GemStone Systems, Inc. WEB EDITION SOFTWARE LICENSE AGREEMENT
This Agreement is between GemStone and Licensee, as each is
defined below. Licensee's installation of the Software Products,
execution of this Agreement or otherwise indicating Licensee’s
assent, indicates Licensee's acceptance of the terms and
conditions of this Agreement. The scope of the license granted,
as specified in this Agreement is defined in Section 2 below.
DEFINITIONS. As used in this Agreement:
"Deploy" means any use of the Software Products that is available
to persons and/or systems outside of an internal development and/or
test environment. Deployment includes internal use of the Software
Products within an organization that is not solely for development or
test purposes.
"GemStone" means GemStone Systems, Inc., an Oregon corporation, or when
applicable, its subsidiary from which Licensee licenses the Software
Products.
"Key File" means a form of computer code contained in the Software
Products which enables the operation of the Software Products, yet
limits the capacity and operation of the Software Products to values
contained therein.
"License" means the license described in Section 2 below which GemStone
has granted to Licensee.
"Licensee" means the entity or individual who installs the Software
Products or otherwise agrees to be bound by the terms and conditions
contained in this Agreement. Each individual entering this Agreement on
behalf of an entity represents and warrants that he/she has the authority
to bind the entity to the terms and conditions of this Agreement.
"License Term" means the time limit set forth in the definition of the
License in Section 2, subject to the termination provisions of Section
10 of this Agreement.
"Software Products" means GemStone/S software downloaded or otherwise
acquired by Licensee that may include software licensed from third
parties. Software Products include all updates and upgrades of Software
Products provided to Licensee by GemStone and all modifications of the
Software Products.
"Technical Data" means the published user manuals included with the
Software Products, and any similar materials provided to Licensee by
GemStone to supplement the published user manuals.
LICENSE TYPES
"Web Edition License" means a no-cost license to use the Software Products
to develop and Deploy software applications for internal or commercial
use subject to the limitations specified in the Key File included with
the Software Products. Key Files which allow higher limitations require
a different License.
"Evaluation License" means a temporary license to use the Software
Products for evaluation and testing purposes only and not for internal
Deployment or commercial use. Upon expiration of the time limit in the
Key File Licensee will immediately cease use of the Software Products,
delete the Software Products from all computer systems, and destroy all
copies of the Software Products and all related evaluation materials.
An Evaluation License does not include the right to Deploy the Software
Products for any applications internally or externally.
LICENSE GRANT, AUDIT RIGHTS.
GemStone grants to Licensee a non-exclusive, non-transferable license,
without right to sublicense, to install and use the Software Products
and Technical Data for the License Term specified in their authorized Key
File subject to the terms of this Agreement, including without limitation
the general definitions set forth in Section 1 and the definition of
the License as set forth in Section 2, and the capacity and operational
limitations specified in their authorized Key File.
Licensee will keep accurate records of all activity with respect to
its use of the Software Products, including, without limitation, all
editions of the Software Products used. Licensee will provide GemStone
with summaries of the records upon request. At any time during the
term of this Agreement and for three years following termination of this
Agreement, GemStone will have the right to audit Licensee's records in
order to verify that Licensee is limiting use of the Software Products in
accordance with its License for the Software Products and this Agreement.
If any audit reveals that Licensee is not limiting use of the Software
Products in accordance with its License for the Software Products and this
Agreement, Licensee will pay GemStone any unpaid or underpaid License
Fees at GemStone's then current rates within five days of notification
of the underpayment. If any audit reveals that Licensee owes GemStone
an amount equal to or greater than five percent of License Fees actually
paid by Licensee, Licensee will also reimburse GemStone for the costs
associated with the audit.
OWNERSHIP. GemStone or its licensors retain title to, ownership of, and
intellectual property rights in, the Software Products and Technical
Data and all modifications thereto, including all copies thereof.
No title to or ownership of the Software Products or Technical Data is
transferred to Licensee.
PROPRIETARY NOTICES. Licensee will not remove or alter GemStone's or
any third party's ownership, trademark, copyright, or other proprietary
notices on the Software Products or Technical Data. Licensee must
reproduce and include all copyright notices and other proprietary notices
on each copy of the Software Products and Technical Data.
USE RESTRICTIONS.
Licensee will comply with all restrictions incorporated into the License
as described in Section 2 and any Key File associated with the Software
Product.
Except as expressly allowed under the terms of the License granted to
Licensee, Licensee will not (a) modify, develop derivative works of,
adapt, alter, or translate the Software Products (all such actions
are "modifications" of the Software Products); (b) reverse engineer,
decompile, disassemble or otherwise attempt to derive the source code of
the Software Products; (c) use the Software Products except on equipment
owned or leased by Licensee; (d) copy the Software Products or Technical
Data except as permitted in the definition of the License, except
Licensee will be permitted to create one copy of the Software Products
for archival storage to assure against loss; (e) disclose the results of
any software performance benchmarks involving the Software Products which
are generated by Licensee or anyone else to any third party without the
prior written consent of GemStone; or (f) allow the unauthorized use of
the Software Products and Technical Data. Licensee will notify GemStone
and pay any additional charges pursuant to GemStone's then current price
list for any use of the Software Products that exceeds the use for which
Licenses have been purchased. In no event will Licensee allow any third
party to copy or access the Software Products or Technical Data.
No modifications of the Software Products are permitted, unless such
rights are specifically set forth in the License type or otherwise
granted in writing. In the event modifications or derivative works are
permitted, all modifications of the Software Products will be deemed to
be part of the Software Products, which may be used by Licensee only in
accordance with this Agreement. GemStone will be the sole owner of any
modifications to the Software Products. Licensee's right to modify the
Software Products is conditioned upon the Licensee not incorporating with
the Software Products any software that is licensed pursuant to terms
that directly or indirectly create obligations for GemStone with respect
to a modification thereof, or grant to any third party any rights to or
immunities under GemStone's intellectual property or proprietary rights
in the Software Products or a modification thereof. Software that is
prohibited includes, without limitation, all software licensed pursuant
to terms that require that software incorporated into, derived from,
or distributed with such software be (a) disclosed or distributed in
source code form, (b) licensed for the purpose of creating derivative
works, or (c) redistributable at no charge.
Licensee acknowledges that no computer software is error free and that
the Software Products were not designed for use with, and Licensee will
not use the Software Products for, applications for which errors, bugs
or malfunctions in the Software Products could cause personal injury or
death, property or environmental damage, or economic loss, including,
without limitation, use in hazardous environments requiring fail-safe
performance, the operation of nuclear facilities, aircraft navigation or
communication systems, air traffic control, direct life support machines,
or weapons systems. Licensee will be solely responsible for taking all
security precautions, such as data backup, testing and error detection
procedures, which are necessary in order to ensure that errors in the
Software Products and the applications using the Software Products do
not cause adverse consequences.
KEY FILES. Licensee acknowledges that the Software Products contain
Key Files that are a form of disabling code. For the purpose of this
paragraph, "disabling code" means computer code which interferes with
the normal operation of the Software Products in order to (a) prevent
unauthorized use of the Software Products or (b) provide limited use
of the Software Products. At the request of Licensee, GemStone will
provide reasonable advice and assistance to Licensee with respect to
any Key File in order to ensure that the existence of the code does
not interfere with Licensee's authorized use of the Software Products.
LICENSEE WILL TAKE ANY NECESSARY PRECAUTIONS TO AVOID ANY LOSS OF DATA
THAT MAY RESULT FROM EXPIRATION OF A KEY FILE TIME LIMIT.
CONFIDENTIALITY.
The Software Products and Technical Data constitute highly valuable
property of GemStone and contain trade secrets and confidential
information owned by GemStone. Licensee acknowledges that it may
receive from GemStone other confidential information which is marked
as "confidential". Licensee will observe complete confidentiality
with respect to the Software Products, Technical Data, all performance
data and all information marked "confidential", and will not disclose
this information to any third party, except its employees with a need
for access to the information, or use the information for any purpose
not contemplated or permitted under this Agreement. The obligations
of confidentiality in this Section 7 will survive the termination
or cancellation of this Agreement. Licensee will ensure that its
employees and persons affiliated with Licensee who have access to the
Software Products, Technical Data or GemStone's confidential information
understand and acknowledge the obligations of confidentiality imposed
in this Agreement, and are aware of and comply with the terms of this
Agreement. Licensee will indemnify and hold GemStone harmless for any
breach of this Agreement by an employee, former employee, or person
affiliated with or formerly affiliated with Licensee.
Notwithstanding the foregoing, Licensee will have no obligation to hold
any information in confidence to the extent that Licensee can show
by documentary evidence that the information: (a) was already known
to Licensee at the time it was obtained by Licensee from GemStone,
free from any obligations to hold the information in confidence; (b)
was or becomes publicly known through no wrongful act of Licensee;
(c) was rightfully received from a third party without restriction and
without breach of any obligation to GemStone or its suppliers; or (d)
was independently developed by Licensee without use of any confidential
information of GemStone or its suppliers.
TERM AND TERMINATION.
The term of this Agreement will commence upon the earliest of:
(a) installation of the Software Products; or (b) written execution of
this Agreement. This Agreement will terminate on the earliest of: (i)
Licensee's breach of Sections 6 (Use Restrictions) or 8 (Confidentiality);
(ii) the last day of the License Term or renewal term specified in a
Key File; or (iii) a party's failure to remedy any default under this
Agreement within 30 days of receipt of written notice from the other
party specifying the default; provided, however, the cure period is not
applicable to Licensee's failure to make timely payment.
Upon termination of this Agreement for any reason, all Licenses granted
will terminate and Licensee will pay all unpaid amounts that have accrued
prior to termination and will immediately cease use of and will return to
GemStone and delete from all computer systems all copies of the Software
Products and Technical Data. Upon GemStone's request, Licensee will
submit a written certificate of compliance with this Section 9.2 signed
by Licensee (if Licensee is an individual) or by an officer of Licensee
(if Licensee is an entity).
SUPPORT. Maintenance and support for the Software Products must be
purchased separately from GemStone.
WARRANTY; LIMITATION OF LIABILITY.
GemStone does not warrant that the Software Products are error free or
that Licensee will be able to operate the Software Products without
problems or interruptions. Without limiting the preceding, Licensee
accepts the Software Products AS IS with all faults.
Nothing in this section will relieve Licensee of its obligation to pay
any appropriate maintenance and support fees.
GEMSTONE'S TOTAL CUMULATIVE LIABILITY TO THE LICENSEE, IN CONTRACT, TORT
OR OTHERWISE, FOR ALL DAMAGES, COSTS, CLAIMS, OR DEMANDS INCURRED OR
SUFFERED BY OR AWARDED AGAINST LICENSEE ARISING DIRECTLY OR INDIRECTLY
OUT OF THE PERFORMANCE OR ANY BREACH OF THIS LICENSE WILL IN NO EVENT
EXCEED THE TOTAL AMOUNT PAID TO GEMSTONE BY LICENSEE UNDER THIS AGREEMENT.
THE WARRANTY CONTAINED IN SECTION 11.1 IS IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO,
ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE, AND NONINFRINGEMENT OF THIRD-PARTY RIGHTS. GEMSTONE WILL NOT BE
RESPONSIBLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL,
EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT OR
TORT, DUE TO ANY FORESEEN OR UNFORESEEN CAUSE FROM LICENSEE'S OR ANY
THIRD PARTY'S USE OR THE PERFORMANCE OF THE SOFTWARE PRODUCTS UNDER
THIS AGREEMENT.
INDEMNITY BY LICENSEE. Licensee acknowledges that GemStone has no
knowledge of, or control over, the use of the Software Products by
Licensee. Licensee will defend, indemnify and hold GemStone harmless
with respect to any suit, claim or proceeding brought against GemStone
alleging that use of the Software Products by, or under authority
of, Licensee or Licensee's current or former employees, consultants,
or agents caused personal injury, property damage, or economic loss.
In addition, Licensee will defend, indemnify and hold GemStone harmless
with respect to any suit, claim or proceeding brought against GemStone
due to Licensee's modification of any Software Product.
GENERAL.
This Agreement and other documents referred to in this Agreement
constitute the entire agreement between the parties and supersede all
prior or contemporaneous agreements or representations, written or oral,
concerning the subject matter of this Agreement. The parties may amend
this Agreement only by a written instrument stating an intention to
modify and signed by both parties.
Failure by either party at any time to require performance or to claim a
breach of any term or condition of this Agreement will not be construed
as a waiver of that term or condition affecting the right to require
performance or to claim a breach.
Licensee may not assign this Agreement without the prior written
permission of GemStone.
If any provision in this Agreement may be held to be invalid or
unenforceable, the meaning of that provision will be construed so
as to render it enforceable to the extent feasible. If no feasible
interpretation would save that provision, it will be severed from
this Agreement and the remainder will remain in full force and effect.
However, in the event that provision is considered an essential element
of this Agreement, the parties will promptly negotiate alternative,
reasonably equivalent and enforceable terms.
For all agreements between GemStone and Licensee, the rights and
obligations of the parties and all interpretations and performance of the
agreements will be governed in all respects by the laws of the State of
Oregon without regard to their conflict of law provisions. The United
Nations Convention on Contracts for the International Sale of Goods
does not apply to this Agreement. Each party irrevocable consents to
the jurisdiction and venue of any federal or state courts located in
Multnomah County, Oregon in any proceeding or action arising from or
relating to this Agreement.
Section headings are inserted for convenience only and will not be used
in any way to construe the terms of this Agreement.
In the event that suit or other action is instituted to interpret or
enforce this Agreement, the prevailing party will be entitled to recover
its attorney fees, including those incurred on appeal, as determined by
the court.
This Agreement is expressly made subject to any laws, regulations, orders
or other restrictions on the export of software products from the United
States of America which may be imposed by the government of the United
States of America from time to time. Licensee may not export, reexport,
directly or indirectly, the Software Products to any country for which the
United States government, any agency of the United States government or
any foreign government requires an export license or other governmental
approval at the time of export or reexport without first obtaining the
required license or approval. Licensee will indemnify and hold GemStone
harmless for any breach of this Section. Licensee warrants that it is
not domiciled in, a citizen, national or resident of, and is not under
the control of the government of Cuba, Iran, Iraq, Libya, North Korea,
Syria, Sudan, or any other country or any distributee to which the United
States has prohibited export.
All notices permitted or required by this Agreement will be delivered in
a manner in which a receipt is obtained, including confirmed facsimile,
to the headquarters office of GemStone and to Licensee at the location
to which the Software Products were delivered.
If Licensee is a branch or agency of the United States Government, whether
that unit or agency be civilian or part of the Department of Defense,
this provision applies. The Software Products and Technical Data are
comprised of "commercial computer software" and "commercial computer
software documentation" as such terms are used in 48 C.F.R. 12.212
and are provided to the Government consistent with 48 C.F.R. 12.212
and 48 C.F.R. 227.7202-1 through 227.7202-4. Except as otherwise
specifically provided for in this Agreement, the Software Products
and Technical Data may not be used, reproduced or disclosed to anyone,
including support service contractors or their subcontractors, by the
Government without the prior written consent of GemStone, such consent
may be freely withheld at GemStone's own discretion. The restrictions
in this provision are in addition to, and not in lieu of, any other
restrictions contained in or incorporated by this Agreement.
GEMSTONE: GemStone Systems, Inc.
By:
Name:
Title:
Date:
LICENSEE:
By:
Name:
Title:
Date:
