STINGRAY PRODUCT SINGLE USER SOFTWARE LICENSE
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.
1. DEFINITION OF TERMS
(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, one or more of the following: source code, object code,
byte code, dynamic-link libraries, shared libraries, static libraries,
header files, executables, scripts, sample programs, utility programs,
makefiles 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.
2. SPECIAL LIMITED TERM EVALUATION LICENSE
If you have been provided with a copy of the Software for evaluation
purposes, Rogue Wave Software, Inc. ("Rogue Wave") grants to you,
subject to the terms of this Single User License Agreement (excluding
Section 4, under which you have no rights) a non-exclusive,
non-transferable, non-concurrent limited internal use license for
evaluation purposes only. This license is for a period of thirty (30) days,
commencing upon receipt of the Software, or, if received electronically,
from your initial downloading date, to evaluate the Software. If the
Software is acceptable, you agree to promptly notify your Rogue Wave
Sales Representative. Otherwise, you shall immediately cease any further
use of the Software, and return all copies of the Software (including
the original) to Rogue Wave or destroy all copies of the Software
(including the original) and related Documentation provided to you by
Rogue Wave and provide Rogue Wave written confirmation that you
have done so.
3. GENERAL
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.
4. LICENSE GRANTS
(a) Subject to the terms and conditions of this Agreement , if you
have agreed to pay the applicable license fee for the Licensed Software,
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:
(i) Make one backup copy of the Licensed Software solely for archival
and disaster-recovery purposes, or
(ii) Transfer the Licensed Software to a hard disk and keep the original
copy solely for archival and disaster-recovery purposes.
(b) 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.
(c) You may distribute User Software Products including those
portions of the Licensed Software used solely for purposes of supporting
execution of said User Software Product where 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.
5. LICENSE RESTRICTIONS
(a) Notwithstanding any provisions in this Agreement to the
contrary, you may not distribute:
(i) any portion of the Software Application Programming Interface,
(ii) any Value-Added Interface,
(iii) any executable delivered with the Licensed Software,
(iv) any portion of the Documentation,
(b) In addition, you may not:
(i) decompile, disassemble, or reverse engineer any object code
form of any portion of the Software,
(ii) export from the United States any portion of the Software
without obtaining the prior written consent of Rogue Wave and all
applicable export licenses and governmental permits,
(iii) disclose any source code of the Software to any person or
entity,
(iv) copy the Documentation, including any Documentation available
in on-line form (except that, with respect to Documentation available
only in on-line form, you may make a single tangible copy solely for
use with the Licensed Software), or
(v) port the Software to any computer Operating System other than:
Windows 3.1, Windows NT, Windows 95 and Macintosh System 7
without the express written consent of Rogue Wave.
6. TITLE
You acknowledge and agree that all right, title and interest in and to
the 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 Software or any
patent, copyright, trade secret, trade name, trademark or other
proprietary or intellectual property rights related thereto.
7. NON-TRANSFERABILITY
You may not rent, transfer, assign, sublicense or grant any rights in the
Software, in full or in part, to any other person or entity without
Rogue Wave's written consent.
8. LIMITED WARRANTIES
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.
9. LIMITATION OF LIABILITY
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.
10. AUDIT
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 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.
11. TERMINATION
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, 10 and 11 survive any termination
of this Agreement and apply fully to any termination. Unless terminated
by either party, this Agreement shall remain in effect.
12. MISCELLANEOUS
(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 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.