f90SQL Software License Agreement
THIS IS A PROFESSIONAL USE LICENSE AGREEMENT FOR DESKTOP APPLICATIONS ("AGREEMENT") BETWEEN CANAIMA SOFTWARE ("CANAIMASOFT") AND THE ENTITY OR INDIVIDUAL ("LICENSEE" OR "YOU") WHO HAS RECEIVED THIS AGREEMENT AND THE ACCOMPANYING F90SQL SOFTWARE AND DOCUMENTATION, AND PAID THE ASSOCIATED FEES TO CANAIMASOFT. CANAIMASOFT IS WILLING TO GRANT TO LICENSEE THE FOLLOWING LICENSE ON THE CONDITION THAT LICENSEE ACCEPTS ALL TERMS OF THIS AGREEMENT.
DO NOT INSTALL, DOWNLOAD OR USE THE F90SQL SOFTWARE UNTIL YOU HAVE READ AND ACCEPTED THIS LICENSE AGREEMENT. BY INSTALLING, DOWNLOADING OR USING THE SOFTWARE YOU ACCEPT THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THIS LICENSE AGREEMENT: (A) YOU MUST NOT INSTALL, DOWNLOAD, OR USE THE SOFTWARE, AND (B) YOU MAY RETURN THE SOFTWARE, INCLUDING ALL PACKAGING, MEDIA, AND DOCUMENTATION, FOR A REFUND, PROVIDED THAT THE RETURN IS MADE WITHIN TEN DAYS OF THE DATE OF PURCHASING THIS LICENSE.
1. Definitions
Affiliates. "Affiliates" shall mean CanaimaSoft's parent company, CanaimaSoft's subsidiaries, and its and/or their respective subsidiaries.
Desktop Applications. "Desktop Applications" shall mean computer software program applications developed by Licensee which include Linkable Routines and/or Distributable Files and which require a Desktop Operating Environment. Applications which do not require a Desktop Operating Environment are considered to be "Embedded Applications." A different license must be purchased from CanaimaSoft or its authorized reseller for use of the Software to develop Embedded Applications.
Desktop Operating Environment. "Desktop Operating Environment" shall mean one or more of the following: Microsoft Windows; Microsoft Windows NT; Apple MacOS; UNIX, Linux, and OpenVMS.
Developer. "Developer" shall mean the individual natural person who accepts and agrees to this Agreement. If Developer is an employee or contractor of a company and intends to use the Software within the scope of his/her employment or contract, then acceptance of this Agreement is also made on behalf of the company. The Developer is the only person authorized to use the Software under the terms of this Agreement.
Distributable Files. "Distributable Files" shall mean those files identified as distributable in the Documentation and or the accompanying Readme.txt files.
Documentation. "Documentation" shall mean the online documentation and printed documentation, if any, provided to Licensee in connection with this Agreement.
Error. "Error" shall mean any failure of the Software as delivered by CanaimaSoft to conform to its published specifications during ordinary use in accordance with this Agreement.
Licensed Source Code. "Licensed Source Code" shall mean that portion of the Software's source code which is provided to Licensee in connection with this Agreement.
Linkable routines. "Linkable Routines" shall mean the object code routines in the Software libraries (e.g. *.LIB, lib*.a, *.DLL).
Software. "Software" shall mean the CanaimaSoft f90SQL components and documentation provided with this Agreement. Software consists of, without limitation, Linkable Routines, Distributable Files, non-distributable files, and Licensed Source Code for a particular Desktop Operating Environment. Any modifications or additions to the Software created by Licensee pursuant to the license granted hereunder shall belong solely to CanaimaSoft, and shall be considered part of Software pursuant to the license granted herein.
2. Development Rights.
(a) License.
Subject to the other provisions of this Agreement, including without limitation the payment by Licensee of all license fees, CanaimaSoft grants to Licensee a restricted, nonexclusive, nontransferable license (without the right to grant sublicenses) for one person (the Developer):
(i) to use the Software to develop Desktop Applications (as defined above);
(ii) to incorporate Linkable Routines and/or Distributable Files into Desktop Applications developed by Developer, provided that the Linkable Routines and/or Distributable Files have been incorporated in such a way that they cannot be used apart from the Desktop Applications;
(iii) to use Linkable Routines and/or Distributable Files as part of or with Desktop Applications, pursuant to the license granted hereunder but not separate from such Desktop Applications; and
(iv) to use the Licensed Source Code to maintain and modify the Software to conform with Licensee's needs in creating Desktop Applications.
(b) Restrictions
(i) Software. The Developer must obtain a license for at least one Desktop Operating Environment. The Software may be used by the Developer only on a single computer running under the Desktop Operating Environment designated on a license certificate or invoice for the Software. Licensee may not use the Software on more than one computer or Desktop Operating Environment at any given time unless an additional license for each additional computer and Desktop Operating Environment is purchased. Notwithstanding anything in this Agreement to the contrary, this license does not include, and Licensee has no right to install, use or copy, any Software not designated on a license certificate or invoice. If Licensee desires to use additional components of the Software, a license for such additional compnent must first be purchased from CanaimaSoft or its authorized reseller. Additional components for which a license is purchased shall be governed by this Agreement and shall be deemed part of the Software.
(ii) Other Restrictions. The Software is licensed on a per Developer basis. The Developer may not be changed, without the written consent of CanaimaSoft. Licenses for additional Developers must be purchased from CanaimaSoft or its authorized resellers. The foregoing license does not include any right to use the Software to develop any computer programs that are competitive with, or that can be used in lieu of, the Software. Rights not expressly granted to Licensee in this Agreement are reserved by CanaimaSoft. Licensee acknowledges that CanaimaSoft (and its licensor(s), if applicable) own the copyrights and other intellectual property in and to the Software.
3. Copies
Licensee may make copies of the Software provided that each such copy: (a) is created as an essential step in the utilization of the Software in accordance with this Agreement, or (b) is only for archival purposes to back-up the licensed use of the Software. Licensee may also make copies of the Software to the extent reasonably needed to exercise those rights described in Section 4 ("Distribution License"). All CanaimaSoft proprietary notices must be faithfully reproduced and included on copies made by Licensee. Licensee may not make any other copies of the Software. The online Documentation may be printed by Licensee and used by Licensee, but only in connection with the licensed use of the Software.
4. Distribution License
Subject to the other provisions of this Agreement, CanaimaSoft grants to Licensee a restricted, nonexclusive, nontransferable license (without the right to grant sublicenses) which includes the following distribution rights:
(a) authorization for Licensee to incorporate Linkable Routines into and/or distribute Distributable Files with Desktop Applications developed by Licensee and to distribute them as part of such Desktop Applications to Licensee's employer company, provided that (i) the Linkable Routines and/or Distributable Files have been incorporated in such a way that they cannot be used apart from the Desktop Applications, and (ii) the Desktop Applications developed by Licensee and incorporating the Linkable Routines and Distributable Files, are distributed to only one single company.
(b) authorization for Licensee to license Licensee's employer company and its employees to use such Linkable Routines and/or Distributable Files as part of the Desktop Applications, but not separate from such Desktop Applications.
5. Distribution Restrictions
Except for the Linkable Routines and Distributable Files, no portion of the Software may be distributed or transferred by Licensee. The Linkable Routines and Distributable Files may not be distributed as part of any computer program other than a Desktop Application as defined above without the express written permission of CanaimaSoft. Licensee must include an appropriate CanaimaSoft copyright notice, in accordance with guidelines published by CanaimaSoft from time to time, on all copies of Licensee's Desktop Applications in which Linkable Routines are incorporated or with which Distributable Files are distributed. Third parties who receive any Linkable Routines or Distributable Files as part of a Desktop Application under Section 4 ("Distribution License") may not use such Linkable Routines or Distributable Files for any development purposes. Licensee shall ensure that its agreements with such third parties are consistent with this Agreement and are no less protective of CanaimaSoft, its Affiliates and licensors as the restrictions listed in Sections 6 ("Protection of the Software"), 10 ("Disclaimer and Limited Liability"), 12b ("Distribution of Desktop Applications to U.S. Government End Users"), and 13 ("Export Laws").
6. Protection of the Software
Except as expressly authorized in this Agreement, Licensee may not: (a) disassemble, decompile or otherwise reverse engineer the Software, or (b) create derivative works based upon the Software, or (c) rent, lease, sublicense, distribute, transfer, copy, reproduce, or timeshare the Software, or (d) modify the Software (including any deletion of code from or addition of code to the Software) or (e) allow any third party to access or use the Software, or to do any of the foregoing. The Software is the valuable proprietary information of CanaimaSoft (or its licensor(s), if applicable), and may not be used or disclosed except as expressly permitted by this Agreement. The Licensed Source Code (whether modified or unmodified) may not be disclosed or distributed by Licensee to any other person.
7. Disclaimer Regarding Modified Software
CanaimaSoft and its Affiliates accept no responsibility or obligation to maintain or support modified versions of the Software and no warranties are applicable to such modified versions. There is no warranty that the Software is suitable for modification and all modifications are undertaken at the risk and discretion of Licensee.
8. Maintenance
(a) Provision of Maintenance. In the event that Licensee has agreed to receive Maintenance as indicated on a license certificate or invoice, and has paid all associated fees as invoiced by CanaimaSoft, Licensee shall be entitled to receive Maintenance as hereinafter described. For purposes of this Agreement, "Maintenance" shall consist of:
(i) The right of the Developer to contact CanaimaSoft by telephone or e-mail and to consult with CanaimaSoft regarding the installation, functions and operation of the unmodified Software;
(ii) The right of the Developer to contact CanaimaSoft by telephone or e-mail to consult with CanaimaSoft regarding Errors in the unmodified Software which Errors have been brought to CanaimaSoft's attention by the Developer;
(iii) The right to obtain from CanaimaSoft certain updates for the Software from time to time as such updates are made generally available by CanaimaSoft.
(b) Hours and Facilities. CanaimaSoft shall make Maintenance available only during CanaimaSoft 's normal business days and normal business hours.
(c) Limitations. Licensee must elect to receive Maintenance on either all or none of the Software, and may not elect to receive Maintenance on some Software and not on other Software. CanaimaSoft shall have no obligation to provide Maintenance for any modified Software or any Software which is not the most recent version or release or for which CanaimaSoft has provided updates which have not been applied by Licensee to the Software for a period of more than six (6) months from the date said updates were made generally available. Any failure of Licensee to pay all Maintenance fees as invoiced by CanaimaSoft shall, at CanaimaSoft 's sole option, immediately and permanently eliminate any obligation of CanaimaSoft to provide Maintenance hereunder.
9. Limited Warranty
(a) Media and Documentation. CanaimaSoft warrants that the media on which Software is delivered will be free from defects in materials or workmanship for a period of ninety (90) days from the date on which Licensee receives such media. If during the foregoing ninety (90) day warranty period the media on which Software is delivered proves to be defective and if it is returned to CanaimaSoft (postage prepaid), CanaimaSoft will repair or replace such media, at CanaimaSoft 's option, and as Licensee's sole remedy for any breach of warranty hereunder.
(b) Software. CanaimaSoft warrants the Software substantially conforms to the specifications in the Documentation and if the nonconformity is reported in writing by Licensee to CanaimaSoft within 90 days from the date the license is purchased, then CanaimaSoft shall either remedy the nonconformity or offer to refund the purchase price to Licensee upon a return of all copies of the Software (including all packaging, media, and Documentation) to CanaimaSoft. In the event of a refund, the Agreement shall terminate.
10. Disclaimer and Limited Liability
(a) Disclaimer of Warranties. OTHER THAN THE LIMITED WARRANTIES STATED ABOVE, CANAIMASOFT AND ITS AFFILIATES MAKE NO WARRANTY OF ANY KIND AND THE SOFTWARE IS LICENSED AND PROVIDED TO LICENSEE STRICTLY ON AN "AS IS" BASIS. CANAIMASOFT AND ITS AFFILIATES DISCLAIM AND EXCLUDE ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CANAIMASOFT AND ITS AFFILIATES DO NOT WARRANT THAT THE SOFTWARE WILL SATISFY LICENSEE'S REQUIREMENTS OR THAT IT IS WITHOUT DEFECT OR ERROR OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED.
(b) Limitation on Liability. CANAIMASOFT AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, INTERRUPTION OF BUSINESS, NOR FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER UNDER THIS AGREEMENT OR OTHERWISE, IRRESPECTIVE OF WHETHER CANAIMASOFT HAS ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF CANAIMASOFT OR ITS AFFILIATES HEREUNDER EXCEED THE TOTAL PAYMENT MADE BY LICENSEE TO PURCHASE THIS LICENSE.
11. Termination
The Agreement and all licenses granted by CanaimaSoft hereunder shall automatically terminate if Licensee materially breaches this Agreement. Upon termination of the Agreement, Licensee shall cease all use of the Software and shall destroy all copies of the Software within the possession or control of Licensee and shall return the original Software media and Documentation to CanaimaSoft. In the event of any termination of this Agreement, the provisions of Section 1 ("Definitions"), Section 10 ("Disclaimer and Limited Liability"), Section 11 ("Termination"), Section 13 ("Export Laws"), Section 14 ("Severability"), Section 15 ("Governing Law") and Section 16 ("Entire Agreement") shall survive and continue to bind the parties.
12. Government End Users
A "U.S. Government End User" shall mean any agency or entity of the government of the United States. The following shall apply:
(a) If Licensee is a U.S. Government End User. If Licensee is a U.S. Government End User, then this Subsection (a) shall apply. The Software is a "commercial item," as that term is defined in 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). 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 Software with only those rights set forth herein. The Software (including related documentation) is provided to U.S. Government End Users: (i) only as a commercial end item; and (ii) only pursuant to this Agreement.
(b) Distribution of Desktop Applications to U.S. Government End Users. When distributing or licensing a Desktop Application to a U.S. Government End User, Licensee shall identify the Software or modified Software in the Desktop Application as a "commercial item," as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), and more specifically shall be identified as "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), Licensee will provide the Software or modified Software in any Desktop Application (including related documentation) to U.S. Government End Users: (i) only as a commercial end item; and (ii) only pursuant to the end user license agreement used by Licensee to license the Desktop Application to the U.S. Government End User.
13. Export Laws
Licensee shall not export, disclose or distribute any Software in violation of any applicable laws or regulations, including the export laws and regulations of the United States.
14. Severability
If any provision in this Agreement is invalid or unenforceable or contrary to applicable law, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity or unenforceability or the conflict with applicable law, and all other provisions of this Agreement shall remain in effect.
15. Governing Law
This Agreement shall be governed by the laws of the State of California and the United States of America without giving effect to conflict or choice of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable and is rejected by the parties. The State and Federal Courts located in San Diego County, California, shall have sole jurisdiction over any disputes arising under this Agreement and the parties hereby submit to the jurisdiction of such courts.
16. Entire Agreement
This Agreement is the entire agreement between the parties regarding this subject matter and supersedes all prior discussions, negotiations, agreements, and the like. This Agreement may be modified only in writing signed by authorized representatives of both parties. No vendor, distributor, dealer, reseller, sales person or other person is authorized by CanaimaSoft to modify this Agreement or to make any warranty, representation or promise which is different than, or in addition to, the warranties, representations or promises of this Agreement. Any purported oral modification of this Agreement shall be void.