IMPORTANT: LICENSOR IS PROVIDING THIS SOFTWARE FOR YOUR USE SUBJECT TO
YOUR AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT
BY CLICKING ON SETUP'S ACCEPT BUTTON, YOU WILL NOT BE ABLE TO USE THE
SOFTWARE. BY CLICKING SETUP’S ACCEPT
BUTTON YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTOOD IT, AND
AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
END USER LICENSE AGREEMENT
WHEREAS, Licensor desires to grant to Licensee, and Licensee desires to
accept from Licensor, a license to use Licensed Software (as defined herein)
upon the terms and conditions hereinafter set forth; NOW, THEREFORE, Licensor
and Licensee agree as follows:
For this End User License Agreement (“License Agreement”) the following terms shall have the meanings
given below:
“Blades” means multiple server modules
housed in a single chassis each with its own CPU, hard disk and memory.
“Core” means a single unit
of processing within a computer chip, comprising an arithmetic logic unit,
registers, instruction fetcher and data fetcher/storer. “CPU” (Central
Processor Unit) means a data processing unit, normally identified with a single
microchip mounted on a single circuit board and can comprise several Cores. A
computer “box” can contain several CPUs. The “box” is sometimes referred to as
a “server” or a “machine” (or possibly a “mainframe”).
“Licensor” means the Micro Focus
named legal entity authorized to license the Licensed Software in the country
in which Licensee acquires the Licensed Software.
“Licensed
Software”
means the object code version of the Licensor computer programs, their
accompanying user documentation (“Documentation”) and other supplemental
materials as provided to Licensee by Licensor, including but not limited to any
software security keys, modifications or additions relating thereto. The
Licensed Software shall also include any new releases, updates, revisions,
modifications, additions, corrections and fixes of the Licensed Software that
Licensee receives under Sections 6 and 7 below or under maintenance for which
Licensee has separately contracted and paid. From commencement of this License
Agreement, the “Licensed Software” shall also include, and this License
Agreement shall apply to, any prior versions of the Licensed Software licensed
by Licensee. This License Agreement does not grant Licensee the right to any
new releases, updates, revisions, modifications, additions, corrections and
fixes of the Licensed Software unless provided by Licensor under Section 6
below. Licensed Software products are available to operate on the Windows,
Linux, Unix or other computer platforms and a separate license is required for
a Licensed Software product for each computer platform.
“Product
Order”
means a document that has been (i) executed by Licensee, describing each
Licensed Software license purchased and (ii) accepted by Licensor or its
authorized distributors. Licensor will
accept the Product Order by either confirming Licensor’s acceptance in writing
or by delivering the Licensed Software Licensee, whichever occurs first. Each Product Order shall constitute a
separate agreement and shall incorporate therein all of the terms and conditions
of this License Agreement. In the event
of any conflict between the terms of this License Agreement and the terms of
any Product Order which have been expressly accepted by a duly authorized
signatory of Licensor in writing, such terms of the Product Order shall
govern. In no event shall any terms and
conditions of Licensee contained in a purchase order or similar document issued
by Licensee in connection with this License Agreement or a Product Order apply and
any such document issued shall be only for the administrative purposes of
identifying the Licensed Software ordered, the number of licenses, and the
price to be paid and shall have no other legal effect.
“Disaster
Recovery System”
is defined as a computer system that is used (i) if a disaster arises and the
original production system is unavailable, (ii) for the purposes of disaster
recovery testing and/or (iii) for system diagnostics or maintenance of the
Disaster Recovery System itself. A Disaster Recovery System does not include
any system that is in the same computer cluster as the machine on which the
development or production copy of the Licensed Software is installed.
“Virtual
Machine”
means a software implementation that executes programs like a physical machine
where the software running inside the virtual machine is limited to the
resources and abstractions provided by the virtual machine.
1 GRANT OF LICENSE. For payment of the applicable non-refundable license fees identified on the Product Order, Licensor grants solely to Licensee, as an end user, a personal, perpetual, non-transferable, non-sublicensable and non‑exclusive license to use the Licensed Software subject to the terms and conditions set forth in this License Agreement. Licensee shall have the right to use the Licensed Software solely for its own internal use and benefit. For the avoidance of doubt, the license granted herein does not permit (i) third party contractors (including without limitation outsourcers) to access or use the Licensed Software for Licensee’s internal use and benefit without the prior written consent of Licensor and the payment of an additional license fee, (ii) the public to access or use the Licensed Software (including without limitation, via the internet) except as specifically provided in Annex 1 hereunder, and/or (iii) installation, use or access of the Licensed Software on, in, or from a Virtual Machine except as specifically provided in Annex 1 or Annex 2 hereunder. Where permitted by Licensor pursuant to sections 1(i) and (ii) hereof, Licensee shall be liable to Licensor in respect of any breach of this License Agreement resulting from any access or use by third party contractors and/or the public. Access and/or use of data, results and/or output obtained and/or generated, either directly or indirectly, through the use of any Licensed Software are deemed to be access and/or use of such Licensed Software and such data, results and/or output shall be subject to the licensing terms and restrictions applicable to such Licensed Software. Different license options are available from Licensor as set forth or referred to in Annex 1 (“License Option(s)”), although not all License Options are available for each specific Licensed Software product. The applicable License Option to be purchased by Licensee for the Licensed Software shall be identified in the Product Order. Additional License Options (as appropriate) are required to be purchased by Licensee for use of the Licensed Software on a Disaster Recovery System or for load-balancing, fail-over, training, or testing purposes. Licensed Software purchased for testing purposes will be subject to the Test License Option terms and restrictions set forth in Annex 1.E. Certain Licensed Software may also be subject to additional terms and conditions as set forth in the “Specific Software Terms” located in Annex 2. The Specific Software Terms will prevail in the event of any conflict.
2
USER RESTRICTION. Licensee agrees not to:
2.1 Copy and distribute the Licensed Software, in
whole or in part, for internal use without paying Licensor the applicable
additional fees, except (i) for making a reasonable number of archival back-up
copies; or (ii) as expressly authorized by Licensor in writing; or (iii) for
making a reasonable number of copies of the Documentation supplied to Licensee
by Licensor in electronic form. Licensee shall reproduce and affix all copyright
and other proprietary rights notices appearing in or on the Licensed Software,
including the notices of all third party suppliers and all those included in
any Third Party Software, as defined below in all such copies thereof.
2.2 Copy and/or distribute the Licensed Software, in whole or in part, to
third parties without first entering into a separate distribution license
agreement with Licensor
or permit use or access to all or part of the Licensed Software to any third
party except as specifically provided in Annex 1 hereunder. For the avoidance
of doubt, third party(ies) include without limitation contractors, outsourcers,
Licensee’s customers and the public.
2.3 Transfer, ship or use the Licensed Software
outside the continent
in which it was originally licensed to Licensee, except as otherwise specified
in Annex 1 and/or Annex 2.
2.4 Install, access or use the Licensed Software
on an operating system other than the operating system for which the Licensed
Software was originally licensed to Licensee, except as otherwise specified in
Annex 1 and/or Annex 2.
2.5 Assign, sell, rent, lease, lend, sublicense,
outsource or otherwise transfer the Licensed Software to any third party, or
authorize or appoint any third party to do so.
2.6 Use the Licensed Software for timesharing,
facilities management, outsourcing, hosting, service bureau use, other data processing services to third parties or
like purposes.
2.7 Modify the Licensed Software or provide any
person with the means to do the same.
2.8 Create derivative works, translate,
disassemble, recompile or reverse engineer any Licensed Software or attempt to
do so (except to the extent applicable law specifically permits such activity).
2.9 Alter, destroy, or otherwise remove any
proprietary notices or labels on or embedded within the Licensed Software or
Documentation.
2.10 Utilize for itself, or permit any third party
to utilize, any software application program created, in whole or in part,
utilizing any Licensed Software without a valid and properly granted
Deployment Product License.
2.11 Use the Licensed Software in a manner other
than as specifically permitted in this License Agreement.
3
AUDITS. Licensee agrees to (i) keep records of and
provide the location, model and serial number of any and all machines on which
the Licensed Software is installed or from which the Licensed Software is
accessed, and the names of and how many users are accessing the Licensed
Software, (ii) implement a reasonable mechanism or process to ensure that
Licensee’s use of the Licensed Software does not exceed the number of licenses
granted, (iii) take all necessary steps to
destroy or erase all Licensed Software codes, programs and other proprietary
information before disposing of any media containing the Licensed Software, and
(iv) promptly provide written notice to Licensor if Licensee’s usage
exceeds the license granted. Upon Licensor’s
reasonable request, but not more frequently than annually without reasonable
cause, Licensee shall furnish Licensor with a statement signed by a director
and/or auditor, as required by Licensor, verifying the above and shall permit Licensor to audit the use of the Licensed
Software at such times as may be mutually agreed upon. In the event Licensee’s usage exceeds
the license granted, without prejudice to any other rights or remedies Licensor
may have, including without limitation injunctive relief, Licensee agrees to
pay Licensor the then current license and maintenance fees for the use of the
additional licenses. Further, if such
usage exceeds the license granted by more than five percent (5%), Licensee
shall also reimburse Licensor for the reasonable cost of such audit in addition
to other amounts due.
4
DOCUMENTATION. One (1) electronic copy of Licensor’s standard
Documentation, describing Licensor’s recommended use and application of the Licensed
Software, will be furnished free of additional charge to Licensee by Licensor
with the Licensed Software. Printed
copies of any documentation may be available for purchase from Licensor or its
authorized distributors.
5
TERM OF LICENSE. This License Agreement and Licensee’s license
for the Licensed Software is perpetual, unless a subscription/term license has
been purchased by Licensee, and is subject to earlier termination as provided
in this Section 5. Licensor may
terminate this License Agreement and Licensee’s license to the Licensed
Software immediately by giving Licensee written notice of termination in the
event that either (i) Licensee breaches any term or condition of this License
Agreement and Licensee has failed to remedy such breach within ten (10) days of
the date of notice from Licensor to Licensee or (ii) Licensee is wound up, has a receiver appointed or enters into
liquidation or bankruptcy or analogous process or processes in Licensee’s home
country. Termination shall be without prejudice to any other rights or remedies
Licensor may have. Licensee may
at any time terminate this License Agreement voluntarily by giving written
notice of termination to Licensor. In
the event of any termination Licensee will have no right to keep or use the Licensed
Software or any copy of the Licensed Software for any purpose and Licensee shall destroy and erase all copies of
such Licensed Software in its possession or control, and forward written
certification to Licensor that all such copies of Licensed Software have been
destroyed or erased.
6
MAINTENANCE. Where Licensee purchases maintenance
services, Licensee’s initial maintenance term will begin upon delivery to
Licensee of the Licensed Software and continue for one (1) year thereafter
unless otherwise specified in the applicable annual maintenance agreement or in
the Product Order, or earlier if the license is terminated. Where Licensee purchases maintenance
for any Licensed Software product licensed hereunder, Licensee hereby agrees
that it shall purchase such support services for all of Licensee’s licensed
copies of such Licensed Software product on the relevant computer platform. Maintenance services provided by Licensor
will be subject to Licensor’s then current applicable annual maintenance
agreement unless otherwise agreed by the parties in writing.
7
LIMITED WARRANTY. Licensor warrants for a period of ninety (90)
days from delivery to Licensee (“Warranty Period”) (i) that the media on which
the Licensed Software is supplied is free from defects in materials or
workmanship under normal use and (ii) that the copy of the Licensed Software
delivered to Licensee conforms in all material respects to the
Documentation. As the sole and exclusive
remedy for not meeting part (i) of the above warranty, Licensor’s sole
obligation shall be to repair or replace free of charge any defective media on
which the Licensed Software is delivered if the media is returned to Licensor
by Licensee during the Warranty Period. As the sole and exclusive remedy for
not meeting part (ii) of the above warranty, Licensor shall repair or replace
the Licensed Software free of charge or if Licensor reasonably determines that
such remedy is not economically or technically feasible, Licensee shall be
entitled to a full refund of the license fee and any maintenance fee paid by
Licensee with respect to that particular Licensed Software and Licensee’s
license to use such Licensed Software will terminate. The
warranty set forth in this Section 7 shall not apply if the defect in the
Licensed Software is the result of: (a) the Licensed Software not being used in
accordance with the Documentation, this License Agreement or with the
platform(s) for which the Licensed Software has been designed and licensed by
Licensor; or (b) the Licensed Software having been altered, modified or
converted by Licensee or any third party except as may be specified in the
Documentation; or (c) the malfunctioning of Licensee’s equipment; or (d) accident
or abuse; or (e) service by any unauthorized person; or (f) other software used
by Licensee which has not been provided by Licensor or for which the Licensed
Software is not designed and licensed for operation; or (g) Third Party
Software, as defined below; or (h) any other cause occurring after initial
delivery of the media to Licensee unless caused directly by Licensor. The foregoing states the complete and entire
remedies that Licensee has under this warranty.
Licensor shall have no responsibility for any warranty claims made
outside of the Warranty Period.
8
DISCLAIMER OF
WARRANTY. The Licensed Software cannot be
tested in every possible operating environment, therefore Licensor does not
warrant that the functions contained in the Licensed Software will meet
Licensee’s requirements, that operation of the Licensed Software will be
uninterrupted, or that the Licensed Software is error free. EXCEPT AS
SET FORTH HEREIN AND TO THE EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXCLUDED on the part of Licensor and its third-party suppliers. Licensee acknowledges that Licensee is responsible
for the selection of the Licensed Software to achieve Licensee’s intended
results and for the installation of, use of and results obtained from the Licensed
Software.
9
LIMITATION OF
LIABILITY. ANY LIABILITY OF LICENSOR SHALL
BE LIMITED IN THE AGGREGATE TO THE AMOUNTS PAID BY LICENSEE FOR THE LICENSED
SOFTWARE. THIS LIMITATION APPLIES TO ALL
CAUSES OF ACTION, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF
WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. THE LIMITATIONS OF LIABILITY DESCRIBED IN
THIS SECTION 9 ALSO APPLY TO LICENSOR’S THIRD-PARTY SUPPLIERS. Licensor’S
AND ITS THIRD-PARTY SUPPLIERS’ LIMITATIONS OF LIABILITY ARE NOT
CUMULATIVE. Licensee’s remedies in this License Agreement are Licensee’s exclusive
remedies.
NEITHER LICENSOR NOR ANY OF
ITS THIRD-PARTY SUPPLIERS SHALL BE LIABLE FOR ANY INJURY, LOSS OR DAMAGE,
WHETHER INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL NOR FOR ANY LOST
PROFITS, CONTRACTS, LOSS OF DATA OR PROGRAMS, OR THE COST OF RECOVERING SUCH
DATA OR PROGRAMS, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN
ADVANCE.
NEITHER THIS LICENSE
AGREEMENT NOR ANYTHING IN THIS SECTION 9 SHALL PURPORT TO EXCLUDE OR RESTRICT
THE LIABILITY OF Licensor OR ITS
THIRD-PARTY SUPPLIERS TO ANY EXTENT NOT PERMITTED BY LAW.
10
HIGH-RISK USES. The Licensed Software is not fault tolerant,
nor designed, manufactured or intended for use in hazardous environments
requiring fail-safe performance (including, without limitation, the operation
of nuclear facilities, aircraft navigation or communication systems, air
traffic control, direct life support machines, or weapons systems) in which
failure of the Licensed Software could lead directly or indirectly to death,
personal injury or severe physical or environmental damage. Licensor and its suppliers specifically
disclaim any express or implied warranty of fitness for a particular purpose
and shall have no liability for any use of the Licensed Software in any
high-risk situations.
11
OWNERSHIP. Licensor (or its affiliates) and where
applicable Licensor’s third party suppliers have and will retain all ownership
rights to the Licensed Software, together with any complete or partial copies
thereof. Such ownership rights include without limitation all patent rights,
copyrights, trademarks, trade secrets, service marks, related goodwill, and
confidential and proprietary information relating thereto. This License Agreement does not convey any
proprietary interest to Licensee with respect to the Licensed Software other
than the license specified herein. Where
the Licensed Software provided under this License Agreement contains or is
derived from portions of materials provided by a third-party supplier under license
to Licensor, Licensor has assumed responsibility for the selection of such
materials and their use in producing the Licensed Software and any such
third-party suppliers are intended beneficiaries of this License
Agreement.
12
NOTICE TO U.S.
GOVERNMENT END USERS. The
Licensed Software is provided to the United States Government with RESTRICTED
RIGHTS and its supporting documentation is provided with LIMITED RIGHTS. Use, duplication, or disclosure by the United
States Government is subject to the restrictions as set forth in FAR52.227-14
and DFAR252.227-7013 et seq. or the successor as appropriate. Manufacturer is Micro Focus (US), Inc., 9420
Key West Drive, Rockville, MD 20850 as
or on behalf of Licensor.
13
LICENSE FEES,
PAYMENT, AND TERMS. Licensee agrees to pay the
applicable end user license fees for the Licensed Software within thirty (30)
days of the date of invoice or such earlier date as is specified in the Product
Order. End user license fees are
non-refundable except as provided in Section 7 above, or in the Specific
Software Terms below, and shall be paid without deduction, including without
limitation, of any withholding tax. End
user license fees are exclusive of any applicable transportation charges, value
added and other applicable taxes and duties and all such amounts shall be paid
or reimbursed by Licensee. Late payments shall accrue interest at the rate of
1.5% per month compounded or, if lower, the maximum rate allowed by law.
14
RELATED SERVICES. Licensee
shall be responsible for obtaining and installing all proper hardware and
support software (including operating systems) and for proper installation and
implementation of and training concerning the Licensed Software. In the event that Licensee retains Licensor
to perform any services with respect to the Licensed Software (for example:
installation, implementation, maintenance,
consulting and/or training services), Licensee and Licensor agree that such
services shall be subject to Licensor’s then current standard terms, conditions
and rates for such services unless otherwise agreed in writing by Licensor.
15
THIRD PARTY
SOFTWARE AND COMPONENTS. The Licensed
Software may contain certain named third party software programs that Licensee
shall license directly from the third party subject to such third party’s terms
and conditions (for example Adobe Acrobat or Microsoft Internet Explorer)
(“Third Party Software”). All Third Party Software is provided by the
licensor of the Third Party Software and solely under such third party’s terms
and conditions and not by Licensor.
Therefore the obligations, duties and rights of Licensor and Licensee
under this License Agreement do not apply to such Third Party Software. Additionally, Licensor has embedded
certain run time or other elements provided by third party suppliers to Licensor
(“Third Party Components”). Such Third Party Components may also be loaded on
the Licensed Software media. Third Party Components are licensed to Licensee
pursuant to this License Agreement. Licensee
may only access Third Party Components of the Licensed Software in the course
of using the Licensed Software. Licensee
may not make or attempt any direct access to any such Third Party Components other
than with the Licensed Software. The Third-Party Software is the property of its respective third
party supplier to Licensor. Such third
party suppliers own all copies of the Third-Party Software, however made. Licensee
agrees not to contest the ownership of the Third Party Components nor use any
trademark or service mark belonging to such third party suppliers. All
limitations, restrictions and obligations applicable to the Licensed Software
set forth in this License Agreement shall apply to Licensee’s use of the Third Party
Components. Licensee agrees that such
third party suppliers are intended third party beneficiaries of all terms and
conditions of this License Agreement intended to protect intellectual property
rights in the Licensed Software (including the Third Party Components) and
limit certain uses thereof.
16
PRIVACY. The Licensed Software may contain features
which may allow Licensee to collect data from, control and/or monitor computers
running the Licensed Software deployed by Licensee without notice to or
knowledge by users of the Licensed Software.
Licensee is solely responsible for, and assumes all liability with
respect to, the collection of data with respect to its users of the Licensed
Software including, without limitation, notifying such users and complying with
all data collection, privacy and other regulations, laws, industry standards
and rights of others applicable to any such activity. Licensee shall indemnify and hold Licensor
harmless from and against any damages, claims, losses, settlements, attorneys'
fees, legal fees and court costs and other expenses related to any such
activities or any claims in connection therewith. To the extent permitted by law, by entering
into this License Agreement, Licensee hereby expressly consents to (i) Licensor
sending information to Licensee from time to time advertising the various
products that Licensor provides, whether or not such products are provided
under this License Agreement; (ii) the use of Licensee’s name in Licensor
customer lists, promotional materials and/or press releases; and (iii) the
collection and use by Licensor of information about the computer
system on which the Licensed Software is installed (e.g. product version,
serial number) for internal security and
licensing purposes; Licensor does not use this information to identify
individuals utilizing such software.
17 MISCELLANEOUS. Licensor may assign this License Agreement to any member of Licensor’s group of companies or to a purchaser of the intellectual property rights in the Licensed Software, but otherwise neither this License Agreement nor any rights hereunder may be assigned (any change of control merger, sale or other transfer of all, or substantially all, of the assets of Licensee shall be included in the meaning of an assignment) nor duties delegated by either party, and any attempt to do so will be void. If Licensee acquires the Licensed Software in North America, the laws of the state of Maryland govern this License Agreement and it shall be subject to the exclusive jurisdiction of the courts of the State of Maryland. If Licensee acquires the Licensed Software in France, Germany or Japan, this License Agreement is governed by the laws of the country in which Licensee acquired the Licensed Software. In the rest of the world the laws of England govern this License Agreement. The aforesaid applicable law shall apply without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Other than for North American transactions, this License Agreement shall be subject to the exclusive jurisdiction of the courts of the country determining the applicable law as aforesaid. This License Agreement is in addition expressly made subject to any United States, United Kingdom or European Union laws, regulations and other restrictions regarding export or re-export of computer software and technology. Licensee agrees not to export or re-export any Licensed Software or derivative thereof in contradiction to any such applicable restriction. Except for the Product Order, this License Agreement is the complete and exclusive statement of agreement between the parties relating to the license for the Licensed Software and supersedes all proposals, communications, purchase orders, and prior agreements, verbal or written, including without limitation prior end user license agreements in relation to the Licensed Software between the parties and end user license agreements embedded in such Licensed Software. Upon Licensee’s properly authorized installation of any update and/or upgrade of any Licensed Software licensed hereunder, the license granted to such prior version and/or release shall terminate after a ninety (90) day transition period from such installation and only the license to such updated and/or upgraded Licensed Software shall continue. No employee, agent, or representative of Licensor has the authority to bind Licensor to any oral representation or warranty concerning the Licensed Software. No representation or statement not expressly contained in this License Agreement nor any supplement, modification, or amendment of this License Agreement will be binding on either party unless executed in writing by a duly authorized representative of each party to this License Agreement.
ANNEX 1
A. LICENSE OPTIONS FOR THE FOLLOWING SOFTWARE
PRODUCTS:
All Micro Focus
Application Development and Application Deployment products, including Net
Express®, Net Express® with .NET, Net
Express® for Eclipse, Server ExpressTM,
Server ExpressTM for
Eclipse, Micro Focus StudioTM Enterprise
Edition, Micro Focus StudioTM for
COBOL Developers, Micro Focus Studio
TM for ISVs, SOA
Express, Micro Focus ServerTM Enterprise Edition, Micro Focus Server TM for COBOL, Micro Focus ServerTM for .NET, Micro Focus Server TM for
SOA, Extend®, Relativity®, RM/COBOL®, Open PL/I, Open PL/I SQL, Open PL/I Run
Time, ReUzeDeveloper, ReUze Server, XDBC, Database Connectors and Xcentrisity® including portions
thereof, other products within the same product families and other Software
Products where indicated by Licensor.
1. Development
License Options
(a) Named User License. Licensed Software
provided under this License Option gives Licensee the right to install the
Licensed Software on either (i) a single machine which may be accessed by the named
end users for those licenses or (ii) on a single host machine or server (“Host
Server”) which may be accessed by any of the named end users licensed. A Named User License means that only one
named person can use each license and that named person has the right to
unlimited access to the Licensed Software.
A Named User License is not based on concurrent users, but instead on an
actual named user basis. Licensor
reserves the right at any time to require Licensee to provide a list of the
named end users. Licensee may change a named end user provided that the change
is made either permanently away from the named end user or temporarily to
accommodate the use of the Licensed Software by a temporary worker while the
named end user is absent, but in no event more than once every 30 days.
(b) Lines of Code License. Licensed Software
provided under the Lines of Code license option requires, as a condition of
use, that Licensee use a usage counter containing a credit for the number of
lines of code that Licensee has purchased (“Usage Counter”). Licensee shall have sole responsibility for
installing, configuring, and administering the Usage Counter. The Usage Counter will allow Licensee to
create metering control files in order to track the number of lines of code
which Licensee has purchased and which Licensee accesses. Licensee hereby
acknowledges and agrees that unless Licensee can demonstrate to Licensor’s satisfaction
that the Usage Counter was faulty on delivery to Licensee, Licensee is solely
responsible for any lost, damaged, corrupted, destroyed, inaccurate or
improperly used metering control files or metering transaction files, and in
any such circumstance, may be required to pay an additional license fee on a
line of code basis for lines of code which may have been already accessed and
recorded using the Usage Counter. Each line
of code which Licensee has accessed using the Licensed Software and which has
been properly recorded using the Usage Counter may be re-accessed without the
need to pay an additional license fee.
However, if Licensee creates an additional line of code by updating a
line of code source member which has already been accessed and metered by the Licensed
Software, then Licensee will need to pay an additional license fee to access
such additional line of code using the Licensed Software. Upon exhaustion of prepaid license fees,
however, Licensee must purchase more lines of code in order to continue to use
the Licensed Software on lines of code not yet accessed by the Licensed
Software and properly recorded using the Usage Counter. Any prepaid license fees are non-cancellable
and non-refundable.
2. Deployment
License Options
(a) User
License for Authorized Users. Licensed Software provided under this License
Option gives Licensee the right to install the Licensed Software on unlimited
Host Servers for use by the total number of named individuals for whom Licensee
has paid the applicable license fee. The Licensed Software may not be used or
accessed by (a) individuals who are not named individuals; or (b) any other
software or hardware device that does not require a named individual to use or
access it. A named individual means an individual identified by Licensee by
name who is authorized to use any device or other software program that may
access the Licensed Software, either directly or indirectly through any other
software program, regardless of how such access occurs or if such individual
uses any hardware or software that reduces the apparent number of users who are
using the Licensed Software, such as by using a terminal service. The Licensed
Software may not be used or accessed by any other software or hardware device
that does not require an individual to use or access it including, without
limitation, batch processing (as defined in subsection (b)(ii) below). Licensor
reserves the right at any time to require Licensee to provide a list of the
named individual(s). Licensee may change a named individual provided that the
change is made either permanently away from the named individual or temporarily
to accommodate the use of the Licensed Software by a temporary worker while the
named individual is absent, but in no event more than once every 30 days.
(b) Server
License. There are two options for server-based
licenses.
(i) Server
License for Concurrent Users. Licensed Software provided under this License
Option gives Licensee the right to install the Licensed Software on the
designated Host Server specified in the Product Order for use by the maximum
number of Concurrent Users for whom Licensee has paid the applicable license
fee. Concurrent Users are individuals who are actively using any device or
other software program that may access the Licensed Software either directly,
or indirectly through any other software program, regardless of how such access
occurs or if such user uses any hardware or software that reduces the apparent
number of users who are using the Licensed Software, such as by using a
terminal service. The Licensed Software may not be used or accessed by any
other software or hardware device that does not require an individual to use or
access it including, without limitation, batch processing (as defined in
subsection (b)(ii) below). Licensee may change the designated Host Server to an
equivalent Host Server for which Licensee has paid the applicable license fee.
Licensee may only use the Licensed Software on or access the Licensed Software
from one Host Server at any one time. Subject to the prior written consent of
Licensor and to payment of additional license fees, Licensee may permit the
public and/or Licensee’ customers to access and use the Licensed Software via
the internet and/or Licensee’ terminals in connection with Licensee’ internal
business purposes (for example to access internet banking from Licensee) but
not for the public’ and/or Licensee’ customers’ own internal use.
(ii) Server
License for CPUs. Licensed Software provided under this License Option gives
Licensee the right to install the Licensed Software on the designated Host
Server specified in the Product Order and have the Licensed Software executed
by up to the total number of Cores and other processing devices within such
Host Server. The Host Server comprises the entire computer system (i.e.
combined hardware) that will be running the Licensed Software (e.g. all CPUs,
Cores, Blades and other processing devices running an operating system compatible
with that which the Licensed Software is designed for and which are contained
in, and/or can be accessed by, the same computer system, even if one or more of
such CPUs, Cores, Blades or other processing devices are not accessing or
running the Licensed Software). Each Core or other processing device on a
multi-core or multi-processing device requires its own CPU license. For example
a dual core single CPU Host Server will require a 2 CPU license (in the absence
of any Blades or other processing devices). The Licensed Software is for use by
an unlimited number of Licensee’s internal users, other software devices and
hardware devices. A Server License for CPU is the only license authorized for
use or access by Licensee for any batch processing. Batch processing is defined
as the execution of one or more task, transaction or program by a computer
system without the interaction of the end user with the Licensed Software while
such tasks, transactions or programs are being executed by the system. Batch processing includes situations where a
queue of jobs is processed as resources become available and is in contrast to
transaction or interactive processing.
Licensor reserves the right at any time to require Licensee to provide a
specification of the Host Server. Licensee may change the designated Host
Server provided that the total number of CPU and Core licenses required in the
new Host Server does not exceed the total number of CPU and Core licenses
designated in the Product Order. Licensee may only use or access the Licensed
Software from one Host Server at any one time. Licensee is required to purchase
a license for each Host Server that accesses or uses the Licensed Software
either directly or indirectly through any other software program, regardless of
how such access occurs, or if the Host Server, CPU or operator uses any hardware
or software that reduces the apparent number of CPU, Cores, blades or other
processing devices that are using the Licensed Software, such as by using a
terminal service. Subject to the prior
written consent of Licensor and to payment of additional license fees, Licensee
may permit the public and/or Licensee’ customers to access and use the Licensed
Software via the internet and/or Licensee’ terminals in connection with
Licensee’ internal business purposes (for example to access internet banking
from Licensee) but not for the public’ and/or Licensee’ customers’ own internal
use.
3. reUZE
Mainframe Migration Licensing.
Micro Focus reUZE software products may be licensed for
installation and use solely with computer environments which meet the following
criteria, provided Licensee complies with the restrictions set forth in this Subsection
3 in addition to those contained in the License Agreement. The licensing
model in this Subsection 3 is only applicable to the reUZE software
products and is not available for licensees who exceed one or more of the following
limitations: (i) Mainframe Size Limitation: The Micro
Focus reUZE software is expressly limited for use where Licensee’s
entire mainframe estate (the “Licensee Mainframe System”) does not exceed a
collective performance speed of 50 MIPS (million instructions per
second). The Licensee Mainframe System shall include all mainframe systems
owned, leased and/or operated (either by Licensee or a third party) by, or for
the benefit of, Licensee (including but not limited to the system environment
which the applicable application is being migrated from). The collective
performance speed benchmark test shall be a collective measurement of the total
possible performance of all such mainframe system(s). In the event that the
Licensee Mainframe System exceeds a collective performance speed greater than
50 MIPS, Licensee shall not be permitted to utilize the reUZE software product
and must contact Licensor for proper licensing of its computer system(s); (ii) CPU and Core Requirements:
Notwithstanding Subsection 2(b)(ii) of this Annex 1A, a Deployment Product
License option for a Server license for CPU shall be limited by the number of
CPUs instead of the combination of Cores, Blades, CPUs and other processing
devices; and (iii) Application Limitation: The reUZE
software is expressly limited for use by Licensee solely with a specific
application(s). Such application(s) shall be designated in writing in the
Product Order.
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B.
LICENSE OPTIONS FOR THE FOLLOWING SOFTWARE PRODUCTS:
OnWebTM,
RUMBATM, ViewNowTM, Modernization WorkbenchTM,
Analyzer ExpressTM, Analyzer Architect TM, Business Rule
Manager TM, Enterprise View Express TM, Data ExpressTM,
Mainframe Express Enterprise Edition Data ExpressTM, Modernisation
Workbench Data Express®, OPTIMAL
TRACE®, QACENTER®, QADIRECTOR®, QALOAD®,
QARUN®, RECONCILE®, TESTPARTNER®, TRACKRECORD®,
CARS®, TEST FACTORYTM, DEVPARTNER® including portions thereof,
other products within the same product families and other Software Products
where indicated by Licensor.
1. Workstation
License Licensed
Software provided under this License Option gives Licensee the right to install
and use one copy of the Licensed Software on one stand-alone workstation. Licensee may not (i) install the Licensed
Software on any networked workstation (e.g., a server) that allows more than
one user to use a copy of the Licensed Software, or (ii) use the Licensed
Software other than on one stand-alone workstation at a time. Licensee may transfer the Licensed Software
to another stand-alone workstation and reactivate it for use on such other
stand-alone workstation provided that the Licensed Software is removed and all
copies of it are deleted from the stand-alone workstation from which it is
transferred. Such transfers may not be
undertaken more often than once every 30 days.
2. Named User
License Licensed
Software provided under this License Option gives Licensee the right to install
the Licensed Software on either (i) a single machine which may be accessed by
the named end users for those licenses or (ii) on one or more host machines or
servers which may be accessed by any of the named end users licensed. A Named User License means that only one
named person can use each license and that named person has the right to unlimited
access to the Licensed Software. A Named
User License is not based on concurrent users, but instead on an actual named
user basis. Licensor reserves the right at any time to require Licensee to
provide a list of the named end users. Licensee may change a named end user
provided that the change is made either permanently away from the named end
user or temporarily to accommodate the use of the Licensed Software by a
temporary worker while the named end user is absent, but in no event more than
once every 30 days.
3. Volume of Data Licensed Software
provided under this option gives Licensee the right to utilize the Licensed
Software with the volume of data (the number of terabytes) identified in the
Product Order for each of the applicable modules or extensions licensed with
the Licensed Software. Volume of data is
measured as the original volume of Licensee’ production data to be processed
utilizing the Licensed Software before any data reduction process by the Licensed
Software or otherwise has been applied.
The same data source (defined as a database table or a file) and data
may be processed multiple times without counting it more than once towards the
total volume of data processed by the Licensed Software, however any additional
data and/or data sources (that is, new or increased amounts to the original
data source) are counted cumulatively towards such total volume of data number.
4. Concurrent User
License Licensed
Software provided under this License Option gives Licensee the right to install
and use one copy of the Licensed Software on the designated Host Server (as
defined above) specified in the Product Order for use by the maximum number of
Concurrent Users (defined above) for whom Licensee has paid the applicable
license fee. Licensee may connect any
number of workstations to the Host Server; however, the total number of users
who may access and use the Licensed Software at any given time is limited by
the number of Concurrent Users expressly authorized by Licensor in the Product
Order. The total number of Concurrent
Users is one (1), unless Licensor expressly authorized Licensee to connect more
than one Concurrent User.
5. Concurrent Users
with Load Sharing Configuration Licensed Software provided under this License
Option gives Licensee the right to install and use one copy of the Licensed
Software on each server supported by a single load sharing device.
Licensee may connect any number of workstations to the load sharing device and
its connected servers; however, the total number of users who may access and
use the Licensed Software at any given time is limited by the number of
Concurrent Users expressly authorized by Licensor in the Product Order.
The total number of Concurrent Users is one (1), unless Licensor expressly
authorized Licensee to connect more than one Concurrent User.
6. Server Based Thin Client License Licensed Software
provided under this License Option gives Licensee the right to install and use
one copy of the server portion of the Licensed Software on one server. If installation of the server portion of the
Licensed Software requires a thin client component to be installed, Licensee
may install and use one copy of the thin client portion of the Licensed
Software on one workstation per each thin client license that is specified in
the Product Order and for which Licensee has paid the applicable license fee.
7. Processor Capacity License Licensed Software
provided under this License Option gives Licensee the right to install the
Licensed Software on up to the total number of Cores and other processing
devices within each CPU on the designated Host Server specified in the Product
Order. Licensee may install an unlimited
number of copies of the Licensed Software on single-user computers to allow
communication with the designated single Host Server. Licensee may not reinstall or operate the
Licensed Software on multiple host processors without Licensor’s prior written
consent and payment of all applicable fees.
C. LICENSE OPTIONS FOR THE FOLLOWING SOFTWARE
PRODUCTS:
CaliberRMTM,
TeamDefineTM, Together®, StarTeam®, TempoTM,
TeamDemand®, TeamFocusTM, TeamAnalytics®, TeamInspectorTM,
SilkCentral®, Test ManagerTM, SilkTest®,
Silk4JTM, SilkPerformer® including portions thereof, other
products within the same product families and other Software Products where
indicated by Licensor.
Regardless
of the type of license, each copy of the Licensed Software contains (i)
software that provides services on a computer called a server (“Server
Software”) and (ii) software that allows a computer or workstation to access or
utilize the services provided by the Server Software (“Client Software”). For
any type of license acquired, Licensee may install one copy of the Server
Software on a single computer (the computer running the Server Software shall
be referred to as the “Server”). The number of Client Software copies that may
be installed is determined by the type of license acquired as set forth below.
1. Named User A Named User license
means Licensee may allow only one (1) designated person in Licensee’s
organization (“Named User”) to use the Licensed Software per Named User license
purchased (each, a “Named User License”). The foregoing Named User Licenses
shall be for access and use, only by the equivalent number of Named Users
licenses purchased. For each Named User, Licensee may install the Client
Software on up to five (5) computers provided that the Named User is the only
individual permitted to use the Licensed Software.
2. Concurrent User A Concurrent User
License means Licensee may install the Client Software on a reasonable number
of computers or machines, provided that the Licensed Software is used only by
as many concurrent users at any given moment in time as Licensee has purchased
concurrent licenses and provided further that Licensee’s use of the Licensed
Software (both Client Software and Server Software) is only on computers or
machines located in the Territory and accessed only by users physically located
in the Territory. The foregoing license shall be for access and use, only by
the equivalent number of concurrent users for whom Licensee has paid the
applicable license fees. As used in this Section, use or in use means that the
Licensed Software is "in use" on a computer or machine when it is
loaded into random access memory (RAM) of that computer and “access” means the
ability to use, copy or operate the Licensed Software . The Licensed Software
may not be shared or used concurrently on computers or machines located outside
of the Territory or in such a way to enable use or access by users located
outside the Territory. ‘Territory’ means
the geographical area in which the Licensed Software may be used. The use in
the Territory shall be subject to applicable export restrictions. 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
Territory shall be based on the primary business location of the Licensor,
unless otherwise specified in a Product Order. The geographic Territories are:
(i) ‘Americas Territory’ including and limited to those geographical areas
found within the boundaries of North and South America. (ii) ‘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 all the countries which are part of the European Union,
Switzerland, Norway, Jersey, Guernsey, Isle of Man, Iceland, Monaco, Andorra,
Liechtenstein, San Marino, Albania, all the countries of the former Yugoslavia,
Israel, Turkey, countries of the Arab Middle East, all the countries of the former Soviet Union,
Africa, Madagascar, and the Islands of the South Indian Ocean. (iii) ‘Asia Pacific
Territory’ or ‘AsiaPac Territory’ including and limited to those geographical
areas found within the boundaries of Asia and Australia/Pacific including South
Korea, Japan, China, Taiwan, Hong Kong, and Macau India, Maldives, Pakistan,
Myanmar, Nepal, Bhutan, Bangladesh, Thailand, Laos, Cambodia, Vietnam,
Singapore, Malaysia, Indonesia, East Timor, the Philippines, Brunei, Papua New
Guinea, the Pacific Ocean Islands, Australia, and New Zealand.
3. Virtual User (SilkPerformer only) A "Virtual
User" represents a simulation of a particular individual user executing a
transaction or sequence of operations. Virtual Users are further qualified by
class, and may be licensed on either a Node-Locked or Concurrent User basis. If
a Virtual User is licensed on a Node-Locked basis (as provided below) (“Node-Locked
Virtual User License”), that Virtual User may be associated with a
Multi-Machine Controller (“MMC”) component of the Licensed Software only on the
particular system for which the Virtual User is licensed. If a Virtual User is
licensed on a Concurrent User basis (as provided below) (“Concurrent Virtual
User License”), then that Virtual User may be associated with any licensed
instantiation of a MMC at any one time, but during the operation of that
instantiation, may not be associated with any other instantiation of a MMC at
the same time. By way of example; if 50 Virtual Users are licensed on a
Concurrent User basis, Licensee may simultaneously associate all 50 with one
MMC instantiation; or simultaneously may associate 20 with one MMC instantiation
and 30 with a second MMC instantiation; but could not, for example,
simultaneously associate 30 with each of the two MMC instantiations. A
"Web Virtual User" is a Virtual User limited to performing actions in
basic web-based applications making use of the common web protocols set forth
in the accompanying release notes. A "Standard Virtual User" is a
Virtual User that has all of the rights of a Web Virtual User, and that may
additionally make use of certain client-server, database and other protocols as
set forth in the accompanying release notes. A "Premium Virtual User"
is a Virtual User that has all of the rights of a Standard Virtual User, and
that may additionally make use of certain protocols for packaged third-party
applications and complex enterprise technologies as set forth in the
accompanying release notes. Node-Locked
Virtual User Licenses and Concurrent Virtual User Licenses are available for
the MMC or Service Analysis Module (“SAM”) component of the Licensed Software.
A Node Locked Virtual User License means Licensee may use the Licensed Software
in object code form on a production basis on one (1) computer and to permit the
Licensed Software to be used and accessed at any one time by no more than the
number of users indicated in the applicable Product Order (each a "Node
Locked User"). If no number is indicated, the number shall be 1. A Concurrent Virtual User License means the
same as the Concurrent User license option above.
Notes
(i)
Multiplexing software: The use of one or more external tools, including
multiplexors or replicators, to reduce the number of users directly connected
to the Licensed Software shall not exempt Licensee from acquiring licenses for
all users. For example, use of multiplexing or connection pooling software or hardware
to reduce the number of users directly connected to the Licensed Software, the
number of Named Users or Concurrent Users within Licensee’s organization using
the Licensed Software shall be measured as the number of distinct inputs to the
multiplexing or connection pooling front end and Licensee shall purchase the
equivalent number of Named User or Concurrent User Licenses. If Licensee uses
replicator software, Licensee may not use the Licensed Software or share
licenses in any way not explicitly provided for in this License Agreement. (ii) APIs: Any user of any third party application that calls any
Licensed Software application programming interfaces (“Product APIs”) must have
a valid license to connect to the Licensed Software. Licensee shall not, and
shall not allow others, to reverse engineer, decompile, or disassemble the
Product APIs. Commercial distribution of any products that include Product APIs
requires a separate distribution license and such license is not granted by
this License Agreement. (iii)
TeamInspector: TeamInspector is licensed
on a Named User basis only. (iv) Connectors: A license purchased
for this Licensed Software allows use of such software in any quantity solely
in conjunction with TeamAnalytics that is licensed and ordered separately.
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D. LICENSE OPTIONS FOR THE FOLLOWING SOFTWARE
PRODUCTS:
All Application
Middleware products including AppServerTM and VisiBroker®
including portions
thereof, other products within the same product families and other Software
Products where indicated by Licensor.
1. Development License
Options
(a) Named User: For each Named User
License, Licensee may install and execute the Licensed Software on one (1)
computer for use by one (1) person in Licensee’s organization solely to
develop, compile (including byte code compile), and test, in source or object
code form, Licensee’s own application programs and other works
("Works") designed to work with the Licensed Software. Unless
Licensee has purchased a valid Deployment License as described below, Licensee
may not deploy or use the Licensed Software on a production basis. The Licensed
Software contains certain time-out features designed to prevent the Licensed
Software from being deployed in a runtime environment for longer than a
specified period without Deployment License keys. Deployment License keys will
be provided to Licensee at such time as Licensee purchases the requisite
Deployment Licenses. WORKS CREATED USING
THE LICENSED SOFTWARE MAY REQUIRE THE LICENSED SOFTWARE IN ORDER TO RUN.
WITHOUT THE REQUISITE DEPLOYMENT LICENSE KEYS, THE LICENSED SOFTWARE WILL BE
DISABLED AND THOSE WORKS MAY NO LONGER RUN. LICENSEE SHOULD THEREFORE TAKE
PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT.
2. Deployment License
Options
(a) Concurrent User: For each Concurrent User
Deployment License, License may install the Licensed Software, in executable
form only, on a server accessed and used by multiple users over a network, provided
that the Licensed Software is used only by as many concurrent users at any
given moment in time as Licensee has purchased concurrent licenses and provided
further that use of the Licensed Software is only in the Territory and accessed
only by users physically located in the Territory. The foregoing license shall
be for access and use, only by the equivalent number of concurrent users for
whom Licensee has paid the applicable license fees, solely to create, compile
(including byte code compile), test and deploy, in source or object code form, Works.
As used in this Section, use or in use means that the Licensed Software is
"in use" on a computer or machine when it is loaded into random
access memory (RAM) of that computer. The Licensed Software may not be shared
or used concurrently on computers or machines located outside of the Territory
or in such a way to enable use or access by users located outside the
Territory.
(b) Server/CPU: For each Server/CPU
Deployment License Licensee may install and execute the Licensed Software in
object code form on a production basis on one (1) server hardware unit that is
operating the platform designated in the applicable Product Order and that has
no more than the number of CPUs designated in the applicable Product Order and
to permit the Licensed Software as so installed to be accessed at any one time
by an unlimited number of concurrent users. Licensee may not install or execute
the Licensed Software on any type of device that has a greater number of CPUs
and Licensee may not, under a given Server/CPU Deployment License, install or
execute the Licensed Software on more than one (1) computer. Licensee may use
and deploy the Licensed Software either as a Server or as a Client. Use of the Licensed
Software as a "Server" means to manage and control the automated
exchanges of information with one or more remote computers through various
telecommunications channels. Use of the Licensed Software as a
"Client" means to operate the Licensed Software on a computer to
facilitate communications with the Server. The Client shall not act as or
perform the functions of a Server. A
Client may make only a maximum of 10 concurrent call backs. A Client shall not
have POA (Portable Object Adapter) policies with the following values: LifespanPolicyValue.PERSISTENT;
RequestProcessingPolicyValue.USE_SERVANT_MANAGER;
RequestProcessingPolicyValue.USE_DEFAULT_SERVANT
Subject
to these restrictions and limitations and any additional restrictions or
limitations that may appear in the applicable Product Order, Licensee may
install the Client on an unlimited number of computers. Licensee receives no
right to deploy Clients without the purchase of a Server/CPU Deployment
License.
(c) Backup Server
License Option for AppServer and VisiBroker Licensee may install the Licensed Software
on a single backup server and use the Licensed Software in object code form
solely for backup or disaster recovery purposes (“Backup Server License”).
Licensee may not use the Licensed Software on a production basis except during
periods when one or more copies of the Licensed Software for which Licensee has
purchased a Deployment License are nonfunctional, and, in such event, only in
accordance with the terms of the Deployment License.
(d) Standby Server
License Option for AppServer and VisiBroker Licensee may install
the Licensed Software on a single standby server and use the Licensed Software
in object code form solely in a standby, non-production mode for use in the
event the primary server fails (“Standby Server License”). Licensee may not use
the Licensed Software on a production basis under a Standby Server License
except during periods when one or more copies of the Licensed Software for
which Licensee has purchased a Deployment License are nonfunctional, and, in
such event, only in accordance with the terms of the Deployment License.
E. OTHER LICENSE
OPTIONS
1. System Partitioning /LPAR/IFL Licensed Software
may be licensed for installation and use on computer systems which incorporate
logical partitioning (LPAR), and/or Integrated Facility for Linux (“IFL”)
provided such rights have been expressly granted to Licensee by Licensor in
writing and Licensee complies with the restrictions set forth in this
Section. The licensing models in this
Section 1 are only applicable to Server type licenses and are not available for
computer systems where system resources (e.g. Cores/CPUs) may be scaled down or
varied (e.g. “Pay Per Use” or “Pay Per Forecast” models).
(a) Logical Partitioning (LPAR): The licensing requirements of computer
systems (e.g. a Host Server) which incorporate hard and/or soft partitioning
shall have their licensing requirements determined as follows:
(i) Hard Partitioning: Hard partitioning is established by using a
hard physical partition to physically segment a single larger server so that
the Host Server utilizing the Licensed Software is a separate and distinct
smaller system (that is, each separate system acts as a physically independent,
self-contained server with its own CPUs, operating system, separate boot area,
memory, input/output subsystem and network resources). Examples of such hard partitioning include:
Dynamic System Domains (DSD) -- enabled by Dynamic Reconfiguration (DR),
Solaris 10 Containers (capped Containers only), LPAR (adds DLPAR with AIX 5.2),
Micro-Partitions (capped partitions only), vPar, nPar, Integrity Virtual
Machine (capped partitions only), Secure Resource Partitions (capped partitions
only), and Static Hard Partitioning. For
computer systems where hard partitioning has been employed to create the Host
Server being utilized to operate the Licensed Software, such Host Server shall
be licensed pursuant to the terms and conditions set forth in this Section 1 as
if such Host Server where a separate and distinct computer system. For example, where the total computer system
has 8 Cores/CPUs but only 4 Cores/CPUs have been hard portioned to use the
Licensed Software, Licensee shall only be required to license such 4 Cores/CPUs
on such hard partitioned system.
(ii) Soft
Partitioning: Soft partitioning
is established by using the computer systems operating system resource manager
to segment and limit the number of Cores/CPUs where the Licensed Software is
running by creating areas where processor resources are allocated and limited
within the same operating system.
Examples of such soft partitioning include: Solaris 9 Resource Containers,
AIX Workload Manager, HP Process Resource Manager, Affinity Management, Oracle
VM, and VMware. For computer systems
where soft partitioning has been employed to create the Host Server being
utilized to operate the Licensed Software, such Host Server shall be licensed
pursuant to the terms and conditions set forth in this Section 1 as if such
Host Server where a separate and distinct computer system but the Cores/CPU
required to be licensed shall be an “expected” Cores/CPU
number calculated as the ratio of the number of Cores/CPUs soft partitioned as
a percentage of the entire computer system’ Cores/CPUs, increased by ten
percent (10%). For example, on an 8
Core/CPU computer system where soft partitioning has been utilized such that
only 4 Cores/CPUs are allocated to use the Licensed Software, a Server License
fee charge equal to 60% of the total computer system Cores/CPUs would be
required (50%+10% = 60% of an 8 Core/CPU system license fee).
(b) Integrated Facility for Linux (“IFL”): An Integrated Facility for Linux or IFL Host
Server is established by using a dedicated Host Server where the IFL Host
Server is isolated from general use and is only capable of utilizing the Linux
operating system and running Linux applications and cannot run other operating
systems or applications. For IFL Host
Server computer systems being utilized to operate the Licensed Software, such
IFL Host Server shall be licensed pursuant to the terms and conditions set
forth in this Section 1 as if such IFL Host Server were a separate and distinct
computer system. For example, where the
total computer system that has 8 Cores/CPUs but the IFL Host Server is a 4
Cores/CPUs IFL computer system and the IFL system is the only system using the
Licensed Software, Licensee shall only be required to license such 4 Cores/CPUs
on such IFL Host Server system.
(c ) LPAR and IFL Host Server Verification: Licensee
shall provide to Licensor, upon commencement of this License Agreement and at
such other times as Licensor may reasonably request, confirmation that
Licensee’s computer systems comply with the LPAR and/or IFL license
requirements set forth in Subsections 1(a) and (b) above. Such confirmation
shall be signed by a director or officer of Licensee and shall be accompanied
by all information as Licensor reasonably requires to verify that Licensee is
utilizing the Licensed Software in compliance with the terms and conditions of
the License Agreement. The foregoing is in addition to Licensor’s rights under
Section 3 of the License Agreement.
2. Evaluation License Option Licensed Software
provided under this License Option gives Licensee a term license to use the
Licensed Software within Licensee’s organization during the evaluation term
specified in writing by Licensor, solely for evaluation and testing purposes on
a single computer system and not for development, commercial, or production
purposes. Licensee may not reproduce or distribute the Licensed Software.
Licensee’s results of benchmark or other performance tests run on or using the Licensed
Software may not be disclosed to any third party without Licensor’s prior
written consent. At any time during the evaluation term or upon completion
thereof, Licensee may, upon written notification to Licensor and payment of the
applicable license fee, replace the evaluation license with a license to use
the Licensed Software pursuant to one of the other applicable options listed in
Annex1. In the absence of such
notification by Licensee, the evaluation license shall automatically terminate
at the end of the evaluation term and Licensee shall return, or, if Licensor so
directs, delete and destroy all such Licensed Software and provide Licensor
with written confirmation of such deletion and destruction being completed.
Licensor may, in its sole discretion, grant Licensee an extension to the
evaluation term subject to receiving a written request and reasons for such
request from Licensee prior to expiration of the evaluation term. Licensor will
specify any such agreed extension in writing to Licensee. Licensed Software
provided by Licensor free of license fee charge shall be deemed to be provided
pursuant to this Evaluation License Option unless otherwise agreed in writing.
In the absence of any contrary period specified in writing by Licensor, the
evaluation term shall be deemed to be thirty (30) days. In relation to Licensed
Software provided pursuant to this Evaluation License Option, this Section
shall prevail over any contrary provisions set forth in this License Agreement.
3. Test
License Option Licensed
Software provided under this License Option gives Licensee a limited license to
use the Licensed Software solely for Licensee’ internal testing purposes on a
single computer system. At no time may Licensee use the Licensed Software for
development, commercial, or production purposes, nor may Licensee reproduce or
distribute the Licensed Software or any software application programs created
with it. The applicable license fee for this License Option will be determined
by the access or use to be tested. For example, batch process testing will
require the payment of the applicable license fee for a Licensor server license
for CPU. Licensee’ results of benchmark or other performance tests run on or
using the Licensed Software may not be disclosed to any third party without
Licensor’s prior written consent. If
Licensee uses the Test Licenses for any purpose other than for Licensee’
internal testing purposes, the Test License shall terminate automatically and
without notice. Upon such termination,
Licensee may convert the terminated Test License to a standard license type
listed above by paying the applicable conversion fee. In relation to Licensed Software provided
pursuant to this Test License Option, this Section shall prevail over any
contrary provisions set forth in this License Agreement.
ANNEX 2 SPECIFIC SOFTWARE TERMS
The following terms
and conditions apply to the applicable Licensed Software products named below
and supersede any conflicting terms and conditions set forth elsewhere in this
License Agreement:
ALL
VERSIONS OF Net Express®, Server ExpressTM, Micro Focus
StudioTM, Micro Focus ServerTM, Extend®,
Relativity®, RM/COBOL® , ReUZE DEVELOPER, Open PL/I and
Xcentrisity®. For this Licensed
Software Licensee has the option to use the Licensed Software licenses
purchased either (i) for internal development purposes, or (ii) to reproduce
and distribute internally, as both options are described in Annex 1, any
software application program created by Licensee using any such Licensed
Software product, in whole or in part, as a part of Licensee’ own application
software product (“Licensee Application Software”). Where the foregoing option
(ii) is selected it is contingent upon Licensee
(a) including Licensor’s copyright notice for the Licensed Software on
the product label and as a part of the sign-on message for such Licensee
Application Software product; and (b) indemnifying, holding harmless and
defending Licensor and its third-party suppliers from and against any claims or
lawsuits, including attorneys’ fees, legal fees and court costs that arise out
of, or result from, the use or distribution of such Licensee Application
Software. Licensee can only reproduce
and distribute Licensee Application Software to third parties after entering
into a separate distribution agreement with Licensor. Usage and distribution of the Licensed
Software arises both by the explicit distribution of any Licensee Application Software
and by the implicit distribution and usage of any such functionality when
linked into a software application program.
The grant of license for the Licensed Software does not permit Licensee
to either use or reproduce and distribute any files supplied as part of the Licensed
Software in order to create a compiler, interpreter or runtime support
product. Licensor offers specific
production licensing options for distribution to third parties which vary
depending upon the license fees paid by Licensee and Licensee should contact
its Licensor sales representative for more details.
MAINFRAME EXPRESS® ENTERPRISE EDITION.
(i) Where Mainframe Express
Enterprise Edition (all versions and editions including earlier versions such
as Mainframe Express) is the Licensed Software, Mainframe Express Enterprise
Edition may only be used for development purposes. Licensee may not use Mainframe Express
Enterprise Edition for production purposes nor utilize or access any of the Mainframe Access portions of the Licensed
Software from any Licensed Software product licensed separately, unless the Licensor
product, Mainframe Access, has also been
separately licensed from Licensor, in which case, the Mainframe Access product
included as part of Mainframe Express Enterprise Edition may be installed on the number of host (mainframe) machines needed to
support the number of authorized end-users of Mainframe Express Enterprise Edition.
(ii) Where Mainframe
Express Enterprise Edition is the Licensed Software, the Licensed Software will
contain Component Generator. In order to
use the components created using Component Generator, Licensee must pay a
license fee. Upon payment of such
license fee, Licensor grants Licensee a personal, non-exclusive,
non-transferable license to use the components according to the type of license
granted. Licensor has and will retain
all ownership rights to any application source code generated by a template,
wizard or similar functionality, (“Generated Source Code”) supplied as part of
the Component Generator including without limitation all patent rights,
copyrights, trademarks, trade secrets, service marks, related goodwill, and
confidential and proprietary information relating thereto. For the avoidance of doubt, Generated Source
Code does not include Application Server Files.
Licensee shall have and retain all ownership rights to Licensee’s
implementation of the Generated Source Code, provided that nothing in this
Section shall be construed as in any way granting Licensee any right to limit
or prevent: (i) Licensor from licensing any of its existing or future Licensed
Software or providing any of its existing or future services to third parties;
or (ii) Licensor or any other users of the Component Generator from generating
and using identical or similar implementations of Generated Source Code. Licensor grants Licensee a perpetual,
transferable, non-exclusive, royalty-free right to reproduce and distribute the
Generated Source Code in object code form together with any implementation
Licensee make thereto as a part of Licensee’s application of the Licensed
Software product created using the Component Generator and that such Licensee
application of the Licensed Software product adds significant and primary
functionality to the Generated Source Code.
ALL
VERSIONS OF MICRO FOCUS STUDIO, REUZE DEVELOPER AND NET EXPRESS. For this Licensed Software
(i) Redistribution of Internet Shortcut
Support DLL (URL.DLL) in Microsoft Win32 SDK. To obtain rights to distribute file
"URL.DLL" supplied as part of the Microsoft Win32 SDK that may be
included with the Licensed Software, Licensee must print out, sign and return
the Microsoft Win32 SDK End User Licensee Software License Agreement (located
at \license\win32sdk.txt in the Microsoft Win32 SDK) to Microsoft Corporation,
Win32 SDK Program, Building 5-2, One Microsoft Way, Redmond, Washington 98052-6399. URL.DLL may be included as part of a future
version of Windows or Windows NT. Upon
notification by Microsoft of its inclusion of URL.DLL in Windows or Windows NT,
Licensee shall upgrade its application so that it no longer contains URL.DLL, and
within a reasonable period after such time, but no later than six (6) months,
cease distribution of URL.DLL.
(ii) Use of Microsoft Visual Studio
Technology and Visual Studio .NET Premier Partner Edition, including VSIP-SDK
(“VSN Software”). The VSN Software is provided by and governed under the
VSN Software End User License Agreement (“VSN EULA”) enclosed with the Licensed
Software. Licensee must agree to be bound by the VSN EULA before use of the VSN
Software. Licensee shall not use or enable others to use the
information/content of the VSIP-SDK to enable any development environment other
than Visual Studio .NET to host packages that use the interfaces documented in
the VSIP-SDK or use or enable others to develop or distribute extensions to or
wrappers for the VSN Software, or the interfaces between the Licensed Software
and the VSN Software.
ACADEMIC
EDITIONS/USERS. Where Licensed Software is licensed under Licensor’s ACTION Program, in
addition to the above terms and conditions:
(i) Licensee shall not use the Licensed
Software for any purpose other than for education, training or academic
research activities.
(ii) Licensee shall not copy the Licensed
Software, nor shall Licensee distribute, transfer or assign the Licensed
Software without specific permission from Licensor.
(iii) License
management: If Licensee is the academic
institution using the Licensed Software for teaching purposes, Licensee will
manage all student licenses through a license server provided by Licensor in
accordance with guidelines provided by Licensor. Licensee agrees to provide
reports describing the number of licenses Licensee has issued in each period
upon Licensor’s request.
(iv) Where CaliberRMTM, TeamDefineTM, Together®, StarTeam®, TempoTM, TeamDemand®, TeamFocusTM, TeamAnalytics®, TeamInspectorTM, SilkCentral®, Test ManagerTM, SilkTest®, Silk4JTM, SilkPerformer® AppServerTM or VisiBroker is the Licensed Software, the Licensed Software may be used solely for Licensee’s personal use in providing or receiving instruction within the limited scope of guided computer programming and/or software training course(s) in which Licensee is a direct and personal participant, either as student or instructor (“Course(s)”). The Licensed Software may only be used with other participants of the Courses and then only for educational or training purposes. The Licensed Software may not be used for any commercial, business, governmental or institutional purpose of any kind, except to the extent Licensee is an instructor teaching a Course.
NET
EXPRESS PERSONAL EDITION. Where Net Express Personal Edition is the Licensed
Software, in addition to the above terms and conditions:
(i) Licensee shall not to use the Licensed
Software for any purpose other than for personal educational and non-commercial
activities. The Licensed Software may
not be used for training or teaching purposes.
(ii) Licensee shall not use the Licensed
Software to compile source code for applications of more than two thousand, two
hundred (2200) lines of procedural code (exclusive of lines containing comments
and/or blanks) in any one (1) application or to deploy such application to any
other machine.
(iii) Licensee shall not copy the Licensed
Software, nor shall Licensee distribute, transfer or assign the Licensed
Software without specific permission from Licensor
ALL VERSIONS OF
MICRO FOCUS STUDIO, NET EXPRESS, AND SERVER EXPRESS. This Licensed
Software may include or generate limited licenses for Micro Focus Server,
Application Server and/or Enterprise Server.
If such licenses are included or generated, these limited licenses are
provided solely for use by the Named User of the Licensed Software in order to
unit test an application developed with any version of Micro Focus Studio, Net
Express, or Server Express on the server used to develop the application and
may not be used for system testing, production or deployment. Any use of this limited license outside of
the development and unit testing of such applications is outside the scope of
the license.
ALL VERSIONS OF
MICRO FOCUS STUDIO, REVOLVE®
ENTERPRISE EDITION, MAINFRAME EXPRESS, NET EXPRESS, AND MICRO FOCUS LICENSE
SERVER. Licensee may use the Micro Focus License Server that accompanies the Licensed
Software to generate request or access codes for Licensee’s use of the Licensed
Software. Licensee may not use the Micro
Focus License Server to generate multiple-user request of access codes for the Licensed
Software unless Licensee has paid the appropriate license fees for each
authorized user accessing the Licensed Software.
MICRO FOCUS STUDIO FOR COBOL DEVELOPERS AND MICRO FOCUS STUDIO
ENTERPRISE EDITION. Where Micro Focus Studio is the Licensed
Software, Licensee may utilize the Licensed Software on both the Windows
platform and one UNIX platform, which will be designated on the Product
Order. Use of the Licensed Software on a
different UNIX platform than originally licensed or on more than one UNIX
platform will require additional licenses and the payment of applicable license
fees. Licensee may install the Licensed
Software on more than one machine or Host Server, so long as the Licensed
Software is only used by the same named user on each machine or Host Server.
MICRO FOCUS REVOLVE ENTERPRISE EDITION. Where Micro Focus Revolve Enterprise Edition is the Licensed Software,
Licensee may only utilize the Licensed Software for its own internal benefit
and may not use the Licensed Software to process third-party code or to
generate reports to be delivered to a third-party for that third party’s
benefit without first entering into a separate agreement with Licensor.
MICRO FOCUS DATA EXPRESS™.
Where Micro Focus Data Express is the Licensed
Software Licensee may utilize both the Data Subset Extraction and the Data
Masking modules, however, Licensee may only use other modules that are
expressly listed in the relevant Product Order and for which Licensee has paid
the separate relevant license fee.
MICRO
FOCUS ENTERPRISE VIEWTM.
Where Micro Focus Enterprise View is the Licensed Software, Licensee may
only use those additional modules that are listed in the Product Order and for
which Licensee has paid a separate license fee.
Where a Micro Focus Enterprise View module has language-specific
capability, any licensed languages shall be listed in the Product Order. Support for additional languages is subject
to an additional license fee.
MICRO
FOCUS ENTERPRISE VIEW - RAPID ASSESSMENT OPTION. Micro Focus Enterprise
View – Rapid Assessment Option is provided to Licensee on a fixed term license
basis only. The start and ending dates
of the term will be set forth in the Product Order. Unless otherwise stated in the Product Order,
Micro Focus Enterprise View – Rapid Assessment Option is licensed on a “Line of
Code” basis.
MODERNIZATION
WORKBENCH SOFTWARE DEVELOPMENT KIT. This Licensed Software may only be utilized
for the purpose of creating applications designed to operate with Modernization
Workbench. The SDK does not contain any redistributable code and Licensee is
not permitted to distribute any part of the SDK. No support is provided for the SDK.
XCENTRISITY
BUSINESS INFORMATION SERVER. This
Licensed Software is licensed on a concurrent user basis for local area network
usage (“LAN”) or wide area network usage (“WAN”). A LAN license may only be installed and used
on one server, whereas a WAN license may be installed and used on any number of
servers, both subject to the number of concurrent users licensed.
OPTIMAL
TRACE, QACENTER, QADIRECTOR, QALOAD, QARUN, RECONCILE, TESTPARTNER,
TRACKRECORD, CARS, TEST FACTORY, DEVPARTNER. This Licensed
Software may include technology for monitoring authorized use, including the
policy files and license keys required to use the Licensed Software (the
“License Authorization Server” or “LAS”).
The LAS may be installed on a single-specified computer system at the
specific site for which Licensee has contracted (the “Designated System”). The
LAS, or any part thereof, may not be transferred from the Designated System.
Regardless of the installation of the LAS, Licensee must remain compliant with
the terms in this License Agreement (including without limitation any license
restrictions and number of users permitted pursuant to this License Agreement). The LAS cannot be used or installed on a
Virtual Machine.
Licensee may not transfer, ship or use this Licensed
Software outside the country in which it was originally licensed to Licensee. Only one copy of the Licensed Software may be
installed on a single computer at any one time unless: (A)The Software is
designed and intended by Licensor for use in a shared network client server
environment, as set forth in the Documentation; or (B) Licensee has purchased a
license for each individual user of the Licensed Software and/or for each
computer that will have access to the Software. Except for Optimal Trace
Enterprise Edition, in the event the Software is designed and intended by Licensor
for use in a shared network client server environment, Licensee may only
install the Software on a single server.
The following shall only apply if the Licensed
Software is device driver development software, used by Licensee to develop
application or device driver programs (“User Software”), as specified in the
Documentation. The User Software may include run-time components (“RTCs”) that
have been extracted by the Software from the library files of the Software,
programs to remotely test the User Software, and compiled code examples. These
RTCs, examples, and programs are specifically designated as redistributable in
the Documentation. Licensee has a worldwide, non-exclusive, royalty-free,
restricted license to: (A) modify, compile and distribute the driver code
examples; (B) distribute the remote testing program for testing purposes only;
(C) embed the RTCs and driver code examples in its User Software, in object
code form only; and (D) reproduce and distribute the RTCs and driver code
examples embedded in its User Software, in object code form only provided that
with respect to each of (A) – (D) inclusive (i) Licensee distributes the RTCs
and driver code examples only in conjunction with and as a part of its User
Software; (ii) Licensee will be solely responsible to anyone receiving its User
Software for any updates, technical and other support obligations, and any
other liability which may arise from the distribution of its User Software;
(iii) Licensee does not use Licensor’s or its licensors' names, logos, or
trademarks to market or distribute its User Software; (iv) Licensee includes Licensor’s
and its licensors' copyright and/or proprietary notices and legends within the
executable images of its User Software and on Licensee's software media and
documentation; and (v) Licensee agrees to indemnify, hold harmless and defend Licensor
and its licensors from and against any claims or lawsuits, including attorneys’
fees, that arise or result from the use or distribution of its User Software.
OPTIMAL
TRACE, QACENTER, QADIRECTOR, QALOAD, QARUN, QUALITY MANAGER, RECONCILE,
TESTPARTNER, TRACKRECORD, TEST FACTORY, DEVPARTNER. This Licensed
Software may be used in a Virtual Machine only where licensed for concurrent
users. In addition this Licensed
Software may be used on any operating system on which the Licensed Software is
capable of operating and which is supported by Licensor.
QALOAD. This Licensed Software may be
licensed on a Virtual User basis. A
"Virtual User" represents a simulation of a particular individual
user executing a transaction or sequence of operations. QALoad Virtual users
are pooled for use by the total number of licensed QALoad Conductors and one or
more licensed QALoad Conductors may use some or all licensed Virtual Users.
Virtual Users may be used across all support protocols (Easyscripts).
SILKCENTRAL, TEST
MANAGER, SILKTEST, SILK4J, SILKPERFORMER This Licensed Software may include technology
for monitoring authorized use, including the policy files and license keys
required to use the Licensed Software (the “License Authorization Server” or
“LAS”). The LAS may be installed on a
single-specified computer system at the specific site for which Licensee has
contracted (the “Designated System”). The LAS, or any part thereof, may not be
transferred from the Designated System. Regardless of the installation of the LAS,
Licensee must remain compliant with the terms in this License Agreement
(including without limitation any license restrictions and number of users
permitted pursuant to this License Agreement).
The LAS cannot be used or installed on a Virtual Machine.
SILK
PERFORMER.
This Licensed Software may be installed on a reasonable number of Licensee
computer systems. Licensee may use the Multi-Machine Controller (also referred
to as “Workbench”) (“MMC”) component and related load-test agents on an
unlimited number of machines for an unlimited number of users, but solely in
connection with the use of SilkPerformer in accordance with the number, type
and class of Virtual User Licenses purchased.
Premium Virtual User Licenses for SilkPerformer, when ordered in any
quantity, include a single Named User limited license to use SilkTest (the
“Additional Product”). The Additional Product may be used ONLY in conjunction
with the Premium Virtual User Licenses of SilkPerformer and may not be used or
transferred on a stand-alone basis. Incremental use of any Additional Product
beyond the single Named User license, or stand-alone use, must be licensed and
paid for separately.
TEAMANALYTICS 2008. This Licensed Software includes a single
Named User limited license to use StarTeam (either StarTeam Enterprise 2006,
StarTeam Enterprise Advantage 2006, StarTeam Enterprise 2008 or StarTeam
Enterprise Advantage 2008), CaliberRM (either CaliberRM 2006 or CaliberRM 2008)
and SilkCentral Test Manager (either SilkCentral Test Manager 2006 or
SilkCentral Test Manager 2008) (the “Additional Products”). The Additional
Products may be used only in conjunction with the TeamAnalytics 2008 product
and may not be used or transferred on a stand-alone basis. Incremental use of
any Additional Products beyond the single Named User license, or stand-alone
use, must be licensed and paid for separately.
TEAMANALYTICS 2009. This Licensed Software includes a single
Named User limited license to use StarTeam, CaliberRM and SilkCentral Test
Manager (collectively, the “Additional Products”). The Additional Products may
be used ONLY in conjunction with the TeamAnalytics 2009 and may not be used or
transferred on a stand-alone basis. Incremental use of any Additional Products
beyond the single Named User license, or stand-alone use, must be licensed and
paid for separately.
TOGETHER. This
Licensed Software may be used solely to create, compile (including byte code
compile), test and deploy, in source or object code form, Licensee application
programs and other works. This
Licensed Software requires registration with Licensor prior to use. Licensee
will be prompted to register at the time of installation or first use, at which
time Licensee will be notified, or directed to online resources explaining, how
registration information provided by Licensee may be used and Licensee will be
afforded the opportunity to opt out of certain uses of such information. Licensee may use the License Manager
component of the Licensed Software, in executable form only, on a server for
use solely in connection with Licensee’s use of the Licensed Software.
TEAMDEFINE. This
Licensed Software includes the capability for an unlimited number of users to
review the simulation program integrated into the Licensed Software by Licensor
or its suppliers. Such users may not otherwise use the Licensed Software. Where an evaluation license option is
obtained for this Licensed Software pursuant to Annex 1.E.2 the evaluation
period will continue for up to 365 days. During the first 30 days of the
evaluation period Licensee will be able to access all functionality of this
Licensed Software except “Project Export”. During the remaining evaluation
period such functionality will continue except that Licensee will have read
only access to “simulations”, “requirements”, “SDK”, “integrations”, “images”
and “templates”. Licensee may purchase a full license for this Licensed
Software at any time during the evaluation period.
SILKCENTRAL, TEST
MANAGER, SILKTEST, SILK4J, SILKPERFORMER, TEAMDEFINE, CALIBER™, TOGETHER,
STARTEAM, TEMPO, TEAMDEMAND, TEAMFOCUS, TEAMANALYTICS, TEAMINSPECTOR, APPSERVER,
VISIBROKER. This Licensed Software may be used in a Virtual
Machine only
where a concurrent user license has been granted
APPSERVER,
VISIBROKER.
For this Licensed Software, regardless of the number of CPU's for which
Licensee has purchased a Deployment License: (i) Licensee may not run more than
one instance of the deployed Licensed Software on a single computer, and (ii)
the Licensed Software may not be accessed at any one time by more than the
number of Concurrent Users indicated in the applicable Product Order. In the
event Licensee desire additional instances or additional Concurrent Users,
Licensee must purchase a separate license applicable to a different computer.
APPLICATION
MIDDLEWARE PRODUCTS. Licensee may not
include this Licensed Software or any component thereof in any general-purpose
software development tool, library, component, or any other product that is
generally competitive with or a substitute for the Licensed Software or any
other Licensor product offerings; nor may Licensee use the Licensed Software to
create a product or operate a service that is generally competitive with the
Licensed Software or any other Licensor product offerings, including any
general-purpose software development tool. The foregoing restriction does not
apply, however, to use of the Licensed Software to develop "plug-ins"
(i.e., integrations created using the Licensed Software's open tools API) so
long as such plug-ins are designed to provide supplementary functionality to
the Licensed Software.
This Licensed Software is not
redistributable. Licensee is not permitted to reproduce the Licensed Software
for sublicensing, resale, lending, leasing, deployment or distribution to any
party, including without limitation, distributing the Licensed Software as part
of a VAR, OEM, distributor or reseller arrangement. If Licensee integrates the
Licensed Software into a Work and intends to distribute or resell the resulting
integrated Work, Licensee must contact Licensor to obtain the appropriate
distribution license.
The portions of this Licensed Software
identified as VISISECURE, VISITRANSACT,
VISINOTIFY, VISITIME and VISITELCOLOG (collectively, the "
VISISERVICES") are not redistributable. This License Agreement does not
permit Licensee to execute, or otherwise use the VISISERVICES portion of the Licensed Software
for any purpose unless Licensee has acquired a separate Development and/or
Deployment License for VISISERVICES
directly from Licensor before developing or deploying any Work that uses such
portion of the Licensed Software. Licensee is not permitted to reproduce VISISERVICES for sublicensing, resale,
lending, leasing, deployment or distribution to any party, including without
limitation, distributing VISISERVICES as part of a VAR, OEM, distributor or
reseller arrangement. If Licensee integrates
VISISERVICES into a Work and intends to distribute or resell the
resulting integrated Work, Licensee must contact Licensor to obtain the
appropriate distribution license.
Notwithstanding the prohibition hereunder
against decompiling this Licensed Software, Licensee may use that portion of
the Licensed Software identified as "API Decompiler" for inspecting
the public application programming interface (API) of the JAVA BEANS COMPONENT
LIBRARY, DATAEXPRESS, DBSWING and OPENTOOLS API modules.
The following Java Technology Restrictions
are applicable to the component of this Licensed Software identified as SonicMQ
if it accompanies the Licensed Software: Licensee may not modify the Java
Platform Interface ("JPI", identified as classes contained within the
"java" package or any subpackages of the "java" package),
by creating additional classes within the JPI or otherwise causing the addition
to or modification of the classes in the JPI. In the event that Licensee
otherwise create an additional class and associated API(s) which (i) extends
the functionality of a Java platform, and (ii) is exposed to third party
software developers for the purpose of developing additional software which
invokes such additional API, Licensee must promptly publish broadly an accurate
specification for such API for free use by all developers. Licensee may not
create, or authorize its own licensees to create additional classes,
interfaces, or subpackages that are in any way identified as "java",
"javax", "sun" or similar convention as specified by sun in
any class file naming convention.
This Licensed Software may include certain
files, libraries and/or source code specifically designated as “redistributables"
by Licensor in the accompanying printed or on-line documentation and that are
necessary to use works created using the Product
("Redistributables"). From time to time, Licensor may designate other
files as Redistributables. Subject to the terms and conditions of this License
Agreement, Licensee may freely redistribute source code or compiled code that
is entirely Licensee’s own and does not contain any Redistributables. Subject
to the terms and conditions of this License Agreement, Licensor grants Licensee
the personal, non-exclusive, non-transferable and limited license to: (a) make
exact copies of the Redistributables and distribute those copies solely as
components of Licensee’s Works and solely as required for permitting end users
of the Works ('End users") to install and execute the Works; (b) install
and execute Redistributables, without modification, solely for Licensee’s own
internal use; and (c) sublicense to End Users the personal, non-exclusive,
non-transferable right to install and execute Redistributables, without
modification, solely as components of Works and solely for such End Users' own
internal use, subject to End Users' compliance with the restrictions in this
License Agreement. These rights granted may not be exercised by others,
including co-developers, regardless of how Licensee’s Works are compiled, linked,
or packaged. These rights apply only to Redistributables and to no other file,
library, source code or other component or derivative work of the Licensed
Software. They may be exercised only with respect to works created by Licensee
using a duly licensed, properly registered copy of the Licensed Software.
ENDS
END USER LICENSE AGREEMENT SUPPLEMENT
The following terms and conditions shall supersede any conflicting terms
and conditions set forth elsewhere in the End User License Agreement:
Where Licensor has expressly granted to
Licensee the right to install and use the Licensed Software on a soft
partition, the license fee shall be based on an “expected” Cores number calculated as the ratio of the number of Cores allocated
to the soft partition to the total number of Cores on the Host Server,
increased by a percentage to be determined by Licensor. To be effective, such grant must be set forth
in the
applicable Product Order or otherwise in writing separate from this License
Agreement.
END USER LICENSE AGREEMENT SUPPLEMENT
The following terms and conditions shall supersede any conflicting terms
and conditions set forth elsewhere in the End User License Agreement:
With respect to Micro Focus COBOLTM
2010 Runtime, COBOL Server, and all other application deployment products, Licensee
may reproduce and distribute internally, in whole or in part, subject to the
applicable license option as described in Annex 1 and the applicable Product
Order, any software application program created by Licensee using the
corresponding development product for the Licensed Software (if separately
licensed to Licensee by Micro Focus) that contains any files from such
development product and/or the Licensed Software (“Licensee Application
Software”). Licensee shall (a) include Licensor’s
copyright notice for the Licensed Software on any product label and as a part
of any sign-on message for such Licensee Application Software product; and (b)
indemnify, hold harmless and defend Licensor and its third-party suppliers from
and against any claims or lawsuits, including attorneys’ fees, legal fees and
court costs that arise out of, or result from, the use or distribution of such
Licensee Application Software. Licensee
can only reproduce and distribute Licensee Application Software to third
parties after entering into a separate distribution agreement with Licensor. Usage and distribution of the Licensee
Application Software arises both by the explicit distribution of any Licensee
Application Software and by the implicit distribution and usage of any of the
Licensee Application Software’s functionality when linked into another software
application program. The grant of
license for the Licensed Software does not permit Licensee to either use or
reproduce and distribute any files supplied as part of the Licensed Software in
order to create a compiler, interpreter or runtime support product. Licensor offers specific production licensing
options for distribution to third parties which vary depending upon the license
fees paid by Licensee and Licensee should contact its Licensor sales
representative for more details.
With respect to all application development
products including Visual COBOL®:
1)
Licensee shall not use the Licensed Software, nor reproduce
or distribute any files supplied as part of the Licensed Software, in order to
create a compiler, interpreter, runtime support product or any other product
that is generally competitive with or a substitute for the Licensed Software or
any other Licensor product.
2)
This Licensed Software may include or generate
limited licenses for Micro Focus COBOLTM 2010 Runtime, COBOL Server,
or other deployment product. If such
licenses are included or generated, these limited licenses are provided solely
for use by the Named User of the Licensed Software in order to unit test an
application developed with the Licensed Software on the same machine or server used
to develop the application and may not be used for system testing, production
or deployment, and (for Visual COBOL products) may only be used if the Licensed
Software is current on support and maintenance.
Any use of this limited license outside of the development and unit
testing of such applications is not permitted.
With respect to VISUAL COBOL® PERSONAL EDITION products:
1)
Licensee shall not use the Licensed Software for
any purpose other than for personal educational and non-commercial
activities. The Licensed Software may
not be used for training or teaching purposes, and
2)
Licensee shall not use the Licensed Software to
compile source code for applications of more than two thousand, two hundred
(2200) lines of procedural code (exclusive of lines containing comments and/or
blanks) in any one (1) application or to deploy such application to any other
machine.
END USER LICENSE
AGREEMENT SUPPLEMENT
1. The following terms and
conditions are added to Annex 1 of the End User License Agreement and shall
supersede any conflicting terms and conditions set forth elsewhere in the End
User License Agreement:
F. LICENSE OPTIONS FOR THE FOLLOWING SOFTWARE
PRODUCTS:
All Orbix, Artix,
and Orbacus products and other software products where indicated by licensor,
notwithstanding the license options set forth in section d of annex 1. Not all license options are available for
each product. Please contact licensor for a list of specific
options available for the desired product.
Alert
License: An Alert License grants Licensee the right
to designate a Named User (which may be an employee or a non-employee) to
access and use the Licensed Software subject to and in accordance with the
Named User/Seat License model described herein, for the sole purpose of
receiving alerts and notices generated by the Licensed Software in connection
with the Use Case, if any, specified in the Product Order, and for no other
purpose. Licensee must purchase a number
of Alert Licenses equal to the number of recipients who will have the ability
to receive alerts and notices and who do not already possess a Platform User
License or a Runtime User License for the Licensed Software.
Core
License: A Core License grants Licensee the
right to run the Licensed Software, or an application which can access the
Licensed Software, on a single Core on a single Server and on a single
Platform. The total number of Cores on the Server may not exceed the
total number licensed to Licensee. Additional Core License(s) are required for
each Core of a Server on which the Licensed Software runs, including, without
limitation, Servers configured for disaster recovery, load balancing,
clustering, development, testing and reporting. A Core License may not be
transferred from one Server or Platform to another.
CPU License: A CPU License grants Licensee the right to
run the Licensed Software, or an application which can access the Licensed
Software, on a single CPU on a single Server and on a single Platform, where
such CPU contains only one Core. If the CPU contains more than one Core, then
Licensee must either purchase a Core license for the Licensed Software or, if
no Core license model is available for the Licensed Software, then each Core in
the CPU shall count as one (1) CPU. Additional CPU License(s) are required for
each CPU on a Server that runs the Licensed Software, including, without
limitation, Servers configured for disaster recovery, load balancing,
clustering, development, testing and reporting. A CPU License may not be
transferred from one Server or Platform to another.
Developer User License: A Developer User License grants Licensee the
right to designate a Named User to access and use the Licensed Software subject
to and in accordance with the Named User/Seat License model described herein,
in a non-production environment only and solely for the purposes of developing,
testing, staging, and/or supporting applications, dashboards, strategies,
algorithms, business processes, graphical user interfaces, and/or any other
computer software programs, to the extent contemplated in the Documentation for
the particular Licensed Software licensed hereunder.
Named
User/Seat License: A Named User or Seat License grants Licensee
the right to designate a Named User to access and use the Licensed Software or
access and use an application which can access the Licensed Software. Licensee must be able to identify and count
each Named User. A Named User License is a multi-server license but the
Licensed Software must be used on a single Platform. A Named User may not be designated
concurrently on different computers or devices or shared by multiple users. A
Named User does not have to be logged on to the Licensed Software to be counted
as a Named User. Subject to any prohibition on assignment in the End User
License Agreement, a Named User license designation may be transferred from one
Named User to another provided that the original Named User no longer requires
and is no longer permitted access to the Licensed Software. All Named Users
must be bound to the terms and conditions of this Agreement.
Platform
License:
A Platform License grants Licensee the right to install and use the Licensed
Software solely for the Use Case, if any, specified in the Product Order. A
Platform License is a multi-server license, but the Licensed Software must be
used on a single Platform only for the Use Case and only by the licensed number
of Named Users specified in the Product Order, each of which must be assigned a
Platform User License, a Runtime User License, or an Alert License by Licensee
in accordance with the terms of this paragraph. Licensee may assign each Named
User a Platform User License, a Runtime User License or an Alert License, provided
that the total number of such licenses does not exceed the number of Named
Users specified in the Product Order. If Licensee requires additional Named
Users licensed to use the Licensed Software, then Licensee will be required to
purchase additional Platform User Licenses, Runtime User Licenses and/or Alert
Licenses, as applicable.
Platform
User License: A Platform User License grants Licensee the
right to designate a Named User to access and use the Licensed Software subject
to and in accordance with the Named User/Seat License model described herein,
in order to build, develop, deploy and/or execute one or more Interfaces for
the Use Case, if any, specified in the Product Order.
Runtime
User License: A Runtime User License grants Licensee the
right to designate a Named User to access and use the Licensed Software subject
to and in accordance with the Named User/Seat License model described herein,
solely for the purposes of using the Dashboard Viewer capabilities of the
Licensed Software and/or utilizing and executing Interfaces for the Use Case,
if any, specified in the Product Order, and for no other purpose. Without
limiting the foregoing and for the avoidance of any doubt, a Named User with a
Runtime User License is not permitted to build or develop any Interfaces, but
only to use the Licensed Software in connection with the use and execution of
already existing Interfaces. Licensee must purchase a number of Runtime User
Licenses equal to the number of Named Users who will have the ability to access
and use the Dashboard Viewer capabilities and/or the Interfaces and who do not
already possess a Platform User License. Use of graphical user interfaces
connected to a Licensed Software requires a Runtime User license.
Server/Machine
License: A Server or Machine License grants Licensee
the right to install and use a Licensed Software, or an application which can
access the Licensed Software, on a single Server and on a single Platform. Additional Server/Machine license(s) are
required for each Server that runs the Licensed Software including, without
limitation, Servers configured for disaster recovery, load balancing,
clustering, development, testing and reporting. A Server or Machine License may not be
transferred from one Server or Platform to another.
Registered
Client License
[also may be known or referred to as
“Registered Device License”]: A
Registered Client License grants Licensee the right to designate a specific
device (a “Registered Client”) to access and use the Licensed Software or
access and use an application which can access the Licensed Software. Licensee must be able to identify and count
each Registered Client. A Registered
Client may be a Client Device, a Non-Human Operated Device or a Process. The Registered Client License cannot be used
to account for, and the Licensed Software may not be used by, unknown users. A
Registered Client License is a multi-server license but the Licensed Software
must be used on a single Platform and may not be used concurrently on different
computers or devices or shared by multiple devices. A Registered Client does
not have to be logged on to the Licensed Software to be counted as a Registered
Client. Subject to any prohibition on
assignment in the End User License Agreement, a license right designation may
be transferred from one Registered Client to another provided that the original
Registered Client is no longer permitted access to the Licensed Software.
Terabyte License: A Terabyte License grants Licensee the right
to use the Licensed Software to ingest and load uncompressed data collected
from source systems up to the licensed number of Terabytes.
Application Specific
License: If the Order lists a
specific application authorized for use with the Licensed Software, or if
Licensee obtained a Licensed Software in conjunction with a software
application provided by a third party, the Licensed Software is licensed for
use only with such application. Use with
any other application/product is strictly prohibited. Licensee shall be further subject to the
license terms of the appropriate license model for the Licensed Software (e.g.,
CPU License, Core License, Named User License, etc.) designated in the Product
Order.
Non-Production
Development, Support, Testing and/or Staging License: If Licensee ordered or obtained the Licensed Software for
development, support, quality assurance, testing and/or staging or other
non-production purposes, then the Licensed Software shall only be used by
Licensee for such purposes and may not be deployed in a production environment.
Licensee shall be further subject to the license terms of the appropriate
license model for the Licensed Software (e.g., CPU, License, Core License,
Server/Machine License, etc.) designated in the Product Order.
For
purposes of the above, the following terms shall have the following
definitions:
“Client
Device”: A Client Device is any
input technology that allows the Licensee to access the Licensed Software,
including but not limited to a workstation, a personal computer, a PDA device,
a cellular phone, a tablet, a laptop or other device that is operated by an
individual.
“Interface”: An Interface is an application (executing within the Licensed Software, such as a plug-in,
or external to the Licensed Software), algorithm, strategy, dashboard or graphical
user interface built or developed by Licensee with the use of the Licensed
Software in accordance with this Agreement.
“Non-Human
Operated Device”: A Non-Human Operated Device is a device that
is not operated by an individual including, but not limited to, a temperature
device, a production line bar code scanner, an automated system interface or a
tracking device.
“Named User”: A Named User is a single
individual, Non-Human Operated Device or Process.
“Process”: A Process is any
automated process that is not initiated by a Client Device or a Non-Human
Operated Device and includes, without limitation, automated controls and
background jobs.
“Server”: A logical computer with one or more CPUs on which the
Licensed Software resides, along with the applications utilizing the Licensed
Software, and which can be accessed by other computers. The term “Server” includes, but is not
limited to, web servers, batch servers and application servers.
“Site”: A site is defined as a single building or
campus of buildings.
“Use
Case”: A Use Case is a description in the Product Order of one or more
limitation(s) on the manner in which the Licensed Software may be used by
Licensee. Such limitation(s) may include, but are not limited to, use of the
Licensed Software only for a specified project, application, line of business,
purpose of use or group of users.
“Terabyte”:
A Terabyte is a multiple of the unit byte of digital information. One Terabyte
is equal to 1,000,000,000,000 bytes.
2. The
following terms and conditions are added to Annex 2 of the End User License
Agreement and shall supersede any conflicting terms and conditions set forth
elsewhere in the End User License Agreement:
ALL
VERSIONS OF ORBIX, ARTIX, AND ORBACUS PRODUCTS. For this Licensed Software:
Templates, Samples and/or Accelerators. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
THIS LICENSE AGREEMENT, ANY TEMPLATES OR SAMPLES (WHICH MAY OR MAY NOT BE
REFERRED TO AS “ACCELERATORS”) THAT ARE LOCATED IN THE LICENSED SOFTWARE AND
DESCRIBED IN THE DOCUMENTATION AS A SAMPLE, TEMPLATE OR ACCELERATOR, ARE
PROVIDED SOLELY ON AN ‘AS IS’ BASIS WITHOUT WARRANTY OF ANY KIND. LICENSOR
MAKES NO WARRANTIES WITH RESPECT TO SUCH TEMPLATES, SAMPLES AND/OR ACCELERATORS,
EXPRESS, IMPLIED, OR ARISING BY CUSTOM OR TRADE USAGE, AND SPECIFICALLY MAKES
NO WARRANTY OF MERCHANTABILY OR FITNESS FOR ANY PARTICULAR PURPOSE.
Any maintenance and support services offered
by Licensor for the Licensed Software shall not include maintenance and support
for the above-mentioned templates, samples or accelerators, as may be
configured by Licensee for its own implementation. Licensee shall be solely
responsible for the use and configuration of said templates, samples and/or
accelerators.
Licensor retains all ownership rights in and
to the above-mentioned templates, samples and/or accelerators, and any
modifications thereto or derivatives thereof.
Optional Components. The Licensed Software may include on
the media or in the electronically delivered files, as applicable, components,
features or other Licensor products (which may or may not be referred to as
“Blades”) for which a separate license purchase and license key(s) or control
code(s) are required. Licensee is permitted to use only the Licensed Software,
and components, features and/or Blades thereof, for which Licensee has ordered
and received a valid license key or control code.