PLEASE READ THIS AGREEMENT BEFORE OPENING THIS SOFTWARE PACKAGE. IF YOU OPEN THIS PACKAGE OR KEEP IT FOR MORE THAN THIRTY (30) DAYS, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT OPEN THIS SOFTWARE PACKAGE, AND PROMPTLY RETURN THIS SOFTWARE PACKAGE ALONG WITH DATED PROOF OF PAYMENT FOR A REFUND. YOU MAY ONLY UNLOCK AND/OR USE THE SOFTWARE FOR WHICH YOU HAVE A PAID-UP LICENSE AND FOR WHICH YOU HAVE LEGALLY RECEIVED AN UNLOCK KEY.
| (a) | "Documentation": any explanatory written or on-line material including, but not limited to, user guides, reference manuals and HTML files. |
| (b) | "Software": all material in this distribution including, but not limited to, source code, object code, byte code, dynamic-link libraries, shared libraries, static libraries, header files, executables, scripts and Documentation. |
| (c) | "Licensed Software": the Software for which you have paid the applicable license fee and received an authorized unlock key. |
| (d) | "Software Application Programming Interface ("API")": the set of access methods, whether provided by Rogue Wave Software, third parties, or developed by the licensee, through which the programmatic services provided by the Licensed Software are made available. The aforementioned access methods may use technology including, but not limited to, header files, events, network communications, macro and scripting languages, component technologies such as COM or JavaBeans, or distributed technologies such as CORBA, DCOM, or Java RMI. |
| (e) | "Value-Added Interface": a programmatic interface that has added significant value to the Software Application Programming Interface and makes use of the Licensed Software in its implementation, but without exposing any part of the Software Application Programming Interface through any means either directly or indirectly. |
| (f) | "User Software Product": an application developed by the licensee intended for execution on a computer, that makes use of the Licensed Software in its implementation, but without exposing any part of the API through any means either directly or indirectly. |
| (g) | "Mainframe Class Computers": such computers as are marketed or commonly considered to be mainframe computers in the computer industry. |
The Software is owned by Rogue Wave Software, Inc. ("Rogue Wave") and is protected by U.S. copyright laws and other laws and by international treaties. It is intended for use by a software programmer who has experience using development tools and class libraries. The Software is not intended for use by consumers for household use.
This Rogue Wave Single User Software License Agreement ("Agreement") accompanies the Licensed Software. This copy of the Licensed Software is licensed to you as the end user or to your employer ("Company") for your exclusive use as an end user. "You" as used in the remainder of this Agreement shall refer to the individual licensee, whether as an individual programmer or as a Company. If you do not accept this Agreement, you may return this package along with dated proof of purchase to the place you obtained it within thirty (30) days and your money will be refunded, and you will not be licensed to unlock or to use the Software.
Subject to the terms and conditions of this Agreement, Rogue Wave grants to you the non-exclusive, non-transferable, non-concurrent right to use the Software Application Programming Interface on a single computer by a single individual user, except that this license does not grant you the right to use the Licensed Software on any Mainframe Class Computer. If multiple copies have been purchased, you may load one copy of the Licensed Software on a server and permit those individuals (who purchased the Licensed Software or for whom the Licensed Software was purchased) to access and execute the Licensed Software. This is not a concurrent user license; the rights granted are not for any individual(s) up to the number of licenses purchased. The rights are granted only to the specified individual(s) in your purchase order for whom the Licensed Software was purchased. You may also:
| (a) | Make one backup copy of the Licensed Software solely for archival and disaster-recovery purposes, or |
| (b) | Transfer the Licensed Software to a hard disk and keep the original copy solely for archival and disaster-recovery purposes. You may use the Licensed Software to develop Value-Added Interfaces and User Software Products only for the single platform (operating system environment) or platforms for which you have purchased the license. If you wish to develop User Software Products for use on other platforms for which you do not have a license, you must purchase additional licenses for each additional platform. Your purchase of a license does not entitle you to use the Software licensed for a platform different than the platform(s) for which your copy is licensed. You may distribute User Software Products for internal use only, including those portions of the Licensed Software used solely for purposes of supporting execution of said User Software Product where reasonable steps have been taken to ensure that no parts of the Software Application Programming Interface or any internally used Value-Added Interfaces (if any) have been exposed directly or indirectly, and where the license for said User Software Products explicitly prohibits the use of the User Software Product for software development use. YOU HAVE NO RIGHTS TO USE THE LICENSED SOFTWARE BEYOND THOSE SPECIFICALLY GRANTED IN THIS SECTION. |
| (a) | Notwithstanding any provisions in this Agreement to the contrary, you may not distribute:
|
| (b) | In addition, you may not:
|
You acknowledge and agree that all right, title and interest in and to the Licensed Software, including all intellectual property rights therein, are the property of Rogue Wave, subject only to the licenses granted to you under this Agreement. This Agreement is not a sale and does not transfer to you any title or ownership in or to the Licensed Software or any patent, copyright, trade secret, trade name, trademark or other proprietary or intellectual property rights related thereto.
You may not rent, transfer, assign, sublicense or grant any rights in the Licensed Software, in full or in part, to any other person or entity without Rogue Wave's written consent.
Rogue Wave warrants to you that the Licensed Software will substantially perform the functions described in the Documentation for a period of thirty (30) days after the date of delivery of the Licensed Software to you. Rogue Wave's sole and exclusive obligation, and your sole and exclusive remedy, under this warranty is limited to Rogue Wave's using reasonable efforts to correct material, documented, reproducible defects in the Licensed Software that you describe and document to Rogue Wave during the thirty (30) day warranty period. In the event that Rogue Wave fails to correct a material, documented, reproducible defect within a reasonable period, Rogue Wave may, at Rogue Wave's discretion, replace the defective Licensed Software or refund to you the amount that you paid Rogue Wave for the defective Licensed Software and cancel this Agreement and the licenses granted herein. In such event, you agree to return to Rogue Wave all copies of the Licensed Software (including the original).
Rogue Wave also warrants that the physical media on which the Licensed Software is delivered to you (unless the Licensed Software is downloaded electronically by you and no media is supplied by Rogue Wave) will be free from defects in manufacturing and workmanship for a period of thirty (30) days from the date of delivery. Rogue Wave will, at Rogue Wave's expense, replace any defective media returned to Rogue Wave within thirty (30) days of the date of delivery of the media to you.
EXCEPT AS EXPRESSLY SET FORTH ABOVE, ROGUE WAVE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
IN NO EVENT SHALL ROGUE WAVE BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, REVENUES, DATA OR OTHER ECONOMIC ADVANTAGE) WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF ROGUE WAVE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Rogue Wave may, no more than once during any twelve (12) month period, unless there is evidence of violation, request you to conduct an internal audit of your use of the Licensed Software, or Rogue Wave may request an audit by an independent party, to ensure compliance with the provisions of this Agreement. Rogue Wave shall provide you with no less than fifteen (15) days prior notice of each such audit. If Rogue Wave requests an independent auditor, the cost of such audit will be paid by Rogue Wave, unless said audit shows you to be in violation of this Agreement.
Rogue Wave reserves the right, at its sole discretion, to terminate this Agreement upon written notice if you have breached the terms and conditions hereof. You may terminate this Agreement at any time by ceasing to use the Licensed Software and by returning all copies of the Licensed Software (including the original) to Rogue Wave or by destroying all copies of the Licensed Software (including the original). Sections 4, 5, 6, 7, 8 and 10 survive any termination of this Agreement and apply fully to any termination. Unless terminated by either party, this Agreement shall remain in effect.
| (a) | Applicable Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to conflict of laws principles and without regard to the 1980 U.N. Convention on Contracts for the International Sale of Goods. The federal and state courts of California shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement, and you expressly consent to (i) the personal jurisdiction of the state and federal courts of California, and (ii) service of process being effected upon you by registered mail. |
| (b) | Limitation of Actions. No action or proceeding against Rogue Wave, whether for breach, indemnification, contribution, or otherwise, shall be commenced more than one year after delivery of the Licensed Software, and no such claim may be brought unless Rogue Wave has first been given commercially reasonable notice, a full written explanation of all pertinent details (including copies of all materials), and a good faith opportunity to resolve the matter. |
| (c) | Invalidity and Waiver. Should any provision of this Agreement be held by a court of law to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected or impaired thereby. The failure of any party to enforce any of the terms or conditions of this Agreement, unless waived in writing, will not constitute a waiver of that party's right to enforce each and every term and condition of this Agreement. |
| (d) | U.S. Government Restricted Rights. The Licensed Software is provided with Restricted Rights. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c) (1) (ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Rogue Wave Software, Inc., 5500 Flatiron Parkway, Boulder, Colorado 80301 USA. |
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND ROGUE WAVE WHICH SUPERSEDES ANY PROPOSAL OR PRIOR OR CONTEMPORANEOUS AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.