YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THIS “AGREEMENT”) GOVERNING YOUR USE, OR THE USE BY THE PARTY YOU REPRESENT, OF OBJECTIVITY, INC.’S SOFTWARE PRODUCTS (“PRODUCTS”) LISTED IN AMAZON’S MARKETPLACE.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATION OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU”, “YOUR”, OR “CUSTOMER” WILL REFER TO BOTH YOU AND SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SOFTWARE PRODUCTS.
OBJECTIVITY LICENSE AND SUPPORT AGREEMENT
- PRODUCTS LICENSE
1.1 Rights Granted.
(a) Objectivity hereby grants to Customer a fee-bearing, nonexclusive and nontransferable license to use the Products solely for Customer’s internal operations in Amazon’s Marketplace. Notwithstanding the foregoing, certain Products may be licensed for use by multiple Users. Customer may make archival and backup copies of the Products, which copies shall be subject to the provisions of this Agreement, and all proprietary rights notices shall be reproduced in such copies. “Products” means (i) the Objectivity computer products in object code form only and (ii) user documentation. License fees for the Products shall be as specified in the Amazon Marketplace. Copying of the user documentation is not permitted except with the prior written consent of Objectivity.
(b) If Customer is licensing the Products for development purposes, Objectivity hereby grants to Customer a fee-bearing, non-exclusive license to create applications to be used in conjunction with the Products. This license includes writing, editing, compiling, linking, and debugging code that creates, retrieves, updates or deletes objects using the Products. Customer has no right to transfer such applications or otherwise allow access to any other individual User unless such individual User has ordered a license and is bound, in writing, by this Agreement.
(c) If Customer is licensing the Products as an end user, Objectivity hereby grants to Customer a fee-bearing, non-exclusive license to use the Products in conjunction with applications created by Customer or others. Any individual User employing applications which access objects from the Products, even if the Products are not running on such User’s computer, must order a license and be bound, in writing, by this Agreement.
(d) Customer agrees to place the following proprietary rights notice on any application using the Products:
All rights reserved
The notice shall be applied to all copies of the Products, in some form, either human or machine readable.
(e) Customer agrees not to engage in, cause or permit the reverse engineering, disassembly, decompilation or any similar manipulation of the Products. Customer acquires only the right to use the Products as specified herein, and all rights, title and interest in the Products shall at all times remain the property of Objectivity or Objectivity’s licensors.
1.2 Definition of User. For the purposes of this Agreement, a “User” is anything that makes use of, creates, deletes, manipulates, or gains value from objects stored in the Objectivity/DB or ThingSpan database, either directly or indirectly. A direct User interacts directly with an Objectivity/DB or ThingSpan client. An indirect User interacts through a multi-tier architecture with an Objectivity/DB or ThingSpan client, e.g. via CORBA, an application server, or a web server. A User may be named, and thus identified by the name of a person, or the name of a terminal or GUI operator, or a system operator. A User may also be a physical device that is connected to the system, e.g. a sensor, a detector, a unit of work, or network element.
1.3 Additional Restrictions. You agree not to publish, or permit the publication of, the results of any benchmark tests or other comparative or analytical material which refer to the Products as used by you, without Objectivity’s prior written permission.
- TERM AND TERMINATION
2.1 Term. The term of this Agreement shall begin immediately upon usage of the Products, and will continue throughout your usage of the Products on Amazon’s Marketplace.
- MAINTENANCE AND SUPPORT SERVICES
3.1 Services. Objectivity, at its sole discretion, will respond to email inquiries during the term of this Agreement. Responses will be provided by email between the hours of 9:00 AM and 5:00 PM Pacific Time, Monday through Friday, except for holidays observed by Objectivity.
Objectivity is not responsible for any issues or downtime caused by Amazon.
- WARRANTIES, REMEDIES, LIMITATION OF LIABILITY
4.1 Infringement Indemnity.
(a) Objectivity will defend Customer against a claim that Products furnished and used within the scope of this Agreement infringe a third party’s intellectual property right (a “Claim”), and Objectivity will indemnify Customer for any damages finally awarded or any final settlement amount paid based upon a Claim, provided Customer notifies Objectivity in writing of the details of a Claim within thirty (30) days after its occurrence, and Customer provides Objectivity (at Objectivity’s expense for reasonable out-of-pocket-expenses) with the assistance, information and authority necessary for Objectivity to solely conduct the defense and all related settlement negotiations.
(b) Notwithstanding any other provision of this Agreement, Objectivity shall have no liability for any Claim based on: (i) use of a superseded or altered release of Products if such Claim would have been avoided by use of current or unaltered releases of such Products or (ii) the combination, operation or use of any of the Products furnished under this Agreement with programs or data not furnished by Objectivity if such Claim would have been avoided by use of the Products without such programs or data.
(c) In the event the Products are held or are believed by Objectivity to infringe, Objectivity shall have the option, at its expense, to (i) modify the Products to be non-infringing, (ii) obtain for Customer a license to continue using the Products, or (iii) substitute the Products with other software reasonably suitable to Customer. Objectivity reserves the right to terminate the license for the infringing Products and refund the license fees paid for such Products if it cannot reasonably take any of the actions set forth above. This Section 4.1 states Customer’s exclusive remedy and Objectivity’s entire liability for any claims of infringement.
4.2 Warranties, Exclusive Remedies and Disclaimers.
(a) Warranties. Objectivity warrants that each Product will be free from any Software Problem so long as Customer is receiving Maintenance and Support Services, unless such Products are modified by Customer. Objectivity does not warrant that the operation of the Products will be uninterrupted or error-free, that all Software Problems will be corrected, that the Products will satisfy Customer’s requirements, or that the Products will operate in the combinations which Customer may select for use. For any breach of the above warranties, Customer’s exclusive remedy, and Objectivity’s entire liability, shall be for Objectivity to take the actions specified in Maintenance and Support Services.
(b) Limitations on Warranties. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. The warranties above shall apply only if alleged defects actually exist and were not caused by Customer’s misuse, unauthorized modifications, neglect, improper installation or testing, attempts to repair, or the like, or by accident, fire, power surge or failure, or other hazard. Repair or replacement of a part, code or other item will be warranted so long as Customer is receiving Maintenance and Support Services or thirty (30) days, whichever is longer.
(c) Disclaimer for Embedded Programs. Certain Products include some components that are individually made available under separate terms and conditions and subject to disclaimers not applicable to the Products, and therefore not set forth herein (“Open Source Licenses”). Customer can find the Open Source Licenses at http://support.objectivity.com/third-party-software. The Open Source Licenses do not apply to Products themselves.
4.3 Limitation of Liability. EXCEPT FOR ANY BREACH OF THE SCOPE OF THE LICENSES GRANTED OR LICENSE RESTRICTIONS SET FORTH IN SECTION 1, OR FOR BREACHES OF YOUR OBLIGATIONS UNDER SECTION 5.1, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES UNDER THIS AGREEMENT, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY. OBJECTIVITY’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT WILL IN NO EVENT EXCEED THE AMOUNT OF LICENSE AND MAINTENANCE FEES PAID BY YOU UNDER THIS AGREEMENT, IF ANY. SOME STATES AND JURISDICTIONS OUTSIDE OF THE UNITED STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY. YOU ACKNOWLEDGE THAT THE ALLOCATION OF RISKS AND BENEFITS UNDER THIS AGREEMENT ARE BASED ON, AND THE LICENSE AND MAINTENANCE FEES UNDER THIS AGREEMENT WOULD BE GREATER IN THE ABSENCE OF, THE LIMITATIONS DESCRIBED ABOVE.
- GENERAL TERMS
5.1 Payments and Taxes. Customer shall pay all fees for licenses, maintenance and support and other items for use of the Products on the Amazon Marketplace.
5.2 Nondisclosure. The parties agree, both during the term of this Agreement and for a period of three (3) years after termination of this Agreement and of all licenses granted under this Agreement: (a) to hold in confidence information which is confidential to the other (“Confidential Information,” as more fully described below); (b) not to disclose or make each other’s Confidential Information available, in any form, to any third party; and (c) not to use each other’s Confidential Information for any purpose other than as specified in this Agreement. In addition, each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents (who shall be entitled to have access to same only on a need-to-know basis) in violation of any provision of this Agreement. A party’s Confidential Information shall be limited to the Products, information related thereto (including results of benchmark test of any Products), and all information clearly marked as confidential and shall not include information which: (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to such access to or the disclosure of same and had not been obtained by such other party either directly or indirectly from the party hereto granting such access or making such disclosure, all of which is properly documented by such other party; (iii) is lawfully disclosed to the other party by a third party having a legal right to so disclose without restriction on such disclosure; or (iv) with respect to information that is the same as or substantially identical to the Confidential Information, is entirely independently developed by the other party, which independent development is properly documented by such other party.
5.3 Governing Law; Jurisdiction. This Agreement is made in accordance with and shall be governed and construed under the laws of the State of California, as applied to agreements executed and performed entirely in California by California residents and in no event shall this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods. In any legal action relating to this Agreement, each party agrees (a) to the exercise of jurisdiction over it by a state or federal court in Santa Clara or San Mateo County, California; and (b) that if such party brings the action, it shall be instituted in one of the courts specified in subsection (a) above. In any action to enforce this Agreement, the prevailing party will be entitled to its reasonable attorneys’ fees and costs in addition to any other recovery awarded.
5.4 Export Administration and U.S. Government Rights.
(a) Export Control. Customer acknowledges that the laws and regulations of the United States restrict the export and re-export of the Products. Customer agrees that it will not export or re-export the Products or media in any form without first obtaining the appropriate United States and foreign government approval. Customer hereby agrees to comply with the requirements of the U.S. Foreign Corrupt Practices Act (the “Act”) and shall refrain from any payments to third parties which would cause Objectivity or Customer to violate the Act.
(b) Government End Users. The Products are a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and is provided to the U.S. Government only as a commercial end item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), all U.S. Government end users acquire the Products with only those rights set forth herein.
5.5 Entire Agreement; Severability and Waiver. This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements or representations, written or oral, with respect to the Products, the services specified herein, and the licensing and providing of service under this Agreement. Objectivity shall not be bound by any additional provisions in any order, release, acceptance or other written correspondence from Customer unless expressly agreed to in writing. All provisions of the Agreement shall be and remain in full force and effect with respect to its subject matter. In the event any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in effect. Any waiver (express or implied) by either party of any breach of this Agreement shall not constitute a waiver of any other or subsequent breach.
5.6 Nonassignability and Binding Effect. Objectivity may assign its rights and/or delegate its duties hereunder, in whole or in part, at any time upon prior written notice to Customer. Any attempted assignment by Customer of its rights or delegation of its duties hereunder shall be void without the prior written consent of Objectivity, which consent may be withheld for any reason or no reason. In the case of any permitted assignment or transfer of or under this Agreement, this Agreement or the relevant provisions shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the parties hereto.