a local database installed on the same machine as the Work. Licensee may
not use that portion of the Product identified as "dbExpress"
in association with a database located on a different machine other than the
machine on which the Works are installed.
ADDITIONAL LICENSE TERMS APPLICABLE
TO THIRD PARTY SOFTWARE
Certain
components of the Product use or incorporate third-party software programs
and/or libraries (but excluding Separately Licensed Code) ("Third-Party
Software"). Licensee agree that Licensor's
third- party licensors and suppliers are intended third party beneficiaries of
all terms and conditions of this Agreement intended to protect intellectual
property rights in the Product (including the Third-Party Software) and limit
certain uses thereof.
ADDITIONAL LICENSE TERMS FOR
INTERBASE
The portion of the Product
identified as InterBase is not a Redistributable and
is licensed for development purposes only. This License does not permit
Licensee to use the InterBase portion of this Product
for any commercial, business, governmental institutional or other purpose of
any kind, other than development and testing of Works. Licensee must obtain a
separate InterBase deployment license from
Embarcadero before deploying or distributing any Work that uses InterBase.
Separately Licensed Code
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 Agreement. Each of the components listed below is
considered "Separately Licensed Code". Separately Licensed Code is
licensed to Licensee under the terms of the applicable third party license
agreement(s) set forth in the thirdpartylicense
file that accompanies the Product. Notwithstanding any of the terms in this
Agreement, or any other agreement Licensee may have with Licensor, the terms of
such third party license agreement(s) governs Licensee’s use of all Separately
Licensed Code unless otherwise noted below.
Future Product updates or fixpacks may contain additional Separately Licensed Code.
Licensee acknowledge that Licensee have read and agree to the license
agreements contained in the thirdpartylicense
file. If Licensee do not agree to the terms of these
third party license agreements, Licensee may not use the Separately Licensed
Code.
Note: Notwithstanding any of the
terms in the third party license agreement, the Agreement, or any other
agreement Licensee may have with Licensor:
(a) Licensor provides this
Separately Licensed Code to Licensee WITHOUT WARRANTIES OF ANY KIND;
(b) LICENSOR DISCLAIMS 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 SEPARATELY LICENSED CODE;
(c) Licensor is not liable to
Licensee, and will not defend, indemnify, or hold Licensee harmless for any
claims arising from or related to the Separately Licensed Code; and
(d) Licensor is not 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 Separately Licensed Code.
The following are Separately License
Code:
Software identified in the file
called: thirdpartylicense
2.4. Command Line Compiler. Licensee may install the command line compiler on a
separate computer from the Product itself, provided that the sole purpose of
doing so is to allow that computer to perform unattended building of
applications. The Command Line Compiler shall not be considered a
‘redistributable’.
3. TERM. This Agreement shall be effective on the date first
accessed by Licensee.
4. TERMINATION. Licensor may immediately terminate this Agreement without
further obligation or liability: (a) with respect to a License, if Licensee
fails to pay the licensee fee due for the License hereunder and continues to be
delinquent for a period of thirty (30) days after the last day on which payment
is due, (b) if a petition alleging insolvency is filed by or against Licensee
and not stayed within 60 days, or a receiver is appointed for any part of
Licensee’s business, or its assets are assigned for the benefit of creditors;
or (c) if Licensee commits any material breach of this Agreement and fails to
remedy such breach within thirty (30) days after written notice by Licensor of
such breach. The termination of this Agreement shall not affect: (i) the obligation of either party pursuant to any License
which has not been terminated, and which shall therefore remain in effect in
accordance with its terms; or (ii) the survival of the representations and
warranties contained herein. Within 60 days of the termination of any License,
Licensee shall return to Licensor the terminated Product and all related
documentation, and copies thereof. Licensee shall promptly certify in writing
to Licensor that all copies of the Product have been removed from each computer
upon which the Product was installed, and that any copies not returned have
been destroyed.
5. TITLE AND PROPRIETARY
INFORMATION.
5.1 TITLE AND COPYRIGHT. Licensor represents and warrants that it has the full rights
to license the Product to Licensee and to perform its obligations under this
Agreement. All title and copyrights and other industrial, intellectual and
marketing rights in and to the Product, including but not limited to all
modifications thereto made by or for any person, are owned by Licensor and/or
its affiliates and licensors, and are protected by both United States copyright
law and applicable international copyright treaties. Licensee agrees not to
claim or assert title to or ownership of the Product. Except
as expressly set forth herein, Licensee may copy the Product only for backup or
archival purposes, and for no other purpose. Licensee will not remove or
alter any copyright or proprietary notice from copies of the Product, and
copies made by or for Licensee shall bear all copyright, trade secret,
trademark and any other intellectual property right notices on the original
copies. Title and all risk of loss to Licensor hardware components (“Hardware”)
purchased by Licensee under a separate ordering document shall pass to Licensee
upon delivery to a common carrier, FOB Licensor’s facility, and shall be deemed
accepted at that time. All rights not specifically granted to licensee herein
are retained by Embarcadero.
5.2 RESTRICTIONS. Licensee acknowledges and agrees that the Product contains
valuable trade secrets of Licensor and/or its affiliates and licensors, and
that this Agreement establishes a confidential relationship between the parties
with respect to this information. Subject to applicable law, Licensee agrees
(a) not to decompile, disassemble, reverse engineer or otherwise attempt to
derive the Product source code from object code except to the extent expressly
permitted by applicable law or treaty despite this limitation; (b) not to sell,
rent, lease, license, sublicense, display, modify, time share, outsource or
otherwise transfer the Product to, or permit the use of the Product by, any
third party; and (c) to preserve the confidential nature of the proprietary and
trade secret information by retaining and using the Product in trust and
confidence, solely for its internal use, and using the degree of care and
protection that Licensee would use for its own information of similar
importance, but in no event less than a reasonable degree of care and
protection, to prevent the unauthorized use, copying, publication or
dissemination of the Product and Licensor’s confidential information learned
from Licensee’s use of the Product. Licensee will not export or re-export the
Product without both the written consent of Licensor and the appropriate U.S.
and/ or foreign government license(s) or license exception(s). Licensor shall
have the right to seek injunctive relief against any actual or threatened
violation of these restrictions, in addition to any other available remedies.
Additional restrictions may apply to certain files, programs or data supplied
by third parties and embedded in the Product; consult the Product installation
instructions or release notes for details. Licensee agrees to promptly report
to Licensor any violations of these provisions by Licensee’s employees,
consultants or agents of which Licensee is aware.
6. SUPPORT AND MAINTENANCE
(“Support”). Licensee is entitled to the Support
services defined below as part of an annual Support fee.
6.1 ELECTRONIC SERVICES. To the extent that electronic services are available,
Licensee may electronically access, at no charge, Support services which will
be available twenty four (24) hours a day, seven (7) days per week. Such
electronic services may include, but are not limited to: incident submission,
case management and Product Releases.
6.2 SUPPORT. Support shall be applicable only to the Product licensed or
sold under this Agreement for which Support fees have been paid. Support will
not cover any adaptation or modification of the Product made by Licensee or any
third party. Licensor may discontinue Support for any Product at any time provided
that Major Releases will be covered for eighteen months after initial release.
“Major Release” means a significant release containing new features or
functionality and designated as an “upgrade” by Licensor. The email and phone
support hours shall be as identified on the Embarcadero support website.
Support shall consist of:
a.
Make available a regional telephone
number or other electronic support to Licensee in order for the Licensee to
report Product issues and to receive assistance. Licensor will analyze the
incident and verify the existence of the problem and provide direction and
assistance in resolving the incident; and
(b) Make available
all updates, upgrades and other changes (“Releases”) that Licensor, at its sole
discretion, makes or adds to the Product and which Licensor furnishes, without
charge, to other licensees of the Product that are enrolled in Support.
Requests for Releases will only be honored during the
support term. Physical media requires an additional charge.
6.3 TERMINATION OF SUPPORT. Licensee will pay Licensor the applicable Support fees net
30 days from the support effective date and thereafter 30 days prior to each
renewal date. Licensee may cancel enrollment in
Support upon written notice to Licensor at least thirty (30) days prior to the
next Support Anniversary Date. If Licensee’s Support has lapsed, Licensee may
renew by paying a reinstatement fee as determined by Licensor at its sole
discretion. In addition, Licensee must pay the annual charge for Support for
the next year in advance. Such reinstatement date shall then be considered the
Support Anniversary Date. Licensee agrees not to modify the Product without the
prior written approval of Licensor. Unapproved alterations to the Product shall
void any obligation by Licensor to provide Support for the Product, pursuant to
this Section 6, during the warranty period and any subsequent period in which
Licensee is enrolled in Support.
6.4 CHANGE OF SUPPORT FEES. Licensor reserves the right to change its then current
published list prices for the Products and its charge for Support at any time
prior to renewal. Any such change to Support shall not take effect until the
completion of the then current support term.
6.5 SERVICES; UPDATES; PRODUCT
CHANGES. Licensor is not required under this
Agreement to provide any installation, training or other services to licensee.
Such services, if available, must be purchased separately. If Licensee
purchases support and Licensor provides licensee with a new release, error
correction, update, upgrade or other modification to the Product, or Licensee
separately purchases an upgrade such modification or upgrade will be deemed
part of the Product, and subject to the terms of this License, unless the
modification is expressly provided subject to a separate license agreement. If
licensee have acquired an upgrade version of the Product (whether through
support or purchase of a separate upgrade), such upgrade constitutes a single
Product together with the copy of the Product that licensee upgraded. This means
that, although Licensee may have two sets of Product media and/or two license
keys, licensee still has only one license. Therefore, licensee may not transfer
the original copy of the Product or license key to any other party or user.
Licensor reserves the right at any time not to release or to discontinue
release of any Product and to alter prices, features, specifications,
capabilities, functions, licensing terms, release dates, general availability
or other characteristics of any future releases of the Product. If licensee
acquires a Network Named upgrade or Concurrent upgrade license which includes
rights to older product versions, then Licensee must deactivate the upgraded
license upon installation of the upgrade license provided that the product version(s)
of the upgraded license are also included in the upgrade license.
7. PAYMENT SCHEDULE. Payment for all License and Support fees shall be due thirty
(30) following receipt by Licensee of an invoice by Licensor specifying
the amounts due, unless otherwise set forth in an ordering document accepted by
Licensor in writing. Licensor shall invoice Licensee for the initial Support
fees upon the initial order of the licensed Products (the “Support Anniversary Date”).
Sixty (60) days prior to each annual Support Anniversary Date of the licensed
Products, Licensor shall invoice Licensee the then-current fee for the next
year of Support.
8. LIMITED WARRANTY AND
CONDITIONS. Licensor warrants and conditions for
a period of sixty (60) days that the media on which the Product is furnished
will be, under normal use, free from defects in material and workmanship.
Licensor also warrants that the Product will perform in all material respects
with the operating specifications contained in the accompanying Product
documentation, for a period of sixty (60) days from the date of shipment. Other
than with respect to any indemnification hereunder, Licensor’s entire liability
and Licensee’s exclusive remedy under this provision will be for Licensor to
use commercially reasonable efforts to remedy defects covered by this warranty
and condition within a reasonable period of time or, at Licensor’s option,
either to replace the defective Product or to refund the amount paid by Licensee
to license the use of the Product. Licensor does not warrant or condition that
the operation of the Product will be uninterrupted or error free or that all
software defects can be corrected. This warranty and condition shall not apply
if (a) the Product is not used in accordance with applicable documentation; (b)
Product defect has been caused by Licensee’s malfunctioning equipment; or (c)
Licensee has made modifications to the Product not expressly authorized in
writing by Licensor. No employee, agent, or representative of Licensor has the
authority to bind Licensor to any oral representations, warranties or
conditions concerning the Product. Any written representation, warranty or
condition not expressly contained in this Agreement shall not be enforceable.
THIS WARRANTY AND CONDITION IS IN
LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR
IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WITHOUT LIMITATION THOSE OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, REGARDING
THIS AGREEMENT OR ANY PRODUCT (S) LICENSED HEREUNDER.
9. LIMITATION OF LIABILITY. Neither Licensor nor Licensee shall be liable to the other
party for consequential, indirect, incidental, exemplary, special or punitive
damages from any cause, whether in contract, tort (including negligence) or
otherwise, arising out of or in any way connected with the design, manufacture, sale, support or use of the Product. Except as
provided in Section 10 below, in no event shall Licensor’s or Licensee's
liability for direct damages resulting from the use of the Product exceed the
amount paid by the Licensee to license the use of the Product.
10. INDEMNIFICATION FOR
INFRINGEMENT. Licensor will defend or settle, at
its own expense, any claim against Licensee asserting a patent, copyright,
trademark, trade secret or proprietary right violation which concerns the
Product used within the scope of the License hereunder. Licensor shall
indemnify Licensee against any loss, expense or liability including reasonable
attorney's fees from any damages alleged against Licensee. However, Licensee
must promptly notify Licensor in writing after Licensee first receives notice
of any such claim, action or allegation of infringement and, Licensor shall
have sole control of the defense of any action and
all negotiations for its settlement or compromise, with the reasonable
assistance of Licensee. Licensor shall not be liable for any costs or
expenditures incurred by Licensee without Licensor’s prior written consent. If
an injunction or order is obtained against Licensee’s use of the Product by
reason of the allegations of infringement, or if in Licensor’s or Licensee's
opinion the Product is likely to become the subject of a claim of infringement,
Licensor shall, at its expense:
(a) Procure for
Licensee the right to continue using the Product; or
(b) Modify or
replace the Product with a compatible, functionally equivalent, non-infringing
Product(s); or
(c) If neither (a)
nor (b) is reasonably practical in Licensor’s judgment, remove the Product and
issue Licensee a pro rata credit based upon the License fees paid for the
Product prorated over a thirty-six (36) month period from the date of shipment
of the Product. Thereafter, termination shall proceed in accordance with the
terms of Section 4.
This Section 10 is Licensor’s sole
liability and Licensee’s exclusive remedy in the event of intellectual property
infringement of any kind.
11. VERIFICATION. If Licensee is entering into this Agreement as an entity
other than an individual (e.g., as a corporation, a partnership, or other
organization), Licensor may, at its expense, audit the number of copies of the
Product in use by Licensee and the designated CPU(s) on which the Product is
installed. Any such audit shall be conducted during regular business hours at
Licensee’s facilities and shall not unreasonably interfere with Licensee’s
business activities. If an audit reveals that LICENSEE has underpaid fees to
Licensor, Licensee shall be invoiced for such underpaid fees (based on the list
prices in effect at the time the audit is completed); and if the underpaid fees
exceed 5% of the License fees already paid, then Licensee shall also pay
Licensor the reasonable costs of conducting the audit.
12. ASSIGNMENT. Neither this Agreement nor any of Licensee’s rights,
licenses or obligations hereunder may be assigned or delegated by Licensee to
any third party, including without limitation in connection with a merger,
acquisition, reorganization, outsourcing, change of control or under any other circumstance.
Any such purported assignment or delegation shall be void and of no effect and
shall constitute an incurable breach of this Agreement resulting in the
automatic termination of this Agreement and all rights and licenses granted to
Licensee hereunder.
13. U.S. GOVERNMENT RESTRICTED
RIGHTS; EXPORT COMPLIANCE. Use,
duplication, or disclosure by the U.S. Government is subject to restrictions
set forth in FAR Section 52.227-14 Alt. III (g)(3), FAR Section 52.227-19,
DFARS 252.227-7014 (b) or DFARS 227.7202, as amended from time to time.
Contractor/Manufacturer is Embarcadero Technologies, Inc., 100 California
Street, 12th Floor, San Francisco, CA 94111. Any
contract notices should be sent to this address. Licensee may not download,
use, transfer, export or re-export the Product except as authorized by United
States law and the laws of the jurisdiction in which the Product was obtained.
In particular, but without limitation, Product may not be, downloaded, used,
exported or re-exported (a) in or to (or by or to a national or resident of)
any country then under U.S. economic embargo (currently including, but not
necessarily limited to, Cuba, Iran, North Korea, Sudan, and Syria), (b) or any
end user who Licensee’s knows or has reason to know will utilize them in the
design, development or production of nuclear, chemical or biological weapons,
or rocket systems, space launch vehicles, and sounding rockets, or unmanned air
vehicle systems (c) to any person or entity on the U.S. Treasury Department's
list of Specially Designated Nationals or on the U.S. Department of
Commerce's Denied Persons List or Entity List. By downloading or using
Products, Licensee represents and warrants that it is not located in, under
control of, or a national or resident of any such country or on any such list.
14. SEVERABILITY. Should any provision of this Agreement be determined to be
invalid, ineffective, or unenforceable, under present or future laws, the
remainder of the provisions shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
15. NOTICE. Notices to either party shall be in writing to the address
indicated in this Agreement (or as later amended) and deemed effective when
received, or twenty-four (24) hours following the date of the postmark, if sent
by prepaid certified mail, return receipt requested.
16. REFERENCING. If applicable, Licensee agrees that Licensor may refer to
the corporate name of Licensee as a customer of Licensor, both internally and
in externally published media; any additional disclosure by Licensor with
respect to Licensee shall be subject to the prior written approval of Licensee.
17. FORCE MAJEURE. Neither party will be in default of its obligations under
this Agreement to the extent its performance is delayed or prevented by causes
beyond its reasonable control, including but not limited to acts of God,
earthquake, flood, embargo, riots, sabotage, utility or transmission failures,
fire or labor disturbances. The party facing an event
of force majeure shall use its commercially reasonable efforts in order to
remedy that situation as well as to mitigate its effects.
18. WAIVER. The waiver by a party of one breach or default by another
party under this Agreement will not constitute the waiver of any subsequent
breach or default. No waiver shall be effective unless made in writing and
signed by an authorized representative of the waiving party.
19. SURVIVAL. In the event of expiration or termination of this Agreement
for any reason, the provisions of Sections 1, 4, 5, 7-10 and 13-20 shall
survive in accordance with their respective terms.
20. ENTIRE AGREEMENT. Licensee agrees that this is the complete and exclusive
statement of the agreement between the parties, and supersedes all prior
proposals and understandings, oral and written, relating to the subject matter
of this Agreement.
21. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without regard to conflicts
of law principles. The provisions of the UN Convention on Contracts for the
International Sale of Goods shall not apply.
22. EVALUATION LICENSE. Licensor is the owner and provider of certain proprietary
software and documentation that Licensee desires to have tested and evaluated
on the terms and conditions of this Section 22(“Software”). For a term not to
exceed fourteen (14) days (“Evaluation Period”) without Licensor’s written
authorization, the Software will be provided solely for evaluation purposes for
Licensee’s own internal use (“Evaluation”) and Licensee is hereby granted a nontransferable, nonexclusive, limited license to operate
and use the Software for such Evaluation. The Evaluation Period begins on the
date Licensee downloads or unseals the Software. At the end of the Evaluation
Period, Licensee shall cease using and shall return the Software to Embarcadero
in original condition. This requirement applies to copies of the Software in
all forms (partial and complete) on all types of media and computer memory and
whether or not merged into other materials. Licensee agrees not to cause or
permit the reverse engineering, disassembly, modification, translation or decompilation of the Software. Licensee shall not copy the
Software, or write or develop any derivative software. Licensee shall not
release the results of any Evaluation testing or other performance results of
the Software conducted under this Section 22 to any third party without
Licensor’s prior written consent for each such release.
23. Hazardous Uses. The Product is not intended for use, and Licensee may not
use or allow others to use the Product, in connection with any application
requiring fail-safe performance such as the operation of nuclear power
facilities, air traffic control or navigation systems, weapons control systems,
life support systems, or any other system whose failure could lead to injury,
death, environmental damage or mass destruction. Licensee agree that
Embarcadero will have no liability of any nature, and Licensee is solely
responsible, for any expense, loss, injury or damage incurred as a result of
such use of the Product
The SOFTWARE provided for THIS
EVALUATION IS DELIVERED "AS IS, WHERE IS" AND LICENSOR SPECIFICALLY
DISCLAIMS ANY AND ALL warrantIES of any kind
including warranties of merchantability AND fitness for a particular purpose.
Embarcadero does not warrant that the Products will operate without
interruption or be error free.
Sections 8, 11, 12 and 21 of the
Agreement shall be deemed incorporated by this reference in the Evaluation license
granted under this Section 22.
MICROSOFT SOFTWARE LICENSE TERMS
MICROSOFT DIRECTX END USER RUNTIME
These license terms are an agreement
between Microsoft Corporation (or based on where you live, one of its
affiliates) and you. Please read them. They apply to the software named above,
which includes the media on which you received it, if any. The terms also apply
to any Microsoft
* updates,
* supplements,
* Internet-based services, and
* support services
for this software, unless other terms accompany those items. If
so, those terms apply.
BY USING THE SOFTWARE, YOU ACCEPT
THESE TERMS. IF YOU DO NOT ACCEPT THEM, DO NOT USE THE SOFTWARE.
If you comply with these license
terms, you have the rights below.
1. INSTALLATION AND USE RIGHTS. You
may install and use any number of copies of the software on your devices.
2. SCOPE OF LICENSE. The software is
licensed, not sold. This agreement only gives you some rights to use the
software. Microsoft reserves all other rights. Unless applicable law gives you
more rights despite this limitation, you may use the software only as expressly
permitted in this agreement. In doing so, you must comply with any technical
limitations in the software that only allow you to use it in certain ways. You
may not
* work
around any technical limitations in the software;
* reverse engineer, decompile or
disassemble the software, except and only to the extent that applicable law
expressly permits, despite this limitation;
* make more copies of the software
than specified in this agreement or allowed by applicable law, despite this
limitation;
* publish the software for others to
copy;
* rent, lease or lend the software;
* transfer the software or this
agreement to any third party; or
* use the software for commercial
software hosting services.
3. BACKUP COPY. You may make one
backup copy of the software. You may use it only to reinstall the software.
4. DOCUMENTATION. Any person that
has valid access to your computer or internal network may copy and use the
documentation for your internal, reference purposes.
5. EXPORT RESTRICTIONS. The software
is subject to United States export laws and regulations. You must comply with
all domestic and international export laws and regulations that apply to the
software. These laws include restrictions on destinations, end users and end
use. For additional information, see www.microsoft.com/exporting.
6. SUPPORT SERVICES. Because this
software is “as is,” we may not provide support services for it.
7. ENTIRE AGREEMENT. This agreement,
and the terms for supplements, updates, Internet-based services and support
services that you use, are the entire agreement for the software and support
services.
8. APPLICABLE LAW.
a. United States. If you acquired
the software in the United States, Washington state law governs the
interpretation of this agreement and applies to claims for breach of it,
regardless of conflict of laws principles. The laws of the state where you live
govern all other claims, including claims under state consumer protection laws,
unfair competition laws, and in tort.
b. Outside the United States. If you acquired the software in
any other country, the laws of that country apply.
9. LEGAL EFFECT. This agreement
describes certain legal rights. You may have other rights under the laws of
your country. You may also have rights with respect to the party from whom you
acquired the software. This agreement does not change your rights under the
laws of your country if the laws of your country do not permit it to do so.
10. DISCLAIMER OF WARRANTY. THE
SOFTWARE IS LICENSED “AS-IS.” YOU BEAR THE RISK OF USING IT. MICROSOFT GIVES NO
EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS. YOU MAY HAVE ADDITIONAL CONSUMER
RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE. TO THE EXTENT
PERMITTED UNDER YOUR LOCAL LAWS, MICROSOFT EXCLUDES THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
11. LIMITATION ON AND EXCLUSION OF
REMEDIES AND DAMAGES. YOU CAN RECOVER FROM MICROSOFT AND ITS SUPPLIERS ONLY
DIRECT DAMAGES UP TO U.S. $5.00. YOU CANNOT RECOVER ANY OTHER DAMAGES,
INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES.
This limitation applies to
* anything
related to the software, services, content (including code) on third party
Internet sites, or third party programs; and
* claims for breach of contract,
breach of warranty, guarantee or condition, strict liability, negligence, or
other tort to the extent permitted by applicable law.
It also applies even if Microsoft
knew or should have known about the possibility of the damages. The above
limitation or exclusion may not apply to you because your country may not allow
the exclusion or limitation of incidental, consequential or other damages.