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1 Orion Application Server License Agreement
2
3 IronFlare AB ("IronFlare") grants the Licensee (the "Licensee") a non-exclusive
4 and non-transferable License (as hereinafter defined) for the software Orion
5 Application Server (the "Software"), including Documentation (as hereinafter
6 defined). The License permits the Licensee to Use (as hereinafter defined) the
7 Software on a single computer system, (the "System") for use only upon the
8 terms and subject to the conditions contained herein.
9
10 1 Definitions
11
12 1.1 "Confidential Information" means this Agreement, all Software listings,
13 Documentation, information, data drawings, benchmark tests, specifications,
14 trade secrets, object code and machine-readable copies of the Software, source
15 code relating to the software, and any other proprietary information supplied
16 to Licensee by IronFlare.
17
18 1.2 "Documentation" means all online help files or written instructions
19 regarding the use of the Software.
20
21
22 1.3 "Use" means utilisation of the Software by loading, transmitting or copying
23 the same into temporary (e.g. RAM) or permanent memory (e.g. hard disk, CD-ROM
24 or other storage device) of the System for the processing of the Software.
25
26
27 2. License
28
29 2.1 IronFlare hereby grants the Licensee a non-exclusive, non-transferable and
30 non-assignable right to Use the Software on one (1) System and use the
31 Documentation in connection with Use of the Software (the "License").
32
33 2.2 The validity of the License is conditional on payment by the Licensee of a
34 license fee for the Software in accordance with this Agreement. The Software
35 is NOT free or shareware.
36
37
38 2.3 Copies of the Software made in accordance with this Agreement, are covered
39 by the provisions of this Agreement.
40
41
42 3. License Restrictions
43
44
45
46 3.1 Licensee agrees that it will itself, or through any parent, subsidiary,
47 affiliate, agent or other third party:
48
49
50 3.1.1 not sell, lease, rent, loan, license, sublicense, redistribute, encumber
51 or otherwise deal with any portion of the Software or Documentation or
52 otherwise permit anyone other than the Licensee either directly or indirectly,
53 for payment or otherwise, to make use of or otherwise dispose of the Software
54 or the Documentation; the making of copies of the Software or the
55 Documentation for private use is therefore prohibited;
56
57
58 3.1.2 not decompile, disassemble, or reverse engineer binary portions of the
59 Software or otherwise attempt to derive the source code from such portions,
60 unless and to the extent required under national law;
61
62
63 3.1.3 not create any derivative software or any other software program from the
64 Software or based on the Confidential Information provided by IronFlare;
65
66
67 3.1.4 not use the Software to provide processing services to third parties,
68 commercial timesharing, rental or sharing arrangements, or on a "service
69 bureau" basis;
70
71
72 3.1.5 not provide, disclose, divulge or make available to, or permit use of the
73 Software, the Documentation or the Confidential Information by persons other
74 than Licensee's employees;
75
76
77 3.1.6 maintain accurate and up-to-date records of the number and location of
78 all copies of the Software;
79
80
81 3.1.7 supervise and control that use of the Software and the fulfillment of the
82 Licensee's other obligations is made in accordance with the terms of this
83 Agreement.
84
85
86 4. License Fee
87
88
89
90 4.1 In consideration of the rights granted herein, the Licensee shall pay
91 IronFlare the license fee indicated on the Internet site as the Licensee
92 downloaded the Software or any other site that IronFlare informs the Licensee
93 of (the "the License Fee") before the first Use of the Software by the
94 Licensee. In the event of overdue payment, IronFlare reserves the right to
95 charge interest on the amount due at the rate of two per cent per month until
96 the date of payment.
97
98
99 4.2 If the License is prolonged for another one-year-period according to clause
100 6.1 below, the Licensee shall pay to IronFlare the License Fee or, if
101 applicable, the adjusted License Fee that IronFlare has informed the Licensee
102 of.
103
104
105 4.3 The Licensee shall reimburse IronFlare for all sales, use or other taxes,
106 fees or duties not based on income, arising out of this Agreement.
107
108
109 4.4 Payments to IronFlare according to this Agreement shall be made in
110 accordance with IronFlare's instructions on the Internet site as the Licensee
111 downloaded the Software or any other site that IronFlare informs the Licensee
112 of.
113
114
115 5. Upgrades
116
117
118
119 5.1 Upon payment to IronFlare of the License Fee, the Licensee shall be
120 entitled to receive new versions of the Software during the term of this
121 Agreement ("Upgrades"). Upgrades form a part of the Software and this
122 Agreement shall apply to such Upgrades.
123
124
125 5.2 Upgrades will be made available at the same Internet site as the Licensee
126 downloaded the Software or any other site that IronFlare informs the Licensee
127 of.
128
129
130 5.3 The Licensee may make queries or report errors to IronFlare by means of
131 Electronic Mail. IronFlare is under no obligation to support the Software or
132 to make error corrections.
133
134
135 6. Term and Termination
136
137
138
139 6.1 This Agreement shall become effective on the first date on which the
140 Licensee Uses the Software (the "Effective Date") and will expire one (1) year
141 from the Effective Date ("the Expiry Date"), unless terminated earlier as
142 provided in this Agreement. This Agreement will be automatically prolonged for
143 an additional one-year-period from the Expiry Date if the Licensee not later
144 than on the Expiry Date pays to IronFlare the Licensee Fee as stated in clause
145 4.2 above for the following one-year-period.
146
147
148 6.2 Notwithstanding any provisions contained herein, this Agreement may be
149 terminated with immediate effect by IronFlare upon written notification, if
150 Licensee substantially fails to fulfill the Licensee's obligations according
151 to this Agreement.
152
153
154 6.3 The Licensee may terminate this License at any time by destroying the
155 Software, Documentation and all copies thereof.
156
157
158 6.4 Upon termination, the Licensee shall (i) immediately return to IronFlare
159 all Confidential Information and (ii) pay to IronFlare any and all amounts
160 outstanding under this Agreement.
161
162
163 6.5 The termination of this Agreement shall be without prejudice to the rights
164 of the parties accrued up to the date of such expiry or termination. The
165 Licensee shall not be entitled to any refund of fees and other sums paid to
166 IronFlare.
167
168
169 6.6 Clauses 7, 13 and 14 shall survive termination of this Agreement.
170
171
172 7. Intellectual Property Rights
173
174
175
176 7.1 The Licensee acknowledges that any and all trademarks, copyrights, patents
177 and other intellectual property rights, owned by IronFlare, used or embodied
178 in or connected with the Software and the Documentation, shall be and remain
179 the exclusive property of IronFlare.
180
181
182 7.2 This License does not entail the transfer to the Licensee of IronFlare's
183 rights in the form of, among other things, copyright or, where appropriate,
184 patent rights or any other intellectual property rights to the Software or the
185 Documentation. The License does not include a special patent license, and the
186 Licensee may not, therefore, make use of any actual patent.
187
188
189 8. Warranty and Limitation of Liability
190
191
192
193 8.1 THE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND, EITHER
194 EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
195 MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
196
197
198 8.2 IronFlare DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR- FREE(INCLUDING,
199 WITHOUT LIMITATION; FREE FROM VIRUS ETC.) OR THAT SUCH ERRORS WILL BE
200 CORRECTED, AND THE LICENSEE IS SOLELY RESPONSIBLE FOR ALL COSTS AND EXPENSES
201 ASSOCIATED WITH RECTIFICATION,LOSS OF DATA, REPAIR OR DAMAGE CAUSED BY SUCH
202 ERRORS.
203
204
205 8.3 IronFlare SHALL NOT BE LIABLE TO THE LICENSEE OR TO ANY OTHER PARTY FOR ANY
206 LOSS OR DAMAGE WHATSOEVER OR HOWSOEVER CAUSED ARISING DIRECTLY OR INDIRECTLY
207 IN CONNECTION WITH THIS LICENSE, THE SOFTWARE, ITS USE OR OTHERWISE, EXCEPT TO
208 THE EXTENT THAT SUCH LIABILITY MAY NOT BE LAWFULLY EXCLUDED UNDER THE
209 APPLICABLE LAW.
210
211
212 8.4 NOTWITHSTANDING THE GENERALITY OF CLAUSE 8.3 ABOVE, IronFlare EXPRESSLY
213 EXCLUDES LIABILITY FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR
214 DAMAGE WHICH MAY ARISE IN RESPECT OF THE SOFTWARE HOWSOEVER CAUSED EVEN IF
215 ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
216
217
218 8.5 IN THE EVENT IronFlare INCURS ANY LIABILITY WHATSOEVER, SUCH LIABILITY IS
219 LIMITED TO THE LICENSE FEE PAID BY THE LICENSEE FOR THE SOFTWARE (EXCEPT FOR
220 DEATH OR PERSONAL INJURY ARISING FROM IronFlare'S NEGLIGENCE).
221
222
223 9. The Licensee's Liability
224
225
226
227 The Licensee agrees to indemnify IronFlare and hold IronFlare harmless against
228 and from any claim, proceeding, loss, liability, fine, cost and expense
229 (including court costs and reasonable fees for attorneys and other
230 professionals) incurred as a result of (i) the Licensee failing to fulfill the
231 Licensee's obligations or breaching the terms of this Agreement when using the
232 Software, (ii) any failure of the Licensee to pay for, or to have all
233 necessary rights, approvals and licenses required should the Software be
234 interfaced with third party software and/or hardware, and (iii) any use or
235 combination of the Software or any part thereof with any other programs or
236 materials if such use or combination infringes any intellectual property
237 rights of third parties.
238
239
240 10. Severability
241
242
243
244 In the event that any terms, conditions or provisions contained in this
245 Agreement or any part thereof are found to be invalid, unlawful or
246 unenforceable to any extent, the parties shall endeavour to agree such
247 amendments, which shall in as far as possible effect the intentions expressed
248 therein. In default of such agreement, such invalid term, condition or
249 provision shall be severed from the remaining terms, conditions and
250 provisions, which shall continue to be valid and enforceable to the fullest
251 extent permitted by law.
252
253
254 11. Assignment
255
256
257
258 Neither this Agreement nor any rights granted by virtue of it, or resulting
259 from it, may be assigned by the Licensee to others without IronFlare's prior
260 written consent.
261
262
263 12. Benchmarks
264
265
266
267 The Licensee may publish results of any benchmark or comparison tests run on
268 the Software, only if IronFlare is sent a copy of such results, as well as the
269 actual classfiles or any other files used, or information needed, to perform
270 the benchmarks or tests. Such results shall include information about the
271 hardware used to run the benchmarks or tests.
272
273
274 13. Confidential Information
275
276
277
278 13.1 The Licensee shall treat all proprietary and/or Confidential Information
279 as strictly confidential. The Licensee hereby agrees that all terms and
280 conditions of this Agreement shall be treated as confidential and shall not be
281 disclosed to others without IronFlare's prior written consent. This
282 confidentiality undertaking shall not apply to any part of the proprietary
283 and/or Confidential Information of which the Licensee can prove (i) was known
284 to it prior to being furnished to it hereunder (as evidenced by written record
285 predating such disclosure), (ii) was or became public knowledge through no
286 fault or breach of the terms of this Agreement by the Licensee, (iii) was
287 received by the Licensee from a third party in good faith and not in breach of
288 any agreement, or (iv) was independently acquired by the Licensee as a result
289 of work carried out by an employee of the Licensee to whom no disclosure of
290 this proprietary and/or Confidential Information was made.
291
292
293 13.2 The Licensee approves IronFlare, when marketing the Software, giving
294 public the fact that the Licensee is a user.
295
296
297 14. Force Majeure
298
299
300
301 Neither the Licensee nor IronFlare shall be liable for breach of any of the
302 provisions of this Agreement in case of force majeure. Force majeure shall
303 include, but shall not be limited to, inability to supply the Software,
304 material breakdown of its equipment, labour disputes of whatever nature or
305 cause, and any other circumstances reasonably beyond the control of the party
306 claiming that this provision shall apply.
307
308
309 15. Applicable law and arbitration
310
311
312
313 15.1 This Agreement shall be construed under and governed by the laws of
314 Sweden.
315
316
317 15.2 Any dispute concerning the interpretation and/or application of this
318 Agreement shall be settled by arbitration under the Rules of the Stockholm
319 Chamber of Commerce. Arbitration proceedings shall be held in Stockholm,
320 Sweden. The proceedings shall be conducted in the English language.
321
322
323 15.3 Notwithstanding the provision in clause 15.2, IronFlare may, in its sole
324 choice and discretion, institute proceedings concerning the recovery of any
325 fees and rates unpaid under this Agreement in any court having jurisdiction
326 over the Licensee and also in the District Court of Stockholm, the
327 jurisdiction of which the Licensee hereby expressly and irrevocably submits
328 to.

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