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Wed Nov 20 01:42:26 2002 UTC (15 years, 10 months ago) by nall
Branch: MAIN
CVS Tags: GENTOO_1_4_SNAP_2003010800
Branch point for: RELEASE-1_4
license for Ximian Connector

1 Terms of license:
2
3 THIS SOFTWARE LICENSE AGREEMENT ("THE AGREEMENT") IS A LEGAL AGREEMENT
4 BETWEEN XIMIAN, INC., , 401 PARK DRIVE, 3 WEST, BOSTON, MA 02215
5 ("XIMIAN") AND THE CUSTOMER OF THE SOFTWARE (THE "CUSTOMER"). BY
6 INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU REPRESENT (I)
7 THAT YOU HAVE BEEN AUTHORIZED TO ACCEPT THESE TERMS ON BEHALF OF THE
8 CUSTOMER (THE ENTITY ON WHOSE BEHALF YOU REPRESENT YOU ARE AUTHORIZED TO
9 ACT, IN WHICH EVENT "YOU" AND "YOUR" SHALL REFER TO YOU AND SUCH ENTITY,
10 AS THE CASE MAY BE), OR (II) THAT YOU INTEND TO BE PERSONALLY BOUND TO
11 THE TERMS OF THIS AGREEMENT AS THE CUSTOMER. IF YOU ARE NOT SO
12 AUTHORIZED OR DO NOT INTEND TO BE PERSONALLY BOUND, THEN LICENSOR IS
13 UNWILLING TO LICENSE THE SOFTWARE AND THE INSTALLATION OR USE OF THE
14 SOFTWARE IS A VIOLATION OF U.S. AND INTERNATIONAL COPYRIGHT LAWS AND
15 CONVENTIONS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY DELETE THE
16 UNUSED SOFTWARE WITHIN THIRTY DAYS AFTER YOU OBTAINED THE SOFTWARE AND
17 REQUEST A FULL REFUND OF THE LICENSE FEE. IF YOU ACCEPT THESE TERMS FOR
18 AN ENTITY ON WHOSE BEHALF YOU ARE AUTHORIZED TO ACT, YOU MAY USE THE
19 SOFTWARE ONLY ON BEHALF OF SUCH ENTITY. IF YOU INTEND TO BE PERSONALLY
20 BOUND, USE OF THE SOFTWARE IS LIMITED TO YOUR PERSONAL USE.
21
22 XIMIAN hereby agrees to grant and CUSTOMER agrees to accept a
23 non-exclusive license to use the Software subject to the following terms
24 and conditions:
25
26 1. Right to Use: The Software is provided in and is licensed for use in
27 object code form only and for use only by the number of user(s) and/or
28 on the number of computer(s) as described on the license file sent to
29 you upon purchase. CUSTOMER may make one copy of the Software for use as
30 archival or backup purposes (or that number of copies as permitted by
31 applicable law), but any and all copies must include XIMIAN's copyright
32 notice, and are fully subject to the terms of this Agreement. CUSTOMER
33 may not reverse engineer, disassemble, decompile, translate or otherwise
34 attempt to create the source code from the Software or create derivative
35 works of the Software or any portion thereof, including for reasons of
36 error correction or interoperability. During the warranty period stated
37 in Section 5 below, at CUSTOMER's request and at XIMIAN's election or as
38 may be required by applicable law, XIMIAN will make commercially
39 reasonable efforts to make available to CUSTOMER certain interface
40 specifications so that CUSTOMER may develop software interfaces to
41 provide interoperability with the Software. CUSTOMER may not (i) publish
42 or provide any results of benchmark tests run on the Software to a third
43 party without Licensee's prior written consent, (ii) disclose,
44 distribute or otherwise make available the Software to any other party
45 or permit others to use it, except employees and agents of CUSTOMER who
46 use it on CUSTOMER's behalf, if CUSTOMER is an entity, or (iii) remove
47 or alter any trademark, logo, copyright or other proprietary notices,
48 legends, symbols or labels in the Software. CUSTOMER may not rent,
49 lease, sublicense, grant a security interest in, or otherwise transfer
50 rights to the Software, but CUSTOMER may transfer the Software to a
51 third party on a permanent basis provided CUSTOMER retains no copies and
52 the recipient agrees to accept all of the terms and conditions of this
53 Agreement. Upon such permitted transfer, CUSTOMER must either transfer
54 all copies of the Software and all materials provided for or with it to
55 the recipient or destroy any copies not so transferred.
56
57 2. Duration: This license shall continue so long as CUSTOMER uses the
58 Software in compliance with the Agreement. Should the CUSTOMER breach
59 any of its obligations, this license shall terminate and CUSTOMER agrees
60 to destroy or return all copies of the Software and all materials
61 provided for or with the Software upon notification and demand by
62 XIMIAN.
63
64 3. Title: XIMIAN retains all proprietary rights and title to the
65 Software and any modifications, and no ownership of any part of the
66 Software is hereby transferred to CUSTOMER.
67
68 4. Security: CUSTOMER understands and agrees that the Software contains
69 trade secrets belonging to XIMIAN, and will take all reasonable steps to
70 protect its confidentiality. CUSTOMER acknowledges that the Software is
71 the property of XIMIAN and contains confidential information. CUSTOMER
72 agrees that, other than to its employees, it will not provide a copy of
73 the Software nor divulge any details of it to any person without the
74 prior consent in writing of XIMIAN.
75
76 5. Warranties: XIMIAN warrants solely that for a period of ninety (90)
77 days from shipment by XIMIAN of the Software, the medium upon which the
78 Software is delivered (if the Software is not downloaded by CUSTOMER)
79 will be free from defects in material and workmanship when given normal,
80 proper and intended usage, and that the Software will function
81 materially as described in the accompanying Software user documentation
82 ("Documentation"). This warranty does not apply insofar as: (a) the
83 Software is subjected to misuse, neglect, accident, or exposure to
84 environmental conditions beyond those specified in the Documentation;
85 (b) claims resulting from acts or omissions caused by persons other than
86 XIMIAN or from products, material or software not provided by XIMIAN;
87 (c) a version of the Software is used that does not include all updates
88 available from XIMIAN; (d) the Software is modified or; (e) the Software
89 is used on an operating system other than the system and version
90 specified in the Documentation or on a machine not described in the
91 Documentation.
92
93 In the event of a breach of warranty, XIMIAN's sole responsibility, and
94 CUSTOMER's sole and exclusive remedy, is, at XIMIAN's option, to repair
95 or replace all or any portions of the Software, or to refund the paid
96 license fee. This limited warranty is valid only if XIMIAN receives
97 written notice of breach of warranty within ten days of such ninety-day
98 period.
99
100 6. Limitation of Warranties and Liability: EXCEPT AS EXPRESSLY SET FORTH
101 IN SECTION 5 HEREIN, XIMIAN SHALL HAVE NO LIABILITY TO THE CUSTOMER OR
102 ANY THIRD PARTY FOR THE SOFTWARE, INCLUDING ANY LIABILITY FOR
103 NEGLIGENCE; XIMIAN MAKES AND THE CUSTOMER RECEIVES NO WARRANTIES,
104 EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT
105 OR ANY OTHER COMMUNICATION; AND XIMIAN SPECIFICALLY DISCLAIMS ANY
106 WARRANTY OF MERCHANTABILITY OR SATISFACTORY QUALITY, FITNESS FOR A
107 PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THE CUSTOMER MAY HAVE
108 CERTAIN STATUTORY RIGHTS TO WHICH THESE EXCLUSIONS DO NOT APPLY,
109 HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF
110 STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE
111 WARRANTY PERIOD SET FORTH IN SECTION 5 ABOVE. MOREOVER, IN NO EVENT WILL
112 WARRANTIES PROVIDED BY LAW, IF ANY, APPLY UNLESS THEY ARE REQUIRED TO
113 APPLY BY STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. NO DEALER,
114 AGENT, OR EMPLOYEE OF XIMIAN IS AUTHORIZED TO MAKE ANY MODIFICATIONS,
115 EXTENSIONS, OR ADDITIONS TO THIS LIMITED WARRANTY.
116
117 CUSTOMER is responsible for the selection of the Software to achieve its
118 intended results, and for the installation, use and results obtained
119 from the Software. XIMIAN does not warrant that use of the Software will
120 be uninterrupted or error free, nor that program errors will be
121 corrected.
122
123 The Software is not fault-tolerant and is not designed, manufactured or
124 intended for use or resale as on-line control equipment in hazardous
125 environments requiring fail-safe performance, such as in the operation
126 of nuclear facilities, aircraft navigation or communication systems, air
127 traffic control, direct life support machines, or weapons systems, in
128 which the failure of the Software could lead directly to death, personal
129 injury, or severe physical or environmental damage ("High Risk
130 Activities"). Accordingly, XIMIAN and its suppliers specifically
131 disclaim any express or implied warranty of fitness for High Risk
132 Activities.
133
134 The cumulative liability of XIMIAN to the CUSTOMER for all claims
135 relating to the Software, in contract, tort, or otherwise, shall not
136 exceed the total amount of all license fees paid to XIMIAN by the
137 CUSTOMER for the Software.
138
139 IN NO EVENT SHALL XIMIAN BE LIABLE TO THE CUSTOMER FOR ANY
140 CONSEQUENTIAL, INDIRECT, SPECIAL, MULTIPLE OR INCIDENTAL DAMAGES,
141 INCLUDING WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION AND
142 LOST DATA, EVEN IF XIMIAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
143 POTENTIAL LOSS OR DAMAGE.
144
145 SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION
146 OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. SO THE ABOVE EXCLUSIONS OR
147 LIMITATION MAY NOT APPLY TO YOU.
148
149 7. Taxes: CUSTOMER agrees to pay (and to reimburse XIMIAN on request if
150 XIMIAN is required to pay) any sales, use, value added (VAT),
151 consumption or other tax (excluding any tax on XIMIAN's net income) or
152 other fee or charge of any kind or nature that is levied or imposed by
153 any governmental authority on CUSTOMER's use or license of the Software.
154
155 8. Miscellaneous: This Agreement, the license granted hereunder, the
156 Software and any modifications thereto may not be assigned or in any way
157 transferred without the prior written consent of XIMIAN. The terms of
158 this Agreement shall be construed in accordance with the substantive
159 laws of the Commonwealth of Massachusetts, United States of America,
160 without giving effect to the principles of conflict or choice of law of
161 such Commonwealth. The original of this Agreement has been written in
162 English. The parties hereto waive any statute, law, or regulation that
163 might provide an alternative law or forum or to have this Agreement
164 written in any language other than English. XIMIAN and CUSTOMER exclude
165 the United Nations Convention on Contracts for the International Sale of
166 Goods and the Uniform Computer Information Transactions Act from this
167 Agreement. If any provision of this Agreement is held to be excessively
168 broad as to scope, activity, subject or otherwise so as to be
169 unenforceable at law, such provision shall be constructed by limiting or
170 reducing it so as to be enforceable to the maximum extent compatible
171 with the applicable law as it shall then appear. This Agreement
172 represents the entire understanding between the parties with respect to
173 its subject matter and supersedes all prior written and oral
174 communications. This Agreement may not be modified except by a written
175 agreement signed by authorized representatives of both parties. A waiver
176 by either party of its rights hereunder shall not be binding unless
177 contained in a written agreement signed by an authorized representative
178 of the party waiving its rights. The non-enforcement or waiver of any
179 provision on one occasion shall not constitute a waiver of such
180 provision on any other occasions unless expressly so agreed in writing.
181
182 9. U.S. Government Restricted Rights: The Software and Documentation are
183 "commercial items" as that term is defined in 48 C.F.R. 2.101 (October
184 1995) consisting of "commercial computer software" and "commercial
185 computer software documentation" as such terms are used in 48 C.F.R.
186 227.7202-1, 227.7202-3 and 227.7202-4 (June 1995). If the CUSTOMER
187 hereunder is the U.S. Government or any agency or department thereof,
188 the Software and Documentation are licensed hereunder (i) only as a
189 commercial item, and (ii) with only those rights as are granted to all
190 other end users pursuant to the terms and conditions of this Agreement.
191
192 10. Export Control: None of the Software or underlying information or
193 technology may be downloaded or otherwise exported or reexported (i)
194 into (or to a national or resident of) Cuba, Iraq, Libya, Sudan, North
195 Korea, Iran, Syria or any other country to which the U.S. has embargoed
196 goods; or (ii) to anyone on the U. S. Treasury Department's list of
197 Specially Designated Nationals or the U.S. Commerce Department's Table
198 of Denial Orders. By downloading or using the Software, CUSTOMER agrees
199 to the foregoing and represents and warrants that it is not located in,
200 under the control of, or a national or resident of any such country or
201 on any such list. In addition, CUSTOMER agrees to comply with all
202 relevant export laws and regulations of the United States and any local
203 laws in its jurisdiction that may impact its right to import, export or
204 use the Software, and represents that it has complied with any
205 regulations or registration procedures required by applicable law to
206 make this license enforceable.
207
208 11. Arbitration: CUSTOMER agrees that all disputes arising out of or
209 relating to this Agreement shall be finally settled by arbitration
210 conducted in Boston, Massachusetts, United States of America, under the
211 rules of commercial arbitration of the American Arbitration Association.
212 Both parties shall bear equally the cost of arbitration (exclusive of
213 legal fees and expenses, all of which each party shall bear separately).
214 All decisions of the arbitrator(s) shall be final and binding on both
215 parties and enforceable in any court of competent jurisdiction.
216 Notwithstanding the foregoing, in the event of breach by CUSTOMER of its
217 obligations hereunder, XIMIAN may seek injunctive or other equitable
218 relief in any court of competent jurisdiction.

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