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Software License Agreements

Database Development Products Software License Agreement

This covers the following product licensed directly by Embarcadero Technologies, Inc. and Embarcadero Technologies Europe Ltd. to Customer: ER/Studio, DB Optimizer, DBArtisan, DB Change Manager, DB PowerStudio and Rapid SQL.


Software License and Support Agreement - United States and Canada

Software License and Support Agreement - Non-US

Master Software License Agreement


 

Software License and Support Agreement - United States and Canada

BY PROCEEDING TO DOWNLOAD, INSTALL OR USE THE PRODUCTS IN WHICH THIS AGREEMENT IS ELECTRONICALLY EMBEDDED OR BY PURCHASING A LICENSE OR OBTAINING A LICENSE KEY FOR THE PRODUCTS, YOU HEREBY ACKNOWLEDGE AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, THEN DO NOT CLICK “ACCEPT,” DO NOT INSTALL OR USE THE PRODUCTS AND DELETE THE PRODUCTS FROM YOUR COMPUTER SYSTEM. BY INSTALLING OR USING THE PRODUCTS OR BY CLICKING ON “ACCEPT” YOU ACKNOWLEDGE AND AGREE THAT ON BEHALF OF YOURSELF AND YOUR EMPLOYER YOU HAVE READ THIS SOFTWARE LICENSE AND SUPPORT AGREEMENT CAREFULLY, THAT YOU AND YOUR EMPLOYER AGREE TO BE BOUND BY THIS AGREEMENT AND THAT IF APPLICABLE YOUR EMPLOYER HAS INFORMED YOU OF THE RELEVANT PROVISIONS OF THIS AGREEMENT WHICH MAY BE APPLICABLE TO YOU. THIS AGREEMENT, SHALL GOVERN YOUR INSTALLATION AND USE OF THE PRODUCTS UPON THE EARLIER OF YOUR AGREEMENT TO PURCHASE A LICENSE FOR SUCH PRODUCTS OR YOUR INSTALLATION OR USE OF THE PRODUCTS. EMBARCADERO URGES YOU TO CAREFULLY READ THIS AGREEMENT AND ASSESS YOUR USE OF THE PRODUCTS PRIOR TO INSTALLING OR USING THE PRODUCTS OR MAKING ANY DECISION TO PURCHASE A LICENSE OR SUPPORT.

1. SCOPE. This Software License and Support Agreement (this “Agreement”) is made and entered into as of the date of the earlier of Licensee’s (as defined below) purchase of a license to use a Product (as defined below) or Licensee’s installation and use of a Product (such date, the “Effective Date”) and establishes the terms and conditions to which Embarcadero Technologies, Inc., a Delaware corporation with offices at 10801 N Mopac Expressway, Building 1, Suite 100, Austin, Texas 78759 (“Licensor”) and Licensee have agreed for the licensing of Licensor’s software products and accompanying documentation (“Products”) and Support (as defined below). For purposes of this Agreement the term “Licensee” means the person or entity, as applicable, designated on the purchase order, price quote or online order form (each, a “Purchase Order”) pursuant to which the Support and/or licenses for the Product were purchased. In the event of a conflict between the terms of this Agreement and any Purchase Order, the terms of this Agreement will govern and control unless Licensor expressly agrees in writing otherwise. Delivery if made by any means other than electronic delivery, shall be made FCA (Incoterms 2010) Licensor’s shipping point. All deliveries of Product shall be deemed accepted upon delivery. If Licensee is evaluating Licensor software, only the provisions of Section 22 below will govern such evaluation.

2. LICENSE GRANT. Licensor grants to Licensee a non-exclusive, non-transferable, 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 Single Seat License (also called a Workstation License), Licensee may install the Product on one computer for use by one end user within the Licensed Country.

(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).

(c) If Licensee has purchased a Network Named User or Named User License, Licensee may install the Product on one or more computers and designate one person in Licensee’s organization ("Named User") the right to use the Product within the Licensed Country, provided that only the Named User uses the Product.

(d) If Licensee has purchased a CPU License, Licensee may use the Product on any number of computers within the Licensed Country, provided that at no time may the Product be used to monitor more than the authorized number of CPUs for which Licensee has purchased a license.

(e) If Licensee has purchased a Bronze, Silver, Gold or Platinum edition license for DBArtisan Team Server it is a capacity based license. Under this license Licensee may use the Product to monitor and manage databases provided that the total cumulative amount of data that is monitored and managed at any one point in time does not exceed the total data capacity licensed under the applicable edition license.

(f) If Licensee has purchased a license for ER/Studio Team Server or ER/Studio Portal it is an exclusive connection license. Under this exclusive connection license, Licensee may install the Product on client computers up to the total number of licenses purchased to connect to a single server. Licenses may be reapportioned to different users up to the total number of license purchased.

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 not to exceed thirty (30) days while a user is traveling, is permitted. Licensee usage of the Product may be restricted to DBMS platforms please look to the Purchase Order for the specific platforms licensed. Licensee may not mix and match ER/Studio Team Edition licenses with ER/Studio Enterprise licenses or other ER/Studio editions which can connect to the repository. Licensee shall not connect non-Team Edition products, such as ER/Studio Enterprise, to the Team Edition repository. If Licensee has purchased a license for ER/Studio Team Edition, Licensee must upgrade all licenses with repository connectivity to ER/Studio Team Edition. Certain editions of the Product may include ToolCloud and/or InstantOn features. Additional restrictions applicable to those features may be found in supplemental terms accompanying them.

3. TERM. This Agreement shall be effective on the Effective Date and shall continue for the term(s) set forth in this Agreement or in the Purchase Order, unless earlier terminated in accordance with the terms hereof.

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 license 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 sixty (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(s), 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. All rights not specifically granted to licensee herein are retained by Licensor.

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, MAINTENANCE AND ENHANCEMENTS (“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: user forums, Product-specific information, hints and tips; bug fix retrieval via the Internet or World Wide Web access; Product maintenance and demonstration code retrieval via a WAN-accessible FTP server; and access to a problem resolution database via the Licensor customer support system.

6.2 SUPPORT. Support shall be applicable only to the Product licensed or sold under this Agreement for which Support fees have been paid. In the United States, Support is provided from 8:00 AM through 6:00 PM (Central Standard Time) Monday through Friday, excluding United States public and bank holidays. Support shall consist of:

(a) Supplying telephone or other electronic support to Licensee in order to help (i) Licensee locate and, on its own, correct problems with the Products and (ii) provide product licensing assistance. Upon mutual agreement by both parties, Licensor shall: (i) supply code corrections to Licensee to correct Product malfunctions in order to bring the Product into substantial conformity with the published operating specifications for the most current version of the Product unless Licensee’s unauthorized modifications prohibit or hamper such corrections or cause the malfunction; or (ii) supply code corrections to correct insubstantial problems at the next general release of the Product; and

(b) Supplying all extensions, enhancements and other changes that Licensor, at its sole discretion, makes or adds to the Product and which Licensor furnishes, without charge, to other licensees generally of the Product that are enrolled in Support.

6.3 TERMINATION OF SUPPORT. 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 has failed to renew or terminated its enrollment in Support, for a period of up to three years from the Support expiration date, Licensee may re-enroll in Support by paying a reinstatement fee to be calculated based on Licensor’s then current reinstatement policy and due for the period during which Licensee was not enrolled in Support. 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. For the avoidance of doubt, Support reinstatement will not be permitted after three years of lapsed Support. 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. Licensor may elect to cease offering support services at any time (i) for a particular Product version in the case where it has been replaced by newer release(s) and (ii) in the case where a particular Product has reached its end of life.

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 upon thirty (30) days written notice to Licensee. 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, such modification will be deemed part of the Product, and subject to the License and the terms of this Agreement, unless the modification is expressly provided subject to a separate license agreement. If Licensee have acquired an upgrade version of the Product, 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.

7. PAYMENT SCHEDULE. Payment for all License and Support fees shall be due thirty (30) following the date of an invoice issued by Licensor specifying the amounts due, unless otherwise set forth in an ordering document accepted by Licensor in writing. Unless otherwise expressly set forth herein, all fees are non-refundable. 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. Annual Support fees are payable in advance and are non-refundable.

8. LIMITED WARRANTY AND CONDITIONS. Licensor represents and warrants to Licensee that for a period of sixty (60) days from the date of the delivery of the Product (i) the media on which the Product is furnished will be, under normal use, free from defects in material and workmanship; and (ii) the Product will perform in all material respects with the operating specifications contained in the accompanying Product documentation, which is current at the effective date of this Agreement. 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) the 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. Licensor shall have no obligations under this Section unless (i) Licensee notifies Licensor in writing within ten (10) days after Licensee first receives notice of any such claim, action or allegation of infringement and (ii) Licensor is given 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 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.

Licensor shall have no obligation under this Section to the extent the alleged infringement results from (i) modification of the Product other than by Licensor; (ii) the combination of the Product with products not provided by Licensor; or (iii) use of any older version of the Product when use of a newer version made available to Licensee would have avoided the infringement. This Section 10 is Licensor’s entire liability and Licensee’s sole and exclusive remedy in the event of intellectual property infringement of any kind.

11. VERIFICATION. 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(s) is / are 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 five percent (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., located at 10801 N Mopac Expressway, Building 1, Suite 100, Austin, Texas 78759. 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 (i) 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), (ii) 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 or (iii) 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 or by express overnight courier.

16. REFERENCING. 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, 9, 11 through 21 shall survive in accordance with their respective terms.

20. ENTIRE AGREEMENT: Licensee acknowledges that this Agreement has been read and 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. This Agreement shall not be modified or rescinded except in writing signed by the parties. The terms and conditions of any present of future documents submitted by Licensee which conflicts with, or in any way purports to amend this Agreement, or which includes any terms or conditions that are in addition to those contained herein or in the Purchase Order, are specifically objected to by Licensor (unless expressly agreed to by Licensor in a written instrument signed by the parties hereto), and shall be of no force or effect.

21. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of State of Texas without regard to conflicts of law principles. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply. Licensor and Licensee hereby irrevocably agree on behalf of themselves that the sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement or the subject matter hereof shall be in an appropriate federal or state court in the State of Texas located in Travis county. 

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 non-transferable, 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 Licensor in original condition or certify to Licensor in writing that such Software has been uninstalled and destroyed. 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.

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. Licensor does not warrant that the Products will operate without interruption or be error free. Sections 5, 9, 11-15, and 17- 21 of the Agreement shall be deemed incorporated by this reference in the Evaluation license granted under this Section 22.

[END OF AGREEMENT]


 

Software License and Support Agreement - Non-US

BY PROCEEDING TO DOWNLOAD, INSTALL OR USE THE PRODUCTS IN WHICH THIS AGREEMENT IS ELECTRONICALLY EMBEDDED OR BY PURCHASING A LICENSE OR OBTAINING A LICENSE KEY FOR THE PRODUCTS, YOU HEREBY ACKNOWLEDGE AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, THEN DO NOT CLICK “ACCEPT,” DO NOT INSTALL OR USE THE PRODUCTS AND DELETE THE PRODUCTS FROM YOUR COMPUTER SYSTEM. BY INSTALLING OR USING THE PRODUCTS OR BY CLICKING ON “ACCEPT” YOU ACKNOWLEDGE AND AGREE THAT ON BEHALF OF YOURSELF AND YOUR EMPLOYER YOU HAVE READ THIS SOFTWARE LICENSE AND SUPPORT AGREEMENT CAREFULLY, THAT YOU AND YOUR EMPLOYER AGREE TO BE BOUND BY THIS AGREEMENT AND THAT IF APPLICABLE YOUR EMPLOYER HAS INFORMED YOU OF THE RELEVANT PROVISIONS OF THIS AGREEMENT WHICH MAY BE APPLICABLE TO YOU. THIS AGREEMENT, SHALL GOVERN YOUR INSTALLATION AND USE OF THE PRODUCTS UPON THE EARLIER OF YOUR AGREEMENT TO PURCHASE A LICENSE FOR SUCH PRODUCTS OR YOUR INSTALLATION OR USE OF THE PRODUCTS. EMBARCADERO URGES YOU TO CAREFULLY READ THIS AGREEMENT AND ASSESS YOUR USE OF THE PRODUCTS PRIOR TO INSTALLING OR USING THE PRODUCTS OR MAKING ANY DECISION TO PURCHASE A LICENSE OR SUPPORT.

1. SCOPE. This Software License and Support Agreement (this “Agreement”) is made and entered into as of the date of the earlier of Licensee’s (as defined below) purchase of a license to use a Product (as defined below) or Licensee’s installation and use of a Product (such date, the “Effective Date”) and establishes the terms and conditions to which Embarcadero Technologies Europe Limited, a company registered in England with reference number 3228491 with offices at 18 York Road, Maidenhead, Berkshire, SL6 1SF (“Licensor”) and Licensee have agreed for the licensing of Licensor’s software products and accompanying documentation (“Products”) and Support (as defined below). For purposes of this Agreement the term “Licensee” means the person or entity, as applicable, designated on the purchase order, price quote or online order form (each, a “Purchase Order”) pursuant to which the Support and/or licenses for the Product were purchased. In the event of a conflict between the terms of this Agreement and any Purchase Order, the terms of this Agreement will govern and control unless Licensor expressly agrees in writing otherwise. Delivery if made by any means other than electronic delivery, shall be made FCA (Incoterms 2010) Licensor’s shipping point. All deliveries of Product shall be deemed accepted upon delivery. If Licensee is evaluating Licensor software, only the provisions of Section 22 below will govern such evaluation.

2. LICENSE GRANT. Licensor grants to Licensee a non-exclusive, non-transferable, 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 Single Seat License (also called a Workstation License), Licensee may install the Product on one computer for use by one end user within the Licensed Country.

(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).

(c) If Licensee has purchased a Network Named User or Named User License, Licensee may install the Product on one or more computers and designate one person in Licensee’s organization ("Named User") the right to use the Product within the Licensed Country, provided that only the Named User uses the Product.

(d) If Licensee has purchased a CPU License, Licensee may use the Product on any number of computers within the Licensed Country, provided that at no time may the Product be used to monitor more than the authorized number of CPUs for which Licensee has purchased a license.  

(e) If Licensee has purchased a Bronze, Silver, Gold or Platinum edition license for DBArtisan Team Server it is a capacity based license. Under this license Licensee may use the Product to monitor and manage databases provided that the total cumulative amount of data that is monitored and managed at any one point in time does not exceed the total data capacity licensed under the applicable edition license.

(f) If Licensee has purchased a license for ER/Studio Team Server or ER/Studio Portal it is an exclusive connection license. Under this exclusive connection license, Licensee may install the Product on client computers up to the total number of licenses purchased to connect to a single server. Licenses may be reapportioned to different users up to the total number of license purchased.

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 not to exceed thirty (30) days while a user is traveling, is permitted. Licensee usage of the Product may be restricted to DBMS platforms please look to the Purchase Order for the specific platforms licensed. Licensee may not mix and match ER/Studio Team Edition licenses with ER/Studio Enterprise licenses or other ER/Studio editions which can connect to the repository. Licensee shall not connect non-Team Edition products, such as ER/Studio Enterprise, to the Team Edition repository. If Licensee has purchased a license for ER/Studio Team Edition, Licensee must upgrade all licenses with repository connectivity to ER/Studio Team Edition. Certain editions of the Product may include ToolCloud and/or InstantOn features. Additional restrictions applicable to those features may be found in supplemental terms accompanying them.

3. TERM. This Agreement shall be effective on the Effective Date and shall continue for the term(s) set forth in this Agreement or in the Purchase Order, unless earlier terminated in accordance with the terms hereof.

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 license 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 sixty (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(s), 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. All rights not specifically granted to licensee herein are retained by Licensor.

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, MAINTENANCE AND ENHANCEMENTS (“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: user forums, Product-specific information, hints and tips; bug fix retrieval via the Internet or World Wide Web access; Product maintenance and demonstration code retrieval via a WAN-accessible FTP server; and access to a problem resolution database via the Licensor customer support system.

6.2 SUPPORT. Support shall be applicable only to the Product licensed or sold under this Agreement for which Support fees have been paid. In the United Kingdom, Support is provided from 9:00 AM through 5:30 PM GMT (British Winter) and GMT +1 (British Summer) Monday through Friday, excluding United Kingdom public and bank holidays. Support shall consist of:

(a) Supplying telephone or other electronic support to Licensee in order to help (i) Licensee locate and, on its own, correct problems with the Products and (ii) provide product licensing assistance. Upon mutual agreement by both parties, Licensor shall: (i) supply code corrections to Licensee to correct Product malfunctions in order to bring the Product into substantial conformity with the published operating specifications for the most current version of the Product unless Licensee’s unauthorized modifications prohibit or hamper such corrections or cause the malfunction; or (ii) supply code corrections to correct insubstantial problems at the next general release of the Product; and

(b) Supplying all extensions, enhancements and other changes that Licensor, at its sole discretion, makes or adds to the Product and which Licensor furnishes, without charge, to other licensees generally of the Product that are enrolled in Support.

6.3 TERMINATION OF SUPPORT. 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 has failed to renew or terminated its enrollment in Support, for a period of up to three years from the Support expiration date, Licensee may re-enroll in Support by paying a reinstatement fee to be calculated based on Licensor’s then current reinstatement policy and due for the period during which Licensee was not enrolled in Support. 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. For the avoidance of doubt, Support reinstatement will not be permitted after three years of lapsed Support. 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. Licensor may elect to cease offering support services at any time (i) for a particular Product version in the case where it has been replaced by newer release(s) and (ii) in the case where a particular Product has reached its end of life.

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 upon thirty (30) days written notice to Licensee. 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, such modification will be deemed part of the Product, and subject to the License and the terms of this Agreement, unless the modification is expressly provided subject to a separate license agreement. If Licensee have acquired an upgrade version of the Product, 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.

7. PAYMENT SCHEDULE. Payment for all License and Support fees shall be due thirty (30) following the date of an invoice issued by Licensor specifying the amounts due, unless otherwise set forth in an ordering document accepted by Licensor in writing. Unless otherwise expressly set forth herein, all fees are non-refundable. 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. Annual Support fees are payable in advance and are non-refundable.

8. LIMITED WARRANTY AND CONDITIONS. Licensor represents and warrants to Licensee that for a period of sixty (60) days from the date of the delivery of the Product (i) the media on which the Product is furnished will be, under normal use, free from defects in material and workmanship; and (ii) the Product will perform in all material respects with the operating specifications contained in the accompanying Product documentation, which is current at the effective date of this Agreement. 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) the 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. Licensor shall have no obligations under this Section unless (i) Licensee notifies Licensor in writing within ten (10) days after Licensee first receives notice of any such claim, action or allegation of infringement and (ii) Licensor is given sole control of the defence 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 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.

Licensor shall have no obligation under this Section to the extent the alleged infringement results from (i) modification of the Product other than by Licensor; (ii) the combination of the Product with products not provided by Licensor; or (iii) use of any older version of the Product when use of a newer version made available to Licensee would have avoided the infringement. This Section 10 is Licensor’s entire liability and Licensee’s sole and exclusive remedy in the event of intellectual property infringement of any kind.

11. VERIFICATION. 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(s) is / are 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 five percent (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., located at 10801 N Mopac Expressway, Building 1, Suite 100, Austin, Texas 78759. 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 (i) 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), (ii) 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 or (iii) 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 or by express overnight courier.

16. REFERENCING. 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 labour 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, 9, 11 through 21 shall survive in accordance with their respective terms.

20. ENTIRE AGREEMENT: Licensee acknowledges that this Agreement has been read and 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. This Agreement shall not be modified or rescinded except in writing signed by the parties. The terms and conditions of any present of future documents submitted by Licensee which conflicts with, or in any way purports to amend this Agreement, or which includes any terms or conditions that are in addition to those contained herein or in the Purchase Order, are specifically objected to by Licensor (unless expressly agreed to by Licensor in a written instrument signed by the parties hereto), and shall be of no force or effect.

21. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of England and Wales 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 non-transferable, 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 Licensor in original condition or certify to Licensor in writing that such Software has been uninstalled and destroyed. 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.

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. Licensor does not warrant that the Products will operate without interruption or be error free. Sections 5, 9, 11-15, and 17- 21 of the Agreement shall be deemed incorporated by this reference in the Evaluation license granted under this Section 22.

[END OF AGREEMENT]


 

MASTER SOFTWARE LICENSE AGREEMENT

Idera, Inc.

2950 North Loop Freeway West

Suite 700

Houston, Texas 77092

Phone: (713) 862-5250; Fax: (713) 862-5210

 

THIS MASTER SOFTWARE LICENSE AGREEMENT, dated as of ______, 2018, between Idera, Inc., a Texas corporation (“Idera”), and ______________, a __________ (“Customer”), sets forth the terms and conditions whereby Idera agrees to provide to Customer and Customer agrees to acquire from Idera one or more licenses to use certain software and documentation and maintenance services related thereto, owned or licensed by Idera or a subsidiary of Idera. Each individual license under this Agreement will be defined in a Purchase Order. Each Purchase Order shall be executed separately and, when so executed by both parties and delivered to Idera, shall constitute and be construed as a separate agreement consisting of the terms and conditions contained in such Purchase Order together with the terms of this Agreement.  To the extent any terms or conditions contained in a Purchase Order conflict with the terms or conditions contained in this Agreement, the terms and conditions of such Purchase Order shall supersede only those conflicting terms or conditions contained in this Agreement and only to the minimum extent necessary to harmonize the terms in such Purchase Order with the terms contained herein. This Agreement specifically supersedes and replaces the terms and conditions of all prior agreements between Idera and Customer relating to the software licensed hereunder, including, but not limited to, any shrink-wrap agreements, click-wrap agreements or any demo or trial agreements which may accompany or are embedded in Idera’s products or which have been previously in force between the parties. All Exhibits, Schedules, Annexes, Purchase Orders referred to herein are hereby incorporated into this Agreement by this reference and made a part hereof. If Customer is evaluating Evaluation Software (as defined in Section 16 below), then only the terms and conditions of Section 16 below (including those Sections of this Agreement incorporated therein by reference) will govern Customer’s temporary use of such Evaluation Software (and no other terms of this Agreement shall apply to Customer or govern Customer’s use of Evaluation Software) and upon purchase of a commercial license for such Evaluation Software, this entire Agreement, exclusive of Section 16, shall apply to Customer and govern all use of the Licensed Material (as defined below).  In consideration of the mutual promises and agreements contained herein, the parties hereto also agree as follows:

 

GENERAL TERMS AND CONDITIONS


  1. DEFINITIONS

    1. “Agreement” means this master software license agreement, together with all exhibits, schedules, annexes and Purchase Orders made a part hereof in accordance with the terms of this Agreement and all amendments, modifications, supplements and alterations thereto effected in accordance with the terms of this Agreement.

       

    2. “Americas Territory” means those geographical areas found within the boundaries of North America and South America (but excluding Cuba).

       

    3. “Asia Pacific Territory” or “AsiaPac Territory” means those geographical areas found within the boundaries of Asia and Australia/Pacific (but excluding North Korea).

       

    4. "CLU" means (i) with respect to non-virtual environments, one (1) physical CPU Unit as calculated pursuant to Section 2(c) below; and (ii) with respect to virtual environments, up to four (4) virtual CPUs allocated to a virtual machine as calculated pursuant to Section 2(c) below.

       

    5. “Confidential Information” means all technical and non-technical information in both tangible and intangible form, including, but not limited to, product design information, software code, technical information, customer information, discounting, cost and pricing information, financial information and the results derived from or methodology employed by Customer in conducting any benchmark testing of the Licensed Software; provided that the term “Confidential Information” shall not include information which the recipient can show by reasonable proof (i) to have been known by the recipient prior to the time of disclosure by the disclosing party, (ii) to have become part of the public domain through no fault or breach of this Agreement by the recipient, (iii) to have been disclosed to the recipient in good faith by a third party who is not under any obligation of confidence or secrecy to the disclosing party at the time such third party discloses the information to the recipient or (iv) to have been compelled to be produced by a court of competent jurisdiction, provided that the recipient shall first give notice to the disclosing party of any such request or order of the court to give the disclosing party an opportunity to contest or limit said request or order of the court.

       

    6. "CPU" means the logic circuitry that responds to and processes the instructions that run a computer and/or that access or runs the Licensed Software and each CPU may be comprised of multiple processing cores, each of which may be configured to independently act as an individual CPU and shall, when so configured, be deemed a separate CPU under this definition for purposes of this Agreement.

       

    7. “Error” means any error, defect or omission that (i) is discovered in the Licensed Software, (ii) is reproducible and (iii) prevents its operation substantially in accordance with the Licensed Documentation.

       

    8. “Europe, Middle East and Africa Territory” or “EMEA Territory” means 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).

       

    9. “Licensed Country” means, with respect to any Single Seat License, Workstation License, Concurrent Users License, Network Named User License, Named User License or CPU License, the country designated in the applicable Purchase Order or, in the absence of such designation, the country listed in such Purchase Order as the “ship to” address; provided that in the case of a country within the European Union, the “Licensed Country” shall be the European Union.

       

    10. “Licensed Documentation” means the published user manuals that Idera makes gener­ally available for the Licensed Software.

       

    11. “Licensed Material” means the Licensed Software and the Licensed Documentation.

       

    12. “Licensed Software” means the machine-readable object code ver­sion of (i) the software specified on each Purchase Order, whether embed­ded on disc, tape, internet download site or other media and (ii) all Updates for the Licensed Software that Customer is entitled to receive in connection with its receipt of Maintenance Services pursuant to Section 4 of this Agreement.

       

    13. “Maintenance Services” means the technical support services provided by Idera pursuant to Section 4 hereof.

       

    14. “Maintenance Term” means the period of time for which Customer has purchased Maintenance Services, as evidenced by the Purchase Order delivered by Customer in connection therewith, together with all renewals effected in accordance with Section 4 of this Agreement.

       

    15. “Monitored Element” or “Monitored Device” means a physical server, virtual server, network device or any system or device with an IP address.

       

    16. “Purchase Order” means (i) Idera’s standard price quote, purchase order, order form or purchase confirmation, as such document may be amended, supplemented or modified from time to time in accordance with this Agreement or (ii) any other non-Idera price quote, purchase order, order form or purchase confirmation delivered by Customer to Idera but solely to the extent permitted by and delivered in accordance with Section 15.

       

    17. “Territory” means, with respect to a Concurrent User License, the geographical area in which the Licensed Software may be accessed and used, which geographical area may be any one, and only one, of the following three geographic areas: Americas Territory, the EMEA Territory or the AsiaPac Territory, as specified pursuant to Section 2(a) below.

       

    18. “Update” means any revision, enhancement, improvement or modification to or programming fix for the Licensed Software or Licensed Documentation which Idera makes generally available, incorporates into and makes a part of the Licensed Software or Licensed Documentation and does not separately price or market.

  2. LICENSE

    1. Use – Subject to the terms and conditions of this Agreement, including, but not limited to the applicable licensing restrictions set forth in Section 2(b) below, and subject further to Customer’s full compliance herewith and according to the scope, time period and other terms indicated on the applicable Purchase Order delivered in connection with this Agreement, Idera hereby grants Customer and Customer hereby accepts from Idera, a perpetual, non-exclusive and non-transferable right and license to install the Licensed Software on computer hardware that is owned or operated by or on behalf of Customer, to access and use the Licensed Material in accordance with the applicable restrictions and conditions contained in this Agreement and to copy the Licensed Material as permitted by this Agreement.Customer’s right to use the Licensed Material shall extend to use by third parties under a written agreement with Customer to provide outsourcing services for Customer's own internal business operations; provided, that (i) such third parties have agreed to abide by the terms of this Agreement and (ii) Customer shall remain primarily liable for all acts and omissions by such third parties.

       

    2. License Usage and Restrictions – Customer acknowledges and agrees that, as between Customer and Idera, Idera or its subsidiaries owns and shall continue to own all right, title, and interest in and to the License Material, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. This Agreement does not grant Customer any ownership interest in or to the Licensed Material, but only a limited right and license to use the Licensed Materials in accordance with the terms of this Agreement and each applicable Purchase Order. Customer further acknowledges and agrees that the licenses granted hereunder and the restrictions applicable to Customer’s installation and use of the License Software will vary according to the type of Licensed Software purchased by Customer and the type of license purchased by Customer. One or more of the restrictions set forth in this Section 2 may apply to the Licensed Software depending upon the type of licensed purchased and the terms contained in the applicable Purchase Order relating to the Licensed Software.Customer is encouraged to carefully review all terms and restrictions contained in this Section 2 and each Purchase Order.Customer hereby agrees to the following license restrictions and conditions applicable to the Licensed Software as set forth in the Purchase Orders delivered by Customer under this Agreement:

      1. For all Licensed Software made generally available by Idera on a “per-instance” basis and licensed hereunder by Customer on a “per-instance” basis, Customer may install, operate and use such Licensed Software on one (1) instance per license purchased by Customer;
         
      2. For all Licensed Software made generally available by Idera on a “per-server” basis and licensed hereunder by Customer on a “per-server” basis, Customer may install, operate and use such Licensed Software on one (1) physical or one (1) virtual server per license purchased by Customer;
         
      3. For all Licensed Software made generally available by Idera on a “per-user” or “per-seat” basis and licensed hereunder by Customer on a “per-user” or “per-seat” basis, Customer may install and operate such Licensed Software on any number of physical servers or virtual servers or install and use any number of instances of the Licensed Software but Customer shall not access and use such Licensed Software by more than one (1) user per license purchased by Customer;
         
      4. For all Licensed Software made generally available by Idera on a “per-Monitored Element” or “per-Monitored Device” basis and licensed hereunder by Customer on a “per-Monitored Element” or “per-Monitored Device” basis, Customer may install, operate and use such Licensed Software to monitor one (1) Monitored Element or Monitored Device per license purchased by Customer;

      5. For all Licensed Software expressly specified in a Purchase Order as a “Site-License,” Customer may install, operate and use the Licensed Software on any number of instances, CPUs, seats, workstations, physical servers or virtual servers physically located at the building or computing facilities specified in the Purchase Order by address as the site and may do so with any number of users or seats;

      6. For all Licensed Software expressly specified in a Purchase Order as an “Enterprise-License,” Customer may install, operate and use the Licensed Software on any number of instances, CPUs, physical servers or virtual servers and may do so with any number of users or seats; provided, that periodically upon Idera’s written request Customer shall provide Idera with a written report evidencing actual installation and usage of the License Software and pay for all excess license usage in accordance with the terms of Idera’s standard true-up addendum (the terms of which are incorporated herein by reference upon Customer purchasing such enterprise license);

      7. For all Licensed Software made generally available by Idera on a “per-CLU” basis and licensed hereunder by Customer on a “per-CLU” basis (each, a “CLU License”), Customer may install, operate and use such Licensed Software on one (1) CLU per license purchased by Customer and the additional terms and conditions set forth in Section 2(c) below shall apply;
         
      8. For all Licensed Software made generally available by Idera on a “single seat” or “workstation” basis and licensed hereunder by Customer on a “single seat” or “workstation” basis (a “Single Seat License” or “Workstation License”), Customer may install and operate such Licensed Software on one (1) computer for use by one (1) end user within the Licensed Country ;

      9. For all Licensed Software made generally available by Idera on a “concurrent users” basis (each, a “Concurrent License”) and licensed hereunder by Customer as a Concurrent License, Customer may install and operate such Licensed Software on a network within the Licensed Country to be used concurrently on different computers by up to the authorized number of users for which Customer has purchased a license, provided that the Licensed Software is accessed and used only in the Territory;

      10. For all Licensed Software made generally available by Idera on a “network named user” or “named user” basis and licensed hereunder by Customer on a “network named user” or “named user” basis (a “Network Named User License” or “Named User License”), Customer may install and operate such Licensed Software on one or more computers and designate one (1) person in Customer’s organization (the "Named User") who shall have the right to use the Licensed Software within the Licensed Country, provided that only the Named User uses the Licensed Software ;

      11. For all Licensed Software made generally available by Idera on a “CPU” basis and licensed hereunder by Customer on a “CPU” basis (a “CPU License”), Customer may install and operate such Licensed Software on any number of computers within the Licensed Country, provided that at no time may the Licensed Software be used to monitor more than the authorized number of CPUs for which Customer has purchased a license;

      12. If Customer has purchased a license for ER/Studio Team Server or ER/Studio Portal, such license is an exclusive connection license and may only be installed on Customer’s computers up to the total number of licenses purchased to connect to a single server; provided, that such licenses may be reapportioned to different users up to the total number of license purchased;

      13. Customer may not mix and match or use ER/Studio Team Edition licenses with ER/Studio Enterprise licenses or other ER/Studio editions which can connect to the repository applicable to ER/Studio; and

      14. Customer shall not connect non-Team Edition of ER/Studio, such as ER/Studio Enterprise, to the Team Edition repository applicable to ER/Studio and if Customer has purchased a license for ER/Studio Team Edition, Customer must upgrade all existing ER/Studio licenses having repository connectivity to ER/Studio Team Edition.

      For any Licensed Software that is restricted by a Licensed Country or Territory, temporary usage of such Licensed Software by a user outside the Licensed Country or Territory is permitted while such user is traveling provided that all such usage does not exceed thirty (30) days in any twelve-month period.  In no event shall Customer install, operate, use or access the Licensed Software in contravention of the foregoing restrictions applicable to the Licensed Software or any other restrictions contained in this Agreement.

       

    3. Additional Terms Governing CLU Licenses – The following additional terms and conditions contained in this Section 2(c) shall apply to all Licensed Software licensed to Customer by Idera on a per-CLU basis.

      1. In non-virtual environments, the total physical CPUs each requiring an individual CLU License is calculated as the sum of (A) the number of licensed physical CPU sockets on the system motherboard that are populated with physical CPUs, each of which may have up to four (4) cores without requiring an additional CLU License in respect of Excess Cores (as defined below) as provided in clause (B) below (such initial four cores, the “Base Cores”), and (B) the sum of all Excess Cores calculated in accordance with this Section 2(c)(i).The term “Excess Cores” means, with respect to each physical CPU populated in a socket, the quotient of the aggregate number of all additional cores in excess of the Base Cores for such CPU divided by four (4) and rounded up to the nearest whole number. For example, if there is a two-socket server with each physical CPU socket populated with an eight-core processor, four (4) Physical CPU Units are counted (two in respect of the physical CPUs and two in respect of the cores in excess of the Base Cores per CPU) and four (4) CLU Licenses for the Licensed Software are required. If there is a two-socket server with each physical CPU socket populated with a six-core processor, four (4) Physical CPU Units are counted (two in respect of the physical CPUs and two in respect of the cores in excess of the Base Cores per CPU) and four (4) CLU Licenses for the Licensed Software are required.

         

      2. In virtual environments, a virtual CPU requiring an individual CLU License is defined as up to four (4) virtual CPUs allocated to a virtual machine. For example, if four (4) virtual CPUs are allocated to a virtual machine, four (4) Virtual CPU Units are counted and one (1) CLU License for the Licensed Software is required. If seven (7) virtual CPUs are allocated to a virtual machine, seven (7) virtual CPUs are counted and two (2) CLU Licenses for the Licensed Software are required.

         

    4. Copies & Disaster Recovery – Customer may make a reasonable number of back-up archival copies of the Licensed Software. In the event of any outage that results in the complete failure of the computer system upon which Customer has installed the Licensed Software, Customer’s right to use the Licensed Software shall include, during the pendency of such outage, the temporary right to use the Licensed Software in a replacement computing environment substantially similar to the original computing environment upon which the Licensed Software was installed immediately prior to such outage. Customer shall repro­duce all confidentiality and proprietary notices on each of the copies permitted hereunder and maintain an accurate record of the location of each of the copies.Customer shall not otherwise copy or duplicate the Licensed Material.Customer shall not reverse engineer, disassemble, translate, modify, adapt, or decompile the Licensed Material or apply any procedure or process to the Licensed Material in order to ascertain, derive, and/or appropriate the source code or source listings for the Licensed Software or any trade secret or other proprietary information contained in the Licensed Software.

       

    5. Maintenance Optional – Customer’s right to use the Licensed Software shall survive any election by Customer to terminate or not renew Maintenance Services from Idera.

       

    6. Other Services – All licenses and Maintenance Services purchased by Customer in respect of the Licensed Material shall be governed by this Agreement, together with the applicable Purchase Orders delivered hereunder.Unless otherwise agreed by the parties in writing, all other services purchased by Customer in respect of the Licensed Software, if any, including implementation services, training services and professional services (collectively, “Ancillary Services”), shall be governed solely by a separate written mutually acceptable services agreement entered into by the parties or, in the absence of such agreement, Idera’s standard professional services agreement, and acceptance of the Licensed Material shall not be contingent upon Customer’s acceptance of any such Ancillary Services.

       

  3. DELIVERY AND PAYMENT TERMS

    1. Delivery – All Licensed Material shall be delivered by Idera to Customer via electronic delivery using a secure internet download site.Ownership of the all licenses purchased hereunder and risk of loss for the related Licensed Materials shall be deemed to have passed to Customer once Idera has made the Licensed Material available for download by Customer, notified Customer of the availability of the Licensed Material for download and provided Customer with License Keys necessary for the installation and operation of the Licensed Software.

       

    2. Payment – Upon delivery of a Purchase Order by Customer, Idera shall deliver an invoice to Customer specifying the license fees and Maintenance Services fees payable pursuant to such Purchase Order.Customer shall pay all license fees and Maintenance Services fees specified therein within thirty (30) days of Customer’s receipt of such invoice.All fees payable by Customer in respect of such Ancillary Services may be separately invoiced.Customer’s payment obligation with respect to all license fees and Maintenance Services fees owing hereunder shall be independent of the provision of Ancillary Services, whether or not such Ancillary Services are separately invoiced.Any late payment of any amount owing hereunder shall accrue interest at a rate equal to the lesser of (i) 15% per annum and (ii) the maximum rate permitted by law.

       

    3. Taxes – All payments referred to in this Agreement are exclusive of value added tax, sales tax and any other applicable taxes, duties or imposts which (with the exception only of those based on Idera’s income) shall also be payable by Customer in accordance with applicable law.

       

  4. MAINTENANCE – Idera does not warrant that the Licensed Software will operate error-free or may be used error-free.Upon Customer’s payment of the Maintenance Services fees associated with the Maintenance Term purchased by Customer for the Licensed Software specified in a Purchase Order, Idera shall provide Maintenance Services in accordance with this Section 4 and in accordance with any additional Maintenance Services terms specified in such Purchase Order.

    1. Maintenance Agreement – Idera or its authorized representative will provide Maintenance Services for the Licensed Software during each Maintenance Term.Maintenance Services includes problem determinations, reasonable problem resolutions, provisioning of software program temporary fixes and new releases.Maintenance Services shall also include the additional Maintenance Service terms expressly set forth in writing in the applicable Purchase Order delivered by Customer, which are hereby incorporated herein by reference. Maintenance Services shall entitle Customer to receive, at no additional cost, all Updates.

       

    2. Additional Maintenance Term – Upon expiration of each Maintenance Term, Maintenance Services shall automatically renew for an additional 12-month Maintenance Term and Idera will invoice Customer unless Idera or its authorized representative is notified by Customer in writing at least sixty (60) days prior to the expiration of the current Maintenance Term that Customer will not purchase Maintenance Services for another Maintenance Term.

       

    3. Reinstatement – If Customer terminates Maintenance Services or elects not to renew Maintenance Services, Customer may, at its option, purchase Maintenance Services within one year of such termination or non-renewal by providing notice to Idera and making payment of Idera’s then-current list maintenance fees for the upcoming 365-day period plus an amount equal to 1.5 times the Maintenance Services fees that would have accrued during the period subsequent to such termination or non-renewal, had Customer not terminated or elected not to renew Maintenance Services.

       

  5. PROPRIETARY RIGHTS – Customer shall not acquire, by virtue of this Agreement, any right or license other than as expressly provided herein.Customer shall not reproduce the Licensed Material or other confidential or proprietary information of Idera, except as provided in this Agreement.All proprietary rights in and to the Licensed Material and all Evaluation Software (as defined in Section 16 below), all derivatives, translations, modifications, adaptations, improvements, enhancements or developments thereof and all confidential or proprietary information of Idera, including without limitation, all rights under and with respect to patents, copyrights, trademarks and rights under the trade secret laws of any jurisdiction shall remain the sole property of Idera or its applicable licensor, whether recognized by or perfected under applicable local law. Customer shall promptly notify Idera of any infringement of Idera’s proprietary rights of which it becomes aware.

     

  6. LIMITED WARRANTIES

    1. Warranty – Idera warrants to Customer that during the first thirty (30) days after purchase of the Licensed Software (the “Warranty Period”) such Licensed Software will perform substantially as described in the accompanying Licensed Documentation.Idera does not war­rant that (i) the Licensed Software will satisfy or may be customized to satisfy any of Customer's requirements or any other particular use or (ii) the use of the Licensed Software will be uninterrupted or error-free.Laws from time to time in force may imply warranties that cannot be excluded or can only be excluded to a limited extent.This Agreement shall be read and construed subject to any such statutory provisions.

       

    2. Remedies – If (i) at any time during a Maintenance Term, the Licensed Software contains Errors which make the Licensed Software unable to perform substantially as described in the accompanying Licensed Documentation or (ii) during the Warranty Period, Idera breaches the warranty set forth in clause (a) above, then Customer shall promptly notify Idera of such Error or breach and Idera shall (A) use all commercially reasonable efforts to correct such Error or breach within thirty (30) days of notification or (B) provide Customer within thirty (30) days of notification with a plan acceptable to Customerfor correcting such Error or breach.If such Error or breach is not corrected or if an acceptable plan for correcting such Error or breach is not established within such thirty (30) day period, Idera shall replace the defective Licensed Software or, if not practicable, accept the return of the defective Licensed Software and refund to Customer the amount paid for the defective Licensed Software, less depreciation based on a 3-year straight line schedule. Idera’s obligations under this Section 6(b) shall be waived in the event such Error or breach is due to (I) any defect in or misconfiguration of the computer hardware upon which the Licensed Software is installed, (II) improper handling or use of the software media by Customer, or (III) an unauthorized alteration, revision or configuration of the Licensed Software or to Customer’s computer system by Customer or its employees.Customer acknowledges that this Section 6(b) sets forth Customer's sole and exclusive remedy, and Idera's and its authorized representatives’ sole and exclusive liability, for any breach of warranty, Error or failure of the Licensed Software to function properly.

       

    3. Disclaimer – EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL WARRANTIES, REPRE­SENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE LICENSED MATERIAL, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY IDERA OR ITS AUTHORIZED REPRESENTATIVES OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE) ARE HEREBY OVERRIDDEN AND DISCLAIMED.

       

  7. INDEMNITY

    1. Indemnity – Subject to this Section 7 and Section 8 below, Idera agrees to indemnify, defend and hold harmless Customer from and against all claims, damages, losses, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of any claim by a third party asserting that the Licensed Material or any of Customer’s use thereof, infringes upon any third party's patent, copyright or trademark, provided that (i) Customer promptly notifies Idera in writing no later than thirty (30) days after Customer’s notice of any potential claim, (ii) Customer permits Idera to defend, compromise or settle the claim, and provided further that no settlement intended to bind Customer shall be made without Customer’s prior written authorization and (iii) Customer gives Idera all available information, reasonable assistance, and authority to enable Idera to do so.

       

    2. Alternative Remedy – If a claim described in Paragraph 7(a) may or has been asserted, Customer will permit Idera, at Idera's option and expense, to (i) procure the right to continue using the Licensed Material, (ii) replace or modify the Licensed Material to eliminate the infringement while providing functionally equivalent performance or (iii) accept the return of the Licensed Material and refund to Customer the amount actually paid to Idera or its authorized representative for such Licensed Material, less depreciation based on a 3-year straight-line depreciation schedule.

       

    3. Limitation – Idera shall have no indemnity obligation to Customer hereunder if the violation or infringement claim results from (i) a correction or modification of the Licensed Material not provided by Idera or its authorized representative, (ii) the failure to promptly install an Update, (iii) the combination of the Licensed Software with other non-Idera software and (iv) continuing the allegedly infringing activity after receiving written notice of such infringement claim from Idera.

       

  8. NO CONSEQUENTIAL DAMAGES – UNDER NO CIRCUMSTANCES WILL IDERA OR ITS AUTHORIZED REPRESENTATIVES BE LIABLE FOR ANY CON­SEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCI­DENTAL DAMAGES, WHETHER FORE­SEE­ABLE OR UNFORE­SEEABLE, BASED ON CLAIMS BY CUSTOMER OR ANY THIRD PARTY (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF THE LICENSED MATERIALS, INTER­RUPTION IN USE OR AVAIL­­ABILITY OF DATA, STOP­PAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OF EXPRESS OR IMPLIED WAR­RANTY, BREACH OF CONTRACT, BREACH OF ANY INTELLECTUAL PROPERTY RIGHT, MISREP­RESENTATION, NEG­LIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIA­BILITY.IN NO EVENT WILL THE AGGREGATE LIABILITY INCURRED IN ANY ACTION OR PROCEEDING BY IDERA OR ITS AUTHORIZED REPRESENTATIVE EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SPE­CIFIC LICENSED SOFTWARE THAT DIRECTLY CAUSED THE DAMAGE.

     

  9. CONFIDENTIALITY

    1. Confidentiality.Customer acknowledges that the Licensed Materials incor­porate confidential and proprie­tary information developed or acquired by or licensed to Idera and that all results of testing of the Licensed Software, whether performed by Customer or another third party, are confidential.In no event will Customer publish or disclose the results of any testing or performance specifications of the Licensed Software without Idera’s express prior written consent. A party that receives Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”) shall not: (i) export or re-export (within the meaning of US laws or other export control laws or regulations) any Confidential Information, except in strict compliance with US laws; (ii) reverse engineer any Confidential Information; or (iii) disclose or make available the Disclosing Party’s Confidential Information to any of the Receiving Party’s employees, agents, contractors or consultants or to any third parties, except those that have agreed in writing to be bound by terms and conditions substantially similar to, and no less restrictive with respect to limitations on use and disclosure, than those contained in this Agreement and each of which have a “need to know” in order to carry out the purposes set forth in this Agreement.Each party shall take all reasonable precautions necessary to safeguard the confiden­tiality of all Confidential Information disclosed by the other party, including those precautions (A) taken by the disclosing party to protect its own Confidential Infor­ma­­tion and (B) which the disclosing party or its authorized representative may reasonably request from time to time. Neither party shall allow the removal or deface­ment of any confidentiality or proprietary notice placed on the Confidential Information disclosed by the disclosing party. The placement of copy­right notices on Confidential Information shall not consti­tute publication or otherwise impair their confidential nature of such information.

       

    2. Disclosure – If an unauthorized use or disclosure of the disclosing party’s Confidential Information occurs within the recipient party’s enterprise, the recipient party will immed­iately notify the disclosing party or its authorized representative and take, at recipient party’s expense, all steps which may be available to recover such Confidential Information and to prevent its subsequent unauthorized use or dissemination.

       

  10. TERMINATION – Upon prior written notice to Idera, Customer may terminate this Agreement without any right to refund, except as otherwise expressly set forth in this Agreement. If Customer or any of Customer’s employees, consultants, authorized representatives or permitted third parties breach any term or condition of this Agreement, Idera may terminate this Agreement, without judicial or administrative resolution or obligation to refund. This Agreement will terminate automatically if Customer ceases to do business, becomes insolvent, goes or is put into receivership or liquidation, passes a resolution for its winding up (other than for the purpose of reconstruction or amalgamation) or for any of the foregoing, makes an arrangement for the benefit of its creditors, enters into bankruptcy, suspension of payments, moratorium, reorganization or any other proceeding that relates to insolvency or protection of creditors’ rights or takes or suffers any similar action in consequence of debt.Upon the termination of this Agreement for any reason, all rights granted to Customer hereunder will cease, and Customer will promptly (i) purge the Licensed Software and any related Updates from all of Customer’s computer systems, storage media and other files, (ii) destroy the Licensed Material and all copies thereof and (iii) deliver to Idera an affidavit certifying that Customer has complied with these termination obligations.The provision of Sections 1, 3, 8 through 12, 14, 15 and 17 shall survive the termination of this Agreement.

     

  11. U.S. EXPORT RESTRICTIONS – Customer acknowledges that the Licensed Materials and all related technical information, documents and materials are subject to export controls under the U.S. Export Administration Regulations.Customer covenants and agrees to comply with all import and export control regulations of the United States with respect to the Licensed Material.Customer acknowledges that it may not re-export or divert the Licensed Material or any related technical information, document or mater­ial, or direct derivatives thereof, to any country set forth on the U.S. Department of Commerce’s list of T-5 countries (currently, Cuba, Iran, North Korea, Sudan and Syria), including any future changes to the government’s list of T-5 countries.

     

  12. EQUITABLE RELIEF – The parties recognize that Sections 5, 9, 11 and 13 are necessary for the protection of the business and goodwill of the parties and are considered by the parties to be reasonable for such purpose.The parties agree that any breach of such Sections would cause the other party substantial and irreparable damage and therefore, in the event of any such breach, in addition to other remedies which may be available, the non-breaching party shall have the right to seek specific performance and other injunctive and equitable relief in a court of law.

     

  13. LICENSE KEY & USE REPORTING – Customer acknowledges that a security code owned and controlled by Idera or its subsidiaries (the "License Key") is required to render the Licensed Software operational on Customer’s computer hardware. Upon use of a permanent License Key to install the Licensed Software on Customer’s computer hardware, no other security code will be required for the Licensed Material to operate on such computer hardware in accordance with the terms and restrictions contained in this Agreement. Customer shall not attempt to crack, alter or otherwise derive the License Key. Idera shall promptly provide Customer with all necessary License Keys upon purchase of the Licensed Software or upon any authorized transfer of the Licensed Software to any other hardware equipment permitted under Section 2 of this Agreement.Idera reserves the right to gather data on license usage by Customer for each item of Licensed Software, including License Key numbers, server IP addresses, email addresses of users, domain counts and other information deemed relevant, to ensure that the Licensed Software is being used in accordance with the terms of this Agreement. Idera expressly prohibits domain count overrides without prior written approval. Customer hereby consents to Idera gathering and processing such usage information and agrees not to block, electronically or otherwise, the transmission of data required for compliance with this Agreement. Any unauthorized use of the Licensed Software by Customer or other use by Customer in violation of the restrictions contained herein shall be deemed a material breach of this Agreement. In addition to the foregoing, within ten (10) business days of Customer’s receipt of Idera’s written request, Customer shall provide to Idera a written report certifying to Idera the number of licenses for Licensed Software installed, used or accessed by Customer, the identity of the applicable servers, hardware or computers upon which such licenses are installed and, to the extent applicable, the installation location and location and number of users accessing such licenses, together with such other information as may be requested by Idera and necessary to confirm Customer’s compliance with the terms of this Agreement. The auditing, reporting and certification rights and obligations set forth in this Section 13 shall survive termination of this Agreement for a period of eighteen months.

     

  14. ENFORCEABILITY – If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, void, invalid or illegal, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.

     

  15. ENTIRE AGREEMENT 

    1. Customer acknowledges that it has read this Agreement, understands it and agrees to be bound by its terms.Customer and Idera further agree that, subject to clause (b) below, this Agreement, together with all Purchase Orders delivered in connection herewith and all exhibits, schedules and annexes hereto, is the complete and exclusive statement of the agreement between Customer and Idera and supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of this Agreement, including any shrink-wrap agreements, click-wrap agreements or demo or trial agreements which may accompany the Licensed Material or which may have been previously in force between the parties. Subject to clause (b) below, this Agreement may not be amended, modified, supplemented or altered except by a written agreement that is signed by both parties.

       

    2. UNDER NO CIRCUMSTANCES MAY THE TERMS OF THIS AGREEMENT OR ANY IDERA PURCHASE ORDER BE AMENDED, MODIFIED, SUPPLEMENTED, ALTERED, SUPERSEDED OR REPLACED BY ANY NON-IDERA INVOICE OR NON-IDERA PURCHASE ORDER OR OTHER SIMILAR INSTRUMENT DELIVERED BY CUSTOMER TO IDERA.EACH PARTY ACKNOWLEDGES AND AGREES THAT, AS A CONVENIENCE TO CUSTOMER AND ONLY FOR CUSTOMER’S INTERNAL ACCOUNTING PROCEDURES, CUSTOMER MAY DELIVER TO IDERA A CUSTOMER INVOICE OR CUSTOMER PURCHASE ORDER OR OTHER SIMILAR DOCUMENT FOR ANY TRANSACTION CONTEMPLATED HEREUNDER AND THAT NO ACTION BY IDERA, INCLUDING IDERA’S DELIVERY OF ANY LICENSED MATERIALS OR ACCEPTANCE OF PAYMENT, SHALL BE DEEMED TO BE ACCEPTANCE OF ANY OF THE TERMS OR CONDITIONS CONTAINED IN SUCH CUSTOMER INVOICE OR CUSTOMER PURCHASE ORDER OR OTHER SIMILAR INSTRUMENT AND SUCH TERMS AND CONDITIONS SHALL BE VOID AND OF NO FORCE OR EFFECT, UNLESS ACCEPTED BY IDERA PURSUANT TO A WRITTEN INSTRUMENT SIGNED BY BOTH PARTIES.

       

  16. TRIAL LICENSE 

    1. If Customer is evaluating Evaluation Software (as defined below), then only the terms and conditions of this Section 16 (including those Sections of this Agreement incorporated in this Section 16 by reference) will govern Customer’s temporary use of such Evaluation Software (and no other terms of this Agreement shall apply to Customer or govern Customer’s use of Evaluation Software) and upon purchase of a commercial license for such Evaluation Software, this entire Agreement, exclusive of this Section 16, shall apply to Customer and govern all use of the Licensed Material.

       

    2. Idera is the owner and provider of certain proprietary software and documentation that Customer may request to use, from time to time, on a temporary basis for the sole purpose of testing and evaluating such software prior to purchasing a commercial license for such software (“Evaluation Software”). All installation and usage of Evaluation Software by Customer requires a temporary License Key or trial License Key to be issued by Idera and Customer is only permitted to use Evaluation Software during the term of the temporary License Key or trial License Key issued by Idera.

       

    3. Evaluation Software is provided to Customer solely for evaluation purposes for Customer’s own testing and evaluation purposes (an “Evaluation”) and upon delivering a temporary License Key or trial License Key to Customer, Idera hereby grants Customer a non-transferable, nonexclusive, limited license to operate and use the Evaluation Software for such Evaluation during the period commencing on the date Customer downloads the Evaluation Software and ending on the expiration of the temporary License Key or trial License Key (including any extensions thereof authorized by Idera, the “Evaluation Period”). Customer agrees not to cause or permit the reverse engineering, disassembly, modification, translation or decompilation of any Evaluation Software. Customer shall not copy the Evaluation Software, or create or develop any derivative software based upon the Evaluation Software.

       

    4. Customer acknowledges that all Evaluation Software incor­porates confidential and proprie­tary information developed or acquired by or licensed to Idera and that all results of testing of the Evaluation Software, whether performed by Customer or another third party, are confidential.In no event will Customer publish or disclose the results of any testing or performance specifications of the Evaluation Software without Idera’s express prior written consent. Customer shall not remove or deface­ of any confidentiality or proprietary notice placed on the Evaluation Software. The placement of copy­right notices on Evaluation Software shall not consti­tute publication or otherwise impair their confidential nature of such information.

       

    5. ALL EVALUATION SOFTWARE PROVIDED BY IDERA IS DELIVERED "AS IS, WHERE IS" AND IDERA SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IDERA DOES NOT WARRANT THAT THE EVALUATION SOFTWARE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE.UNDER NO CIRCUMSTANCES WILL IDERA OR ITS AUTHORIZED REPRESENTATIVES BE LIABLE FOR ANY CON­SEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCI­DENTAL DAMAGES, WHETHER FORE­SEE­ABLE OR UNFORE­SEEABLE OR WHETHER BASED ON CLAIMS BY CUSTOMER OR ANY THIRD PARTY, ARISING OUT OF OR RELATED TO CUSTOMER’S USE OF EVALUATION SOFTWARE.IN NO EVENT WILL THE AGGREGATE LIABILITY OF IDERA OR ITS AUTHORIZED REPRESENTATIVES INCURRED IN ANY ACTION OR PROCEEDING RELATING TO CUSTOMER’S USE OF EVALUATION SOFTWARE EXCEED ONE HUNDRED DOLLARS.

       

    6. The Evaluation and the evaluation license granted under this Section 16 shall automatically terminate immediately upon the earliest of (i) the expiration of the Evaluation Period, (ii) the date upon which Customer purchases a commercial license for such Evaluation Software and (iii) the date upon which either party notifies the other party of its termination of the Evaluation.Upon expiration of the Evaluation Period or the Evaluation, Customer shall cease using and shall uninstall and destroy the Evaluation Software unless Customer has purchased a commercial license for such Evaluation Software on or prior to such expiration.

       

    7. Sections 1, 5, 8, 11, 14, 15 and 17(a) through 17(g) of this Agreement shall be deemed incorporated by this reference in this Section 16 and the Evaluation license granted under this Section 16.

       

  17. MISCELLANEOUS 

    1. Customer shall not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder to any other person or entity, whether by contract, merger or operation of the law, without Idera’s prior written consent. In the event of any merger of Customer or a sale of substantially all of the assets of Customer in which Customer is not the surviving entity, Customer may assign or transfer any licenses granted under this Agreement; provided, that Customer provides Idera with written notice of such transfer within thirty days of such merger or sale. Any assignment or delegation in breach of this Section 17(a) shall be void. This Agreement shall be binding upon the parties hereto and shall inure to the benefit of the parties hereto and their respective permitted successors and assigns.

       

    2. All notices or approvals required or permitted under this Agreement must be given in writing and delivered to the appropriate party at the address set forth in this Agreement or in any Purchase Order delivered in connection with this Agreement.

       

    3. The waiver of compliance with or breach of any term or condition of this Agreement or the failure of a party to exercise any right under this Agreement shall in no event constitute a waiver as to any other failure to comply or breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement. Unless otherwise specified herein, the rights and remedies of Idera set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity.

       

    4. THIS AGREE­MENT WILL BE GOVERNED BY AND INTER­PRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW RULES.IDERA AND CUSTOMER HEREBY IRREVOCABLY AGREE ON BEHALF OF THEMSELVES THAT THE SOLE AND EXCLUSIVE JURISDICTION AND VENUE FOR ANY LITIGATION ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF SHALL BE IN AN APPROPRIATE FEDERAL OR STATE COURT IN THE STATE OF TEXAS LOCATED IN HARRIS COUNTY.

       

    5. Unless otherwise specified herein, the rights and remedies of Idera set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity.

       

    6. This Agreement is not intended to be nor shall it be construed as a joint venture, association, partnership or other form of business organization or agency relationship.

       

    7. Headings used in this Agreement are for reference purposes only and shall not be used to modify the meaning of the terms and conditions of this Agreement.This Agreement may be executed in counterparts, all of which shall constitute one single agreement between the parties hereto.

       

    8. In consideration of the mutual covenants contained herein, including the rights and licenses granted to Customer herein, the parties hereto do hereby agree that for a period of two years following Customer’s most recent purchase of any licenses or services, including Maintenance Service, from Idera or its authorized representative, Customer shall not solicit, induce, hire, engage, or attempt to hire or engage any employee of Idera, or in any other way interfere with Idera’s contractual or employment relations with any of its employees, nor will Customer hire or engage or attempt to hire or engage any individual who was an employee of Idera at any time during such two-year period.

       

  

IN WITNESS WHEREOF, Idera and Customer have caused this Agreement to be executed by their duly authorized representatives identified below, as of the date first written above.

 

[NAME OF CUSTOMER]                                                                                       IDERA, INC.

 

By:                                                                                                                          By:                                                                          

Name:                                                                                                                    Name:                                                                     

Title:                                                                                                                       Title:                                                                       

Address:                                                                                                                Idera, Inc.

                                                                                                                                2950 North Loop Freeway West

                                                                                                                                Suite 700

Phone:                                                                                                                   Houston, Texas 77092

Fax:                                                                                                                        Phone: 713-862-5250

Attn:                                                                                                                       Fax: 713-862-5210

                                                                                                                               Attn: Finance Department

 

[END OF AGREEMENT]