path: root/licenses/Ximian-Connector

Terms of license:

THIS SOFTWARE LICENSE AGREEMENT ("THE AGREEMENT") IS A LEGAL AGREEMENT
BETWEEN XIMIAN, INC., , 401 PARK DRIVE, 3 WEST, BOSTON, MA 02215
("XIMIAN") AND THE CUSTOMER OF THE SOFTWARE (THE "CUSTOMER"). BY
INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU REPRESENT (I)
THAT YOU HAVE BEEN AUTHORIZED TO ACCEPT THESE TERMS ON BEHALF OF THE
CUSTOMER (THE ENTITY ON WHOSE BEHALF YOU REPRESENT YOU ARE AUTHORIZED TO
ACT, IN WHICH EVENT "YOU" AND "YOUR" SHALL REFER TO YOU AND SUCH ENTITY,
AS THE CASE MAY BE), OR (II) THAT YOU INTEND TO BE PERSONALLY BOUND TO
THE TERMS OF THIS AGREEMENT AS THE CUSTOMER. IF YOU ARE NOT SO
AUTHORIZED OR DO NOT INTEND TO BE PERSONALLY BOUND, THEN LICENSOR IS
UNWILLING TO LICENSE THE SOFTWARE AND THE INSTALLATION OR USE OF THE
SOFTWARE IS A VIOLATION OF U.S. AND INTERNATIONAL COPYRIGHT LAWS AND
CONVENTIONS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY DELETE THE
UNUSED SOFTWARE WITHIN THIRTY DAYS AFTER YOU OBTAINED THE SOFTWARE AND
REQUEST A FULL REFUND OF THE LICENSE FEE. IF YOU ACCEPT THESE TERMS FOR
AN ENTITY ON WHOSE BEHALF YOU ARE AUTHORIZED TO ACT, YOU MAY USE THE
SOFTWARE ONLY ON BEHALF OF SUCH ENTITY. IF YOU INTEND TO BE PERSONALLY
BOUND, USE OF THE SOFTWARE IS LIMITED TO YOUR PERSONAL USE.

XIMIAN hereby agrees to grant and CUSTOMER agrees to accept a
non-exclusive license to use the Software subject to the following terms
and conditions:

1. Right to Use: The Software is provided in and is licensed for use in
object code form only and for use only by the number of user(s) and/or
on the number of computer(s) as described on the license file sent to
you upon purchase. CUSTOMER may make one copy of the Software for use as
archival or backup purposes (or that number of copies as permitted by
applicable law), but any and all copies must include XIMIAN's copyright
notice, and are fully subject to the terms of this Agreement. CUSTOMER
may not reverse engineer, disassemble, decompile, translate or otherwise
attempt to create the source code from the Software or create derivative
works of the Software or any portion thereof, including for reasons of
error correction or interoperability. During the warranty period stated
in Section 5 below, at CUSTOMER's request and at XIMIAN's election or as
may be required by applicable law, XIMIAN will make commercially
reasonable efforts to make available to CUSTOMER certain interface
specifications so that CUSTOMER may develop software interfaces to
provide interoperability with the Software. CUSTOMER may not (i) publish
or provide any results of benchmark tests run on the Software to a third
party without Licensee's prior written consent, (ii) disclose,
distribute or otherwise make available the Software to any other party
or permit others to use it, except employees and agents of CUSTOMER who
use it on CUSTOMER's behalf, if CUSTOMER is an entity, or (iii) remove
or alter any trademark, logo, copyright or other proprietary notices,
legends, symbols or labels in the Software. CUSTOMER may not rent,
lease, sublicense, grant a security interest in, or otherwise transfer
rights to the Software, but CUSTOMER may transfer the Software to a
third party on a permanent basis provided CUSTOMER retains no copies and
the recipient agrees to accept all of the terms and conditions of this
Agreement. Upon such permitted transfer, CUSTOMER must either transfer
all copies of the Software and all materials provided for or with it to
the recipient or destroy any copies not so transferred.

2. Duration: This license shall continue so long as CUSTOMER uses the
Software in compliance with the Agreement. Should the CUSTOMER breach
any of its obligations, this license shall terminate and CUSTOMER agrees
to destroy or return all copies of the Software and all materials
provided for or with the Software upon notification and demand by
XIMIAN.

3. Title: XIMIAN retains all proprietary rights and title to the
Software and any modifications, and no ownership of any part of the
Software is hereby transferred to CUSTOMER.

4. Security: CUSTOMER understands and agrees that the Software contains
trade secrets belonging to XIMIAN, and will take all reasonable steps to
protect its confidentiality. CUSTOMER acknowledges that the Software is
the property of XIMIAN and contains confidential information. CUSTOMER
agrees that, other than to its employees, it will not provide a copy of
the Software nor divulge any details of it to any person without the
prior consent in writing of XIMIAN.

5. Warranties: XIMIAN warrants solely that for a period of ninety (90)
days from shipment by XIMIAN of the Software, the medium upon which the
Software is delivered (if the Software is not downloaded by CUSTOMER)
will be free from defects in material and workmanship when given normal,
proper and intended usage, and that the Software will function
materially as described in the accompanying Software user documentation
("Documentation"). This warranty does not apply insofar as: (a) the
Software is subjected to misuse, neglect, accident, or exposure to
environmental conditions beyond those specified in the Documentation;
(b) claims resulting from acts or omissions caused by persons other than
XIMIAN or from products, material or software not provided by XIMIAN;
(c) a version of the Software is used that does not include all updates
available from XIMIAN; (d) the Software is modified or; (e) the Software
is used on an operating system other than the system and version
specified in the Documentation or on a machine not described in the
Documentation.

In the event of a breach of warranty, XIMIAN's sole responsibility, and
CUSTOMER's sole and exclusive remedy, is, at XIMIAN's option, to repair
or replace all or any portions of the Software, or to refund the paid
license fee. This limited warranty is valid only if XIMIAN receives
written notice of breach of warranty within ten days of such ninety-day
period.

6. Limitation of Warranties and Liability: EXCEPT AS EXPRESSLY SET FORTH
IN SECTION 5 HEREIN, XIMIAN SHALL HAVE NO LIABILITY TO THE CUSTOMER OR
ANY THIRD PARTY FOR THE SOFTWARE, INCLUDING ANY LIABILITY FOR
NEGLIGENCE; XIMIAN MAKES AND THE CUSTOMER RECEIVES NO WARRANTIES,
EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT
OR ANY OTHER COMMUNICATION; AND XIMIAN SPECIFICALLY DISCLAIMS ANY
WARRANTY OF MERCHANTABILITY OR SATISFACTORY QUALITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THE CUSTOMER MAY HAVE
CERTAIN STATUTORY RIGHTS TO WHICH THESE EXCLUSIONS DO NOT APPLY,
HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF
STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE
WARRANTY PERIOD SET FORTH IN SECTION 5 ABOVE. MOREOVER, IN NO EVENT WILL
WARRANTIES PROVIDED BY LAW, IF ANY, APPLY UNLESS THEY ARE REQUIRED TO
APPLY BY STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. NO DEALER,
AGENT, OR EMPLOYEE OF XIMIAN IS AUTHORIZED TO MAKE ANY MODIFICATIONS,
EXTENSIONS, OR ADDITIONS TO THIS LIMITED WARRANTY.

CUSTOMER is responsible for the selection of the Software to achieve its
intended results, and for the installation, use and results obtained
from the Software. XIMIAN does not warrant that use of the Software will
be uninterrupted or error free, nor that program errors will be
corrected.

The Software is not fault-tolerant and is not designed, manufactured or
intended for use or resale as on-line control equipment in hazardous
environments requiring fail-safe performance, such as in the operation
of nuclear facilities, aircraft navigation or communication systems, air
traffic control, direct life support machines, or weapons systems, in
which the failure of the Software could lead directly to death, personal
injury, or severe physical or environmental damage ("High Risk
Activities"). Accordingly, XIMIAN and its suppliers specifically
disclaim any express or implied warranty of fitness for High Risk
Activities.

The cumulative liability of XIMIAN to the CUSTOMER for all claims
relating to the Software, in contract, tort, or otherwise, shall not
exceed the total amount of all license fees paid to XIMIAN by the
CUSTOMER for the Software.

IN NO EVENT SHALL XIMIAN BE LIABLE TO THE CUSTOMER FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL, MULTIPLE OR INCIDENTAL DAMAGES,
INCLUDING WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION AND
LOST DATA, EVEN IF XIMIAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
POTENTIAL LOSS OR DAMAGE.

SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION
OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. SO THE ABOVE EXCLUSIONS OR
LIMITATION MAY NOT APPLY TO YOU.

7. Taxes: CUSTOMER agrees to pay (and to reimburse XIMIAN on request if
XIMIAN is required to pay) any sales, use, value added (VAT),
consumption or other tax (excluding any tax on XIMIAN's net income) or
other fee or charge of any kind or nature that is levied or imposed by
any governmental authority on CUSTOMER's use or license of the Software.

8. Miscellaneous: This Agreement, the license granted hereunder, the
Software and any modifications thereto may not be assigned or in any way
transferred without the prior written consent of XIMIAN. The terms of
this Agreement shall be construed in accordance with the substantive
laws of the Commonwealth of Massachusetts, United States of America,
without giving effect to the principles of conflict or choice of law of
such Commonwealth. The original of this Agreement has been written in
English. The parties hereto waive any statute, law, or regulation that
might provide an alternative law or forum or to have this Agreement
written in any language other than English. XIMIAN and CUSTOMER exclude
the United Nations Convention on Contracts for the International Sale of
Goods and the Uniform Computer Information Transactions Act from this
Agreement. If any provision of this Agreement is held to be excessively
broad as to scope, activity, subject or otherwise so as to be
unenforceable at law, such provision shall be constructed by limiting or
reducing it so as to be enforceable to the maximum extent compatible
with the applicable law as it shall then appear. This Agreement
represents the entire understanding between the parties with respect to
its subject matter and supersedes all prior written and oral
communications. This Agreement may not be modified except by a written
agreement signed by authorized representatives of both parties. A waiver
by either party of its rights hereunder shall not be binding unless
contained in a written agreement signed by an authorized representative
of the party waiving its rights. The non-enforcement or waiver of any
provision on one occasion shall not constitute a waiver of such
provision on any other occasions unless expressly so agreed in writing.

9. U.S. Government Restricted Rights: The Software and Documentation are
"commercial items" as that term is defined in 48 C.F.R. 2.101 (October
1995) consisting of "commercial computer software" and "commercial
computer software documentation" as such terms are used in 48 C.F.R.
227.7202-1, 227.7202-3 and 227.7202-4 (June 1995). If the CUSTOMER
hereunder is the U.S. Government or any agency or department thereof,
the Software and Documentation are licensed hereunder (i) only as a
commercial item, and (ii) with only those rights as are granted to all
other end users pursuant to the terms and conditions of this Agreement.

10. Export Control: None of the Software or underlying information or
technology may be downloaded or otherwise exported or reexported (i)
into (or to a national or resident of) Cuba, Iraq, Libya, Sudan, North
Korea, Iran, Syria or any other country to which the U.S. has embargoed
goods; or (ii) to anyone on the U. S. Treasury Department's list of
Specially Designated Nationals or the U.S. Commerce Department's Table
of Denial Orders. By downloading or using the Software, CUSTOMER agrees
to the foregoing and represents and warrants that it is not located in,
under the control of, or a national or resident of any such country or
on any such list. In addition, CUSTOMER agrees to comply with all
relevant export laws and regulations of the United States and any local
laws in its jurisdiction that may impact its right to import, export or
use the Software, and represents that it has complied with any
regulations or registration procedures required by applicable law to
make this license enforceable.

11. Arbitration: CUSTOMER agrees that all disputes arising out of or
relating to this Agreement shall be finally settled by arbitration
conducted in Boston, Massachusetts, United States of America, under the
rules of commercial arbitration of the American Arbitration Association.
Both parties shall bear equally the cost of arbitration (exclusive of
legal fees and expenses, all of which each party shall bear separately).
All decisions of the arbitrator(s) shall be final and binding on both
parties and enforceable in any court of competent jurisdiction.
Notwithstanding the foregoing, in the event of breach by CUSTOMER of its
obligations hereunder, XIMIAN may seek injunctive or other equitable
relief in any court of competent jurisdiction.