READ THIS END USER LICENSE AGREEMENT CAREFULLY. BY DOWNLOADING OR INSTALLING THE SOFTWARE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD OR INSTALL THE SOFTWARE AND RETURN IT TO THE VENDOR FROM WHICH IT WAS PURCHASED.
Upon your acceptance as indicated above, the following shall govern your use of the Software except to the extent all or any portion of the Software (a) is subject to a separate written agreement, or (b) is provided by a third party under the terms set forth in an Addenda at the end of this Agreement, in which case the terms of such addenda shall control over inconsistent terms with regard to such portion(s).
License Grant. The Software is the property of TIBCO or its licensors and is protected by copyright and other laws. While TIBCO continues to own the Software, TIBCO hereby grants to Customer a limited, non-transferable, non-exclusive, license to use the Number of Units set forth in the Ordering Document, in machine-readable, object code form and solely for Customer's internal business use.
Restrictions. Customer agrees not to (a) make more copies than the Number of Units plus a reasonable number of backups; (b) provide access to the Software to anyone other than employees, contractors, or consultants under written contract with Customer agreeing to be bound by terms at least as protective of TIBCO as those in this End User License Agreement ("
Authorized Users"); (c) sublicense, transfer, assign, distribute to any third party, pledge, lease, rent, or commercially share the Software or any of Customer's rights under this Agreement (for the purposes of the foregoing a change in control of Customer is deemed to be an assignment); (d) use the Software for purposes of providing a service bureau, including, without limitation, providing third-party hosting, or third-party application integration or application service provider-type services, or any similar services; (e) use the Software in connection with ultrahazardous activities, or any activity for which failure of the Software might result in death or serious bodily injury to Customer or a third party; or (f) directly or indirectly, in whole or in part, modify, translate, reverse engineer, decrypt, decompile, disassemble, make error corrections to, create derivative works based on, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software.
Beta and Evaluation Licenses. Notwithstanding the foregoing, if the Software is being provided for demonstration, beta testing, or evaluation purposes, then Customer agrees (a) to use the Software solely for such purposes, (b) that the Software will not be used or deployed in a production or development environment, and (c) that such use shall automatically terminate upon the earlier of thirty days from the date Customer receives the right to install the Software, or Customer's receipt of notice of termination from TIBCO.
Technical Support. Provided Customer has paid applicable support fees (not included with Software fees unless separately listed), TIBCO shall provide support for generally available Software ("
Maintenance") on an annual basis commencing on the Purchase Date. Thereafter Maintenance will be automatically renewed for successive one (1) year terms at the then current rates. Customer shall designate at TIBCO's support website
https://support.tibco.com/eSupport/newuser.html, the number of authorized contacts as permitted by TIBCO based on the level of Maintenance purchased (contacts are changeable upon 48-hours prior written notice to TIBCO). Each contact may contact TIBCO for problem resolution during TIBCO's published support hours corresponding to the level of Maintenance purchased.
Upon notice from a contact of a Software problem which can be reproduced at a TIBCO Maintenance facility, TIBCO shall use reasonable efforts to correct or circumvent the problem according to its published maintenance objectives. TIBCO reserves the right to make changes only to the most currently available version. TIBCO will use reasonable efforts to support the previously released version of the Software for a maximum of six months.
Maintenance Fees for lapsed Maintenance or the changing of the level of Maintenance shall be mutually agreed upon between Customer and TIBCO. Upgrades, patches, enhancements, bug fixes, new versions and/or new releases of the Software provided from time to time under Maintenance shall be used only as replacements to existing copies, and shall not be deemed to increase the Number of Units, and use thereof shall be governed by the terms of this Agreement, except for the first paragraph of the Limited Warranty and any right of return or refund.
Services. Customer may request additional services ("
Services") either in an Ordering Document, or by a separate mutually executed work order, statement of work or other work-request document incorporating the term of this End User License Agreement (each, a "
Work Order"). Unless otherwise expressly agreed to in a Work Order, all Services and any work product therefrom shall be (a) performed on a time and materials basis, plus meals, lodging, travel, and other expenses reasonably incurred in connection therewith, (b) deemed accepted upon delivery, and (c) exclusively owned by TIBCO (except for Confidential Information of Customer), including all right, title and intellectual property or other right or interest therein. Each Work Order is intended to constitute an independent and distinct agreement of the parties, notwithstanding that each shall be construed to incorporate all applicable provisions of this End User License Agreement. Fees for Services shall be due and payable in United States dollars net 30 from the date of TIBCO's invoice.
Limited Warranty. If Customer obtained the Software directly from TIBCO, then TIBCO warrants that for a period of thirty (30) days from the Purchase Date: (i) the media on which the Software is furnished will be free of defects in materials and workmanship under normal use; and (ii) the Software will substantially conform to its Documentation. This limited warranty extends only to the original Customer hereunder. Customer's sole and exclusive remedy and the entire liability of TIBCO and its licensors under this limited warranty will be, at TIBCO's option, repair, replacement, or refund of the Software and applicable Maintenance fees, in which event this End User License Agreement shall terminate upon refund thereof.
This warranty does not apply to any Software which (a) is licensed for beta, evaluation, testing or demonstration purposes for which TIBCO does not receive a license fee, (b) has been altered or modified, except by TIBCO, (c) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by TIBCO, (d) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident, or (e) is used in violation of any other term of this End User License Agreement. Customer agrees to pay TIBCO for any Maintenance or Services provided by TIBCO related to a breach of the foregoing on a time, materials, travel, lodging and other reasonable expenses basis. If Customer obtained the Software from a TIBCO reseller or distributor, the terms of any warranty shall be as provided by such reseller or distributor, and TIBCO provides Customer no warranty with respect to such Software.
EXCEPT AS SPECIFIED IN THIS LIMITED WARRANTY, THE SOFTWARE, MAINTENANCE AND SERVICES ARE PROVIDED "AS IS", ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. CERTAIN THIRD PARTY SOFTWARE MAY BE PROVIDED TO CUSTOMER ALONG WITH CERTAIN TIBCO SOFTWARE AS AN ACCOMMODATION TO CUSTOMER. THIS THIRD PARTY SOFTWARE IS PROVIDED "AS IS". CUSTOMER MAY CHOOSE NOT TO USE THIRD PARTY SOFTWARE PROVIDED AS AN ACCOMMODATION BY TIBCO. NO WARRANTY IS MADE REGARDING THE RESULTS OF ANY SOFTWARE, MAINTENANCE OR SERVICES OR THAT THE SOFTWARE WILL OPERATE WITHOUT ERRORS, PROBLEMS OR INTERRUPTIONS, OR THAT ERRORS OR BUGS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE'S FUNCTIONALITY, MAINTENANCE OR SERVICES WILL MEET CUSTOMER'S REQUIREMENTS. NO TIBCO DEALER, DISTRIBUTOR, AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS OR ADDITIONS TO THIS WARRANTY.
Indemnity. If Customer obtained the Software from TIBCO directly, then TIBCO agrees at its own expense to defend or, at its option, to settle, any claim or action brought against Customer to the extent it is based on a claim that the unmodified Software infringes any patent issued by the United States, Canada, Australia, Japan, or any member of the European Union, or any copyright, or any trade secret of a third party; and TIBCO will indemnify and hold Customer harmless from and against any damages, costs and fees reasonably incurred (including reasonable attorneys' fees) that are attributable to such claim or action and which are assessed against Customer in a final judgment; provided that TIBCO is promptly notified in writing of such claim, TIBCO has the exclusive right to control such defense and/or settlement, and Customer shall provide reasonable assistance (at TIBCO's expense) in the defense thereof. In no event shall Customer settle any claim, action or proceeding without TIBCO's prior written approval. In the event of any such claim, litigation or threat thereof, TIBCO, at its sole option and expense, shall (a) procure for Customer the right to continue to use the Software or (b) replace or modify the Software with functionally equivalent software. If such settlement or modification is not commercially reasonable (in the reasonable opinion of TIBCO), TIBCO may cancel this End User License Agreement upon sixty days prior written notice to Customer, and refund to Customer the unamortized portion of the license fees paid to TIBCO by Customer based on a five-year straight-line depreciation. This Section states the entire liability of TIBCO with respect to the infringement of any intellectual property rights, and Customer hereby expressly waives any other liabilities or obligations of TIBCO with respect thereto. The foregoing indemnity shall not apply to the extent any infringement could have been avoided by use of the then-current release.
Limitation of Liability. EXCEPT AS PROVIDED UNDER INDEMNITY OR RESULTING FROM A BREACH OF CONFIDENTIALITY (THE "
EXCLUDED MATTERS"), IN NO EVENT WILL EITHER PARTY OR TIBCO'S LICENSORS BE LIABLE FOR ANY LOST DATA, LOST REVENUE, LOST PROFITS, DAMAGE TO REPUTATION, BUSINESS INTERRUPTION, OR ANY OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR ANY SIMILAR TYPE DAMAGES ARISING OUT OF THIS AGREEMENT, THE USE OR THE INABILITY TO USE THE SOFTWARE, OR THE PROVISION OF ANY MAINTENANCE OR SERVICES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE EXCLUDED MATTERS, IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER, WHETHER IN CONTRACT, TORT (INCLUDING ACTIVE OR PASSIVE NEGLIGENCE), BREACH OF WARRANTY, CLAIMS BY THIRD PARTIES OR OTHERWISE, EXCEED THE PRICE PAID BY CUSTOMER UNDER THE APPLICABLE ORDERING DOCUMENT.
THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE ABOVE-STATED REMEDY OR LIMITED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER.
Confidentiality. "
Confidential Information" means the terms of this End User License Agreement; all information marked by the disclosing party as proprietary or confidential; any provided software, related documentation or related performance test results derived by Customer; and any methods, concepts or processes utilized in provided software or related documentation. Confidential Information shall remain the sole property of the disclosing party and shall not be disclosed to any non-Authorized User of either TIBCO or Customer without the prior written consent of the disclosing party. If Confidential Information is communicated orally, such communication shall be confirmed as "Confidential" in writing within thirty days of such disclosure. The parties agree to protect the Confidential Information of the other in the same manner it protects the confidentiality of similar information and data of its own (and at all times exercising at least a reasonable degree of care). Except with respect to the Software, items will not be deemed Confidential Information if (i) available to the public other than by a breach of an agreement with TIBCO, (ii) rightfully received from a third party not in breach of any obligation of confidentiality, (iii) independently developed by one party without use of the Confidential Information of the other; (iv) known to the recipient at the time of disclosure (other than under a separate confidentiality obligation); or (v) produced in compliance with applicable law or court order, provided the other party is given reasonable notice of the same. Both parties agree to indemnify the other for any damages the other may sustain resulting from their unauthorized use and/or disclosure of the other's Confidential Information. Such damages shall include reasonable expenses incurred in seeking both legal and equitable remedies. To the extent required by law, at Customer's request, TIBCO shall provide Customer with the interface information needed to achieve interoperability between the Software and another independently created program, on payment of TIBCO's applicable fee. Customer agrees to observe obligations of confidentiality with respect to such information.
Export. Software, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such regulations and agrees to obtain all necessary licenses to export, re-export, or import Software.
Government Use. If the Customer is an agency, department, or other entity of the United States Government ("
Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software, or any related documentation of any kind, including technical data or manuals, is restricted in accordance with Federal Acquisition Regulation ("
FAR") 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement ("
DFARS") 227.7202 for military agencies. The Software is commercial computer software and commercial computer software documentation. Use of the Software and related documentation by the Government is further restricted in accordance with the terms of this Agreement, and any modification thereto.
Orders. An Ordering Document shall be deemed accepted only by issuance of a TIBCO invoice and solely for purposes of administrative convenience. None of the terms of the Ordering Document (other than the Software product name, Number of Units, level of Maintenance, description of Services, and fees due in connection therewith) shall apply for any reason or purpose whatsoever, regardless of any statement on any Ordering Document to the contrary, unless countersigned by an officer of TIBCO. This Agreement constitutes the entire agreement between the parties with respect to the use of the Software, Maintenance and Services, and supersedes all proposals, oral or written, and all other representations, statements, negotiations and undertakings relating to the subject matter hereof. All orders of Software, Maintenance or Services by Customer to TIBCO shall be deemed to occur with or without reference to, under the terms of this End User License Agreement, unless expressly superseded by a signed written agreement between the parties. Software shall be delivered electronically, and such delivery shall be deemed complete when the Software is made available for download by Customer.
Term and Termination. Maintenance or Services may be terminated: (a) by either party upon a default of the other, such default remaining uncured for fifteen days from written notice from the non-defaulting party; (b) upon the filing for bankruptcy or insolvency of the other party, (c) by either party upon prior written notice at least ninety (90) days prior to the end of any annual Maintenance term; or (d) by Customer (for Services), upon ten days prior written notice. Termination of Maintenance or Services shall not terminate this End User License Agreement. Customer may terminate this End User License Agreement in its entirety at any time by destroying all copies of the Software. Upon termination of this End User License Agreement in its entirety, for any reason, Customer must cease using and return or destroy all copies of the Software. Customer's obligation to pay accrued charges and any fees due as of the date of termination, as well as the sections entitled "Confidentiality", "Limited Warranty" and "Limitation of Liability" shall survive any such termination.
Authority. You hereby represent and warrant that you have full power and authority to accept the terms of this End User License Agreement on behalf of Customer, and that Customer agrees to be bound by this End User License Agreement.
General. Fees on the Ordering Document (all to be paid on the latter of thirty days from Invoice by TIBCO or the date set forth in the Ordering Document) do not include sales, use, withholding, value-added or similar taxes, and Customer agrees to pay all sales, use, value-added, goods and services, consumption, withholding, excise and any other similar taxes or government charges, exclusive of TIBCO's income tax. Customer agree to pay all reasonable costs incurred (including reasonable attorneys' fees) in collecting past due amounts. Except as set forth in the Section entitled "Limited Warranty" all fees paid under or in connection with this End User License Agreement are non-refundable and no right of set-off exists. All payments of fees due shall be made in U.S. dollars, net 30 from Purchase Date, or, for any other amounts coming due hereafter, net 30 from TIBCO's invoice. A service charge of one and one-half percent per month will be applied to all invoices that are not paid on time. No delay in the performance of any obligation by either party, excepting all obligations to make payment, shall constitute a breach of this End User License Agreement to the extent caused by force majeure. Customer hereby grants TIBCO and its independent auditors the right to audit Customer's compliance with this End User License Agreement. If any portion of this End User License Agreement is found to be void or unenforceable, the remaining provisions shall remain in full force and effect. This End User License Agreement shall be governed by and construed in accordance with the laws of the State of California, United States of America, as if performed wholly within the state and without giving effect to the principles of conflict of law. The United Nations Convention on Contracts for the International Sale of Goods is excluded from application hereto. If any portion hereof is found to be void or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
Definitions. In connection with this End User License Agreement the following capitalized terms shall have the following meaning: "
Connection" means for TIBCO SmartSockets and TIBCO SmartMQ, any network protocol link established with such Software (directly or indirectly) to any other entity, including but not limited to software, firmware or hardware; "
Connected Processor" means a Processor that produces information or messages consumed by the relevant Software (excluding Processors on devices such as routers, switches, proxies, HTTP or application servers configured to substantially pass-through information or messages to TIBCO Software); "
Customer" means the original purchaser or licensee of the Software and any permitted successors and assigns; "
Developer" means a Named User of a TIBCO Software product for use only in Non-Production; "
Documentation" means text material that accompanies the TIBCO Software on delivery; "
Enterprise" means an unlimited Number of Units of the TIBCO Software set forth in an Ordering Document, deployed by Customer for a period of
one (1) year (unless otherwise set forth in an Ordering Document) from the Effective Date (the "
Enterprise Term"), at which time, the Number of Units then deployed in Production and Non-Production use by Customer becomes fixed and Customer may not thereafter deploy additional Units. During the Enterprise Term, Customer's right to deploy an unlimited Number of Units does not extend to any entity which acquires, is acquired by, merged into, or otherwise combined with Customer. Customer hereby agrees to provide TIBCO, within sixty (60) days after the end of the Enterprise Term, with written notice of the Number of Units deployed at the end of the Enterprise Term by License Type, Platform and Unit; "
License Type" means the environment in which the TIBCO Software may be used (including without limitation, Production, Non-Production); "
MSU" means Millions of Service Units per hour, based on the then current MSU rating established by IBM for IBM and IBM compatible hardware which is used for software pricing (not necessarily a direct indication of relative processor capacity) as set forth in IBM's generally available Large System Performance Reference; "
Named User" means an identifiable individual, not necessarily named at the time of a license grant, designated by Customer to access the TIBCO Software, regardless of whether or not the individual is actively using the TIBCO Software at any given time; "
Non-Production" means a non-operational environment into which the TIBCO Software may be installed, which is not processing live data, which is not running any operations of the Customer and which has not been deployed to permit any users to access live data. Non-Production environments include development, cold back-up, high availability, hot standby, and test environments; "
Number of Units" means the cumulative number of copies of TIBCO Software licensed for use by type of Unit as set forth in this Agreement, or in an Ordering Document, and including, if applicable, as reported by Licensee upon expiration of a Project or Enterprise Term; "
Ordering Document" means any purchase order or similar document or agreement requesting Software, Maintenance or Services; "
Platform" means the operating system set forth in an Ordering Document; "
Processor" means a central processing unit ("
CPU") on which the TIBCO Software is licensed to run and which for the purposes of counting Processors on multicore chips, the number of Processors is the number of CPUs times the number of cores multiplied by .75.; "
Processor Source Locked" means the number of connections to a single database made possible by (or licensed for) the relevant TIBCO Software regardless of how many Processors are used by the system or environment which is accessing the database; "
Production" means an operational environment into which the licensed TIBCO Software has been installed, which is processing live data and which has been deployed so that the intended users of the environment are able to access the live data; "
Project" means an unlimited Number of Units for the License Type listed in this Agreement, to be deployed by Customer solely in connection with the undertaking described under an Ordering Document for a period of
one (1) year (unless otherwise set forth in this Agreement) from the Effective Date (the "
Project Term"), at which time, the Number of Units then deployed in Production and Non-Production use by Customer becomes fixed and Customer may not thereafter deploy additional Units. During the Project Term, Customer's right to deploy an unlimited Number of Units does not extend to any entity which acquires, is acquired by, merged into, or otherwise combined with Customer. Customer hereby agrees to provide TIBCO, within sixty (60) days after the end of the Project Term, with written notice of the Number of Units deployed at the end of the Project Term by Unit and License Type. "
Purchase Date" means the date of the Ordering Document is accepted by TIBCO; "Server Instance" means a computer with 1 CPUs (unless otherwise specified in the Agreement) performing common services for multiple other machines; "
Software" means the most current generally available object code version (as of the Purchase Date) of the software products listed in an Ordering Document (except as provided for beta or evaluation licenses), in whole and in part, including its Documentation; "
Third Party Software" means third-party software identified by its company and/or product name, the provision of which by TIBCO is made solely as an accommodation and in lieu of Customer purchasing a license to Third Party Software directly from the third party vendor; "Trading Partner" means an entity or individual with which the Licensee engages in electronic commerce by means of TIBCO Software in accordance with this Agreement; "
Unit" means a license restriction describing the manner in which a copy (or multiple copies) of the TIBCO Software may be deployed (including, without limitation, Processor, Named User, Connected Processor, and Processor Source Locked) and is the mechanism used to determine the Number of Units licensed pursuant to an Ordering Document.
Special Product Provisions.
TIBCO BusinessPartner: Customer may sublicense to third parties ("
Partners") up to the total Number of Copies of TIBCO BusinessPartner, provided that for every such sublicense, the Number of Copies Customer is licensed to use shall be reduced by the same number, and provided further that prior to delivery of TIBCO BusinessPartner to a Partner, such Partner agrees in writing (a) to be bound by terms and conditions at least as protective of TIBCO as the terms of this Agreement, (b) that TIBCO BusinessPartner be used solely to communicate with Customer's implementation of TIBCO BusinessConnect, and (c) for such Partner to direct all technical support and Maintenance questions directly to Customer. Customer agrees to keep records of the Partners to which it distributes TIBCO BusinessPartner, and to provide TIBCO the names thereof (with an address and contact name) within sixty days of the end of each quarter.
Embedded/Bundled Products. Some TIBCO Software embeds or bundles other TIBCO Software (e.g., TIBCO InConcert bundles TIBCO Rendezvous). Use of such embedded or bundled TIBCO Software is solely to enable the functionality of the TIBCO Software licensed on the Cover Page, and may not be used or accessed by any other TIBCO Software, or for any other purpose.
Open Source Software: If Customer uses Open Source software in conjunction with the TIBCO Software, Customer must ensure that its use does not: (i) create, or purport to create, obligations of use with respect to the TIBCO Software; or (ii) grant, or purport to grant, to any third party any rights to or immunities under TIBCO's intellectual property or proprietary rights in the TIBCO Software. You also may not combine the TIBCO Software with programs licensed under the GNU General Public License ("
GPL") in any manner that could cause, or could be interpreted or asserted to cause, the TIBCO Software or any modifications thereto to become subject to the terms of the GPL.
NOTICE: Included with the TIBCO Software is certain source and/or object code software developed and licensed by third parties ("Third Party Software"). Third Party Software is licensed and supported exclusively under the terms and conditions of the license terms which accompany such Third Party Software, as set forth below or in the back of the manual which accompanies the Software.
Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
2. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.
3. The end-user documentation included with the redistribution, if any, must include the following acknowlegement:
"This product includes software developed by the Apache Software Foundation (http://www.apache.org/)."
Alternately, this acknowlegement may appear in the software itself, if and wherever such third-party acknowlegements normally appear.
4. The names "The Jakarta Project", "Struts", and "Apache Software Foundation" must not be used to endorse or promote products derived from this software without prior written permission. For written permission, please contact apache@apache.org.
5. Products derived from this software may not be called "Apache" nor may "Apache" appear in their names without prior written permission of the Apache Group.
THIS SOFTWARE IS PROVIDED ``AS IS'' AND ANY EXPRESSED OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE APACHE SOFTWARE FOUNDATION OR ITS CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
This software consists of voluntary contributions made by many individuals on behalf of the Apache Software Foundation. For more information on the Apache Software Foundation, please see <http://www.apache.org/>.
Copyright © 1998 Netscape Communications Corporation. All Rights Reserved. Permission to use, copy, modify and distribute this software and sample code included in its documentation (collectively, the "PROGRAM") for any purpose is hereby granted without fee, provided that the above copyright notice and this document appear in all copies and in supporting documentation.
THE PROGRAM IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES THAT THE PROGRAM IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD ANY PART OF THE PROGRAM PROVE DEFECTIVE IN ANY RESPECT, YOU (NOT NETSCAPE) ASSUME THE COST OF ANY NECESSARY SERVICING, REPAIR OR CORRECTION. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS LICENSE. NO USE OF THE PROGRAM IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
Trademarks and Logos / Distribution of Modified Versions. You are not granted any rights with respect to Netscape's trademarks and logos, even if they are included in the PROGRAM. If you wish to distribute or demonstrate a modified version of the PROGRAM, you must first (1) remove all Netscape trademarks including the ''Netscape N and horizon'' logo, the trademark ''Netscape'' and the Netscape lighthouse logo (if present) from your modified version, and (2) nclude this document, with an added statement at the top of the document indicating that the PROGRAM has been modified by you and describing the modifications.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, SHALL NETSCAPE OR ITS SUPPLIERS, BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF SUCH PARTY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM SUCH PARTY'S NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. YOU ARE SOLELY RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF ANY CHANGES OR CONTENT PROVIDED BY YOU.
Government Users. The PROGRAM 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 Program with only those rights set forth herein.
"License" shall mean the terms and conditions for use, reproduction, and distribution as defined by Sections 1 through 9 of this document.
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"Work" shall mean the work of authorship, whether in Source or Object form, made available under the License, as indicated by a copyright notice that is included in or attached to the work (an example is provided in the Appendix below).
"Derivative Works" shall mean any work, whether in Source or Object form, that is based on (or derived from) the Work and for which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship. For the purposes of this License, Derivative Works shall not include works that remain separable from, or merely link (or bind by name) to the interfaces of, the Work and Derivative Works thereof.
"Contribution" shall mean any work of authorship, including the original version of the Work and any modifications or additions to that Work or Derivative Works thereof, that is intentionally submitted to Licensor for inclusion in the Work by the copyright owner or by an individual or Legal Entity authorized to submit on behalf of the copyright owner. For the purposes of this definition, "submitted" means any form of electronic, verbal, or written communication sent to the Licensor or its representatives, including but not limited to communication on electronic mailing lists, source code control systems, and issue tracking systems that are managed by, or on behalf of, the Licensor for the purpose of discussing and improving the Work, but excluding communication that is conspicuously marked or otherwise designated in writing by the copyright owner as "Not a Contribution."
"Contributor" shall mean Licensor and any individual or Legal Entity on behalf of whom a Contribution has been received by Licensor and subsequently incorporated within the Work.
2. Grant of Copyright License. Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable copyright license to reproduce, prepare Derivative Works of, publicly display, publicly perform, sublicense, and distribute the Work and such Derivative Works in Source or Object form.
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