END-USER EVALUATION LICENSE AGREEMENT FOR OC Systems Software Product: RootCause Transaction Instrumentation herein referred to as RTI.
IMPORTANT: READ CAREFULLY!
This OC Systems Software License Agreement ("SLA") is a legal agreement between you, the "Licensee" and OC Systems, Inc. ("OCS") the "Licensor", for use of the Software Product "RTI" as defined below.
Installing this software from media or downloaded files by you indicates your acceptance as Licensee of these terms and conditions. If Licensee does not agree with them, Licensee should return the unopened package and all other documentation within 15 days and Licensee's money will be refunded.
OC Systems, Incorporated ("Licensor") or "OCS" and the Licensee agree as follows:
1.0 DEFINITIONS
1.1 "Target Application" shall mean be the software to which RTI is being applied.
1.2 "RTI" shall mean the shared libraries and software to instrument and collect data from the "Target Application" and the User Interface software used to define and view the collected data.
1.3 "Product" shall have the same meaning as RTI.
1.3 "Target Application Environment" shall mean the computer or network on which the Target Application executes"
1.4 Documentation shall mean all documentation accompanying RootCause
including but not limited to the RootCause User's Guide and Aprobe
User's Guide in any form, on-line or printed.
2.0 GRANT OF LICENSE
2.1 Non-Commercial Evaluation License. OCS grants to Licensee and Licensee hereby accepts one (1) non-exclusive, revocable, and non-transferable software evaluation license to RTI restricted to non-commercial evaluation use only. This license grant is provided in consideration for Licensee’s evaluation of the RTI and agreement to abide by the terms of this Agreement.
2.2 No Commercial Use Permitted. Licensee acknowledges and agrees that no commercial use of RTI is permitted under this license. Commercial use of RTI includes: any sale, license or distribution of the software for money or economic benefit; consulting services performed for pay utilizing the software; incorporation of some or all of the software into a commercial software product including derivative; and distribution of the software under claim of authorship or ownership.
2.3 Limited Copying Permitted. Except as prohibited in Section 2.2 above, Licensee is permitted to make copies of the software only as necessary to evaluate the software. No other copying of RTI is permitted under this license.
2.4 Obtaining a Commercial Use License. Licensee acknowledges that Licensee
may purchase a commercial license to RTI from OCS
3.0 NO OTHER COPYRIGHT, BACK-UP, AND TRANSFER RIGHTS CONVEYED
3.1 Licensee agrees that it shall not, nor authorize anyone else to, disassemble, reverse engineer or otherwise decompile or translate any part or all of the Java classes or object code provided as RTI. Licensee shall not modify the Product under any circumstances and Licensee has no right to authorize anyone else to modify, disassemble, or make any copies of the Product.
3.2 Licensee shall be permitted to make copies of the RTI provided that all copies shall be made solely for evaluation and backup purposes only.
3.3 Licensee's rights in the Product are expressly limited to the rights as set forth in this Agreement. The Product shall at all times remain the property of OCS or its Licensors in whole and in part and Licensee shall have no right, title or interest therein, except as provided in this Agreement.
3.4 Licensee acknowledges that the Product is copyrighted and licensed (not sold) by OCS, or one of its Licensors.
4.0 TERM AND TERMINATION
4.1 The license is effective until terminated. Licensee may terminate the license at any time by giving written notice to OCS, effective as of the date of mailing of said notice. The license will also terminate if Licensee fails to comply with any material term or condition of this Agreement and fails to cure the same within thirty (30) days. Licensee agrees that within thirty (30) days after the termination of this Agreement, Licensee shall destroy or return to OCS the original Product and all copies of the RTI in its possession and certify in writing to OCS, that through its best efforts, and to the best of its knowledge, the original RTI and all copies of RTI in its possession have been returned or destroyed, except that Licensee may keep a copy of the Product in its archives.
Termination of this license for any reason shall not be the basis
of a claim of reimbursement.
5.0 NO WARRANTY WITH EVALUATION LICENSE
5.1 OCS provides no warranty whatsoever with this evaluation license. Licensee agrees that OCS shall not be liable for any damages or deficiencies resulting use of RTI for evaluation purposes. Licensee also acknowledges that Licensee may obtain a limited express warranty by purchase a Commercial License from OCS.
6.0 DISCLAIMER OF ALL WARRANTIES
6.1 Products provided under this agreement may contain or be derived from portions of materials provided by a third party under license to Licensor. OCS and any said third parties disclaim all warranties, either express or implied, with respect to the use of such materials in connection with products including (without limitation) any IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The express warranties and remedies provided in a Commercial License which may be purchased from OCS are in lieu of all other liabilities or obligations of OCS and/or any said third parties (whether such liabilities or obligations would arise under this Agreement or otherwise by operation of law) for damages arising out of or in connection with the delivery, use or performance of the Product in the form delivered.
7.0 LIMITATION OF LIABILITY
7.1 In no event shall OCS and/or any third party providers of materials under license to Licensor be liable under any legal theory for any damages, including, but not limited to, direct, indirect, special, incidental or consequential damages (including, but not limited to, lost profits or anticipated savings) arising out of the use of or inability to use such Product, even if OCS and/or said third parties have been advised of the possibility of such damages.
8.0 GOVERNMENT AND GOVERNMENT CONTRACTOR LICENSEES
8.1 If Licensee is any unit or agency of the United States Government,
or a contractor which will or may supply the Product to any unit
or agency of the United States Government, Licensee agrees that:
(a) The Product is "Commercial Computer Software" as that term is
defined in DoD FAR Supplement 252.227-7013 (a)(1), and in any
corresponding DAR and ASPR clauses; (b) OCS represents to Licensee
that the Product is developed at private expense, and no part of
it was developed with government funds; (c) The government's use
of the Product is subject to "Restricted Rights" as that term is
defined in DoD FAR Supplement 252.227-7013 (c)(1)(ii); (d) OCS
represents that the Product may be deemed a trade secret of OCS
for all purposes including for the purpose of the Freedom Of
Information Act; (e) Each copy of the Product supplied to the
government or to another government contractor will also bear
and/or have affixed near it the restricted rights legend.
9.0 PURCHASING A COMMERCIAL LICENSE
9.1 Licensee may purchase a Commercial License for the Product from OCS. A Commercial License is priced according to the projected number of users of the Product by the Licensee, the number of Target Execution Environments, or based upon projected revenues to Licensee from exploitation of the product. Such projections shall be stated on the Purchase order issued by Licensee along with the name of the Project or Organization using the Product.
9.2 A Commercial License permits commercial exploitation of RTI by Licensee in accordance with the terms of that license.
9.3 Licensee my purchase a Commercial License to RTI from OCS by submitting a purchase order to OCS at: OC Systems Inc., 9990 Fairfax Blvd, Suite 270, Fairfax, VA, 22030 ATTN: Contracts.
9.4 A Project License does not permit use of the Product for Projects
other than that specified in the Purchase Order.
10.0 PAYMENTS
11.1 This Non-commercial Evaluation Software License is granted for free. Therefore, no payments are required under this Agreement. Payments for a Commercial License shall be as provided in that license agreement.
11.0 INDEMNIFICATION FOR PATENT AND COPYRIGHT INFRINGEMENT
11.1 OCS shall defend Licensee against suits arising from any valid
claim that the Product in the form delivered infringes or
violates any patent, copyright, or trademark registered by a
third party in the United States of America, Canada, or any
member of the European Economic Community, or any member of the
European Free Trade Association. Licensor shall have no liability
for any above mentioned claim based upon the use of other than
the current, unaltered version of the Product available from
Licensor if such infringement would have been avoided by the use
of a current unaltered version of the Product.
12.0 EXPORT REGULATIONS
12.1 Licensee acknowledges that certain Government Export Regulations prohibit, except under a special validated license, the exportation of technical data relating to certain commodities unless the exporter has received certain written assurances from the foreign importer. Licensee hereby agrees with and gives its assurance to Licensor that Licensee will not knowingly, unless prior authorization as may be required from any relevant governmental agency is obtained, re-export, directly or indirectly, any technical data, or direct by-product thereof, received from Licensor under this Agreement and will not export directly the Licensed Programs, or any products incorporating the Licensed Programs to any country restricted under any governmental regulation. Licensor makes no representations that a license is not required or that, if required, it will be issued by any requisite governmental agency.
13.0 GENERAL
13.1 This Agreement will be governed by the laws of the Commonwealth of Virginia. If any term, provision, or portions thereof, of this Agreement shall be found to be illegal or unenforceable, then, notwithstanding, the remaining provisions of this Agreement shall remain in full force and effect and such term or provision shall be deemed stricken. Furthermore, failure of Licensor to enforce any term, provision, or portions thereof, of this Agreement shall not void the remainder of this Agreement.
13.2 Any notices to Licensor or other communications required or permitted hereunder shall be sufficiently given when delivered by hand and acknowledged thereof, or sent by certified mail, postage prepaid, addressed as follows: OC Systems Inc., 9990 Fairfax Blvd, Suite 270, Fairfax, VA, ATTN: Contracts.
13.3 Licensee acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms and conditions. Licensee further agrees that it is the complete and exclusive statement of the agreement between the parties and except as permitted herein supersedes any proposal or prior agreement, oral or written, and any other communications between the parties relating to the subject matter of this Agreement.
13.4 No modification, addition to or waiver of any right, obligation or default under this Agreement shall be effective unless in writing and signed by both parties.
13.5 This Agreement shall be binding upon and inure to the benefit of the parties hereto and the successors to substantially the entire business and assets of the respective parties hereto. Licensee shall not otherwise assign this Agreement without the prior written consent of OCS. OCS shall not unreasonably withhold such consent.
13.6 Licensee acknowledges that the provisions of Sections 2.2, 3, 4, 5, 6, 7, 8, 9, 11, and 12, survive the expiration or prior termination of this Agreement.
13.7 Licensee is responsible for payment of any taxes, including personal property taxes, resulting from this license.