ICECOOL SOFTWARE LICENSE AGREEMENTIceCool DbDir v0.1 Release
USE OF SOFTWARE ORDERED OR DOWNLOADED FROM ICECOOL IS PERMITTED ONLY UNDER LICENSE WITH IceCool. PLEASE READ THE FOLLOWING LICENSE CAREFULLY. ANY USE OF THIS SOFTWARE CONSTITUTES ACCEPTANCE OF THIS LICENSE. WHEN DOWNLOADING THIS SOFTWARE INDICATE YOUR ACCEPTANCE BY USE OF THE ACCEPTANCE BUTTON.
1. LICENSE TERMS.
1(a) Evaluation Use. The terms of this Section 1(a) are applicable to you if you are an Evaluation Customer. Subject to the terms of this Agreement, IceCool.com. ("IceCool") grants to you a non-exclusive, non-transferable, license to use the evaluation version of the IceCool Software (the "Software"), in binary object code form for evaluation and trial purposes only. You may use any third party software products or modules supplied by IceCool solely with the Software, unless the licensing terms of the third party software products or modules specify otherwise. You may not disclose the results of software performance benchmarks to any third party without IceCool's prior written consent. This license begins upon downloading and ends thirty (30) days thereafter (the "Evaluation Period"). When the license expires you must stop using the Software. You are forbidden from using the Software for Production Use or offering it for resale under the terms of this Section 1(a). All rights not specifically granted to you herein are retained by IceCool.
1(b) Development Use License. The terms of this Section 1(b) are applicable to you if you are a Development Use Customer. Subject to the terms of this Agreement, IceCool.com. ("IceCool") grants to you a non-exclusive, non-transferable, fee-bearing license to use the Software in object code form solely for Development Use for the number of users and the number of CPUs and at the Sites, all as specified on Licensee's invoice. You may use any third party software products or modules supplied by IceCool solely with the Software, unless the licensing terms of the third party software products or modules specify otherwise. You may not disclose the results of software performance benchmarks to any third party without IceCool's prior written consent. Additional restrictions with respect to third party software, if any, will be delivered to you along with your license key. You are forbidden from using the Software for Production Use or offering it for resale under the terms of this Section 1(b). If you integrate the Software into an application and intend to resell the resulting integrated application you must contact us to obtain the appropriate distribution license. All rights not specifically granted to you herein are retained by IceCool.
1(c) Production Use License. The terms of this Section 1(c) are applicable to you if you are a Production Use Customer. Subject to the terms of this Agreement, IceCool.com ("IceCool") grants to you, a non-exclusive, non-transferable, fee-bearing license to use the Software solely for Production Use on the Number of CPUs and at the Sites, all as specified on your invoice. You may use any third party software products or modules supplied by IceCool solely with the Software, unless the licensing terms of the third party software products or modules specify otherwise. You may not disclose the results of software performance benchmarks to any third party without IceCool's prior written consent. Additional restrictions, if any, with respect to third party software will be delivered to you along with your license key. If you integrate the Software into an application and intend to resell the resulting integrated application you must contact us to obtain the appropriate distribution license. All rights not specifically granted to you herein are retained by IceCool.
1(d) The terms of this Section 1(d) are applicable to you if you are a Development Use Customer or Production Use Customer. You may make a reasonable number of copies of the Software and Documentation (provided that all copyright and other proprietary notices of IceCool and its licensors are reproduced), solely for archival and emergency back-up purposes, and disaster recovery testing purposes. If you would like to alter the number of Users, or number or identity of Sites and Servers indicated on your invoice, you must contact IceCool in writing for our approval; you may be subject to additional fees.
2. LICENSE FEES.
2.1 In consideration of the applicable license(s) granted pursuant to Sections 1(b) or 1(c), you agree to pay IceCool the applicable license fee(s) within 30 days of issuance of IceCool's invoice. All charges and fees provided for in this Agreement are exclusive of and do not include any taxes, duties or similar charges imposed by any government ("Taxes"). You agree to pay or reimburse IceCool for all such Taxes (other than taxes on the net income of IceCool).
2.2 If you are outside the United States, you agree that the amounts to be remitted to IceCool are to be the actual amounts due without withholding taxes or other assessments by authorities anywhere in the foreign location, which withholding taxes or assessments you agree to pay. You will promptly furnish IceCool with certificates evidencing payment of such amounts.
3. ANNUAL MAINTENANCE AND SUPPORT.
You must purchase annual Maintenance and Support from IceCool in order to qualify for the Maintenance and Support Services described in this Section.
3.1 Maintenance and Support Services. Maintenance and Support means that IceCool will provide: (a) software upgrades and product enhancements upon their commercial release, and appropriate documentation, and (b) technical assistance with respect to the Software, including (i) clarification of functions and features; (ii) clarification of documentation; (iii) technical support and guidance in the operation of the Software; and (iv) Software error analysis and correction. Major product releases are not covered by the Maintenance and Support contract. IceCool will use commercially reasonable efforts to provide error corrections or work-arounds for the most severe errors as soon as possible and based upon IceCool classification of the severity of the error. Expanded support or technical assistance is available per request at an additional charge in accordance with IceCool's then-current policy. Maintenance and Support will be provided only with respect to versions of the Software that, in accordance with IceCool policy, are then being supported by IceCool.
3.2 Your Responsibilities. You agree to provide IceCool with reasonable access to your personnel and equipment, if necessary during normal business hours in order to provide Maintenance and Support. You agree to document and promptly report all errors or malfunctions of the Software to IceCool.
Any amounts not paid when due (including License Fees and Maintenance and Support Fees) will be subject to interest at the lesser of 1.5% per month or the highest amount permissible under applicable law.
5. LIMITED WARRANY/LIMITATIONS ON LIABILITY.
5.1 Limited Warranty for Certain Uses. With respect to the Software licensed under Section 1(b) or 1(c) (i.e. Production Use and Development Use Licenses, not Evaluation Use Licenses) IceCool warrants to you and for your benefit only that the Software you license from IceCool will perform in substantial accordance with its documentation for a period of thirty (30) days from the date you receive the Software. If during this time period the Software does not perform as warranted, IceCool shall, at its option, undertake to correct the Software, replace such Software free of charge or, if neither of the foregoing is commercially practicable, terminate this Agreement and refund to you the License Fee. This warranty will not apply if the Software has not been properly installed, used outside the scope of the applicable license, modified, altered or operated in an unwarranted environment.
THE FOREGOING IS IceCool'S SOLE LIABILITY FOR AND YOUR SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY.
5.2 No Other Warranties. EXCEPT AS PROVIDED IN SECTION 5.1, THE SOFTWARE IS PROVIDED "AS-IS"; IceCool MAKES NO REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS FOR A PARTICULAR USE OR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, OR THAT THE SOFTWARE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE, AND IceCool HEREBY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES. IceCool MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE SOFTWARE OR ABOUT THE ACCURACY OF ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY THE SOFTWARE.
5.3 Limitations on Liability.
5.3(a) With Respect to Evaluation Use Customers. EVALUATION USE SOFTWARE IS PROVIDED GRATUITOUSLY AND, THEREFORE, IceCool AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY DAMAGES (INCLUDING DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL AND SPECIAL DAMAGES) UNDER ANY THEORY OF LIABILITY (INCLUDING TORT CONTRACT, OR ANY OTHER THEORY) WHETHER SUFFERED BY YOU OR ANY OTHER USER OF THE SOFTWARE, OR ANY THIRD PARTY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
5.3(b) With Respect to Production Use Customers and Development Use Customers/Cumulative Liability. WITH RESPECT TO SOFTWARE PROVIDED UNDER THE TERMS OF A PRODUCTION USE LICENSE OR DEVELOPMENT LICENSE, IceCool AND ITS SUPPLIERS SHALL NOT BE LIABLE, UNDER ANY THEORY OF LIABILITY, INCLUDING TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) CONTRACT, OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES ARISING OUT OF YOUR USE OF THE SOFTWARE, OR THE USE OF THE SOFTWARE BY ANY END USER, USER, DISTRIBUTOR, OR ANY THIRD PARTY, OR IN ANY OTHER WAY ARISING OUT OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR COST OF COVER. IceCool'S CUMULATIVE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF LICENSE FEES PAID BY YOU TO IceCool HEREUNDER FOR THE SOFTWARE GIVING RISE TO SUCH LIABILITY.
Some States do not permit disclaimers of certain warranties or limitations on certain types of liability under certain circumstances; consequently, some of the foregoing disclaimers and limitations may not be applicable to you, in whole or in part.
6. SOFTWARE CHANGES.
IceCool reserves the right at any time not to release or to discontinue release of any Software and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Software.
Title, ownership rights, and all intellectual property rights in and to the Software and Documentation shall remain the sole and exclusive property of IceCool and/or its licensors. You agree to abide by the copyright law and all other applicable laws of the United States. You acknowledge that the Software contains valuable confidential information and trade secrets of IceCool and/or its licensors; therefore, you agree not to modify the Software, create derivative works of, or attempt to decipher, decompile, disassemble or reverse engineer the Software or assist or encourage any third party in doing so.
8.1 IceCool agrees to indemnify and defend you from and against any and all claims, actions or proceedings, arising out of any claim that the Software infringes or violates any U.S. patent, copyright or trade secret right of any third party; so long as you provide: (i) prompt written notice to IceCool of such claim; (ii) cooperate with IceCool in the defense and/or settlement thereof, at IceCool's expense; and, (iii) allow IceCool to control the defense and all related settlement negotiations.
8.2 If it is, or if in the reasonable opinion of IceCool it is probable that it will be, determined by a court of competent jurisdiction that such Software or the sale or use thereof infringes any patent, copyright, trade secret or trademark of a third party or if IceCool is enjoined from distributing such Software, then IceCool, at its sole option and expense, may: (i) procure for you the rights and to the same extent as those granted under this Agreement; (ii) replace such Software with other software, which complies with the specification of the Software; or, (iii) modify the Software, to avoid infringement while continuing to have the Software meet the Specification or (iv) terminate this Agreement and return to you your license fee, less an amount commensurate with your period of use of the Software, as amortized over a three year period.
8.3 You agree that this Section 8 represents IceCool's sole obligation to you and shall be your sole and exclusive remedy pursuant to this Agreement for intellectual property infringement.
8.4Limitations. IceCool shall have no indemnity obligation for claims of infringement to the extent resulting or alleged to result from: (i) any combination, operation, or use of any Software with any programs or equipment not supplied by IceCool; (ii) any modification of the Software by a party other than IceCool; and (iii) your failure, within a reasonable time frame, to implement any replacement or modification of Software provided by IceCool.
9. TERM AND TERMINATION.
9.1 This Agreement will take effect upon submission of your registration form for the Software, and will remain in force until terminated in accordance with this Agreement. This Agreement may be terminated by you upon thirty (30) days' prior written notice to IceCool or by destroying or returning to us all copies and partial copies of the Software and Documentation under your control; provided that no such termination will entitle you to a refund of any portion of the License Fee. IceCool may, by written notice to you, terminate this Agreement immediately if any of the following events ("Termination Events") occur: (a) you fail to pay any amount due IceCool within thirty (30) days after IceCool gives you written notice of such nonpayment; or (b) you are in material breach of any non-monetary provision of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after IceCool gives you written notice thereof.
9.2 Termination of this Agreement will not affect the provisions relating to the payment of amounts due, or provisions limiting or disclaiming IceCool's liability, which provisions will survive termination of this Agreement.
9.3 Within thirty (30) days after the date of termination or discontinuance of this Agreement for any reason whatsoever, you shall destroy the Software and all copies, in whole or in part, all Documentation relating thereto, and any other Confidential Information in its possession that is in tangible form.
10. UNITED STATES GOVERNMENT RIGHTS.
The Software provided under this Agreement is commercial computer software developed exclusively at private expense, and in all respects are proprietary data belonging solely to IceCool.
10.1 Department of Defense End Users: If the Software is acquired by or on behalf of agencies or units of the Department of Defense (DOD), then, pursuant to DoD FAR Supplement Section 227.7202 and its successors (48 C.F.R. 227.7202) the Government's right to use, reproduce or disclose the Software and any accompanying documentation acquired under this Agreement is subject to the restrictions of this Agreement.
10.2 Civilian Agency End Users: If the Software is acquired by or on behalf of civilian agencies of the United States Government, then, pursuant to FAR Section 12.212 and its successors (48 C.F.R. 12.212), the Government's right to use, reproduce or disclose the Software acquired under this Agreement is subject to the restrictions of this Agreement.
11. LEGAL COMPLIANCE.
You may not download or otherwise export or re-export the Software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations. In particular, but without limitation, none of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Syria, or Sudan, or (ii) to anyone on the US Treasury Department's list of Specially Designated Nationals or the US Commerce Department's Table of Deny Orders. By licensing the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under control of, or a national or resident of any such country or on any such list.
12. NON-ASSIGNMENT/BINDING AGREEMENT.
Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by you, in whole or in part, whether voluntary or by operation of law without the prior written consent of IceCool. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
13.1 If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the remaining terms, conditions and provisions will continue to be valid and enforceable to the fullest extent permitted by law.
13.2 This Agreement (including any addenda hereto signed by both parties) represents the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.
13.3 This Agreement may not be amended, except in writing, signed by both parties. [No terms, provisions or conditions of any purchase order, acknowledgment or other business form that you may use in connection with the acquisition or licensing of the Software will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of IceCool to object to such terms, provisions or conditions.]
13.4 This License shall be governed by and construed in accordance with the laws of the State of California as applied to agreements made, entered into and performed entirely in California by California residents. You agree that any dispute regarding this License will be heard in the state or federal courts having jurisdiction in San Francisco County, California, and you agree that you shall be subject to the personal jurisdiction of such courts.
13.5 Use of IceCool software constitutes an acceptance of the terms of this agreement. If you do not agree to be bound by these provisions, you are required to destroy all copies of IceCool software from your equipment immediately.
The following terms shall have the following meanings:
- "Application" means any use of any of the published Application Programming Interfaces (APIs) documented or referenced in the Documentation, whether such use is from a 3rd-party browser (including but not limited to Netscape Navigator or Microsoft Internet Explorer), or from another software program designed or modified to use APIs provided with the Software.
- "Concurrent Users" means the maximum number of simultaneous Users who may use the Software as set forth on your registration form.
- "Development Use" means use of the Software by a Development Use Customer to design, develop and/or test new Applications.
- "Documentation" means the technical publications prepared and delivered to you by IceCool or provided to you on the IceCool web site relating to use of the Software, such as reference, user, installation, systems administrator and technical guides.
- "Production Use" means using the Software in an Application for internal business purposes only. Production Use does not include the right to reproduce the Software for sublicensing, resale, or distribution to any party other than a User, including without limitation, distributing the Software as part of a VAR, OEM, distributor or reseller arrangement.
- "Server" means a single computer processor capable of executing the Software.
- "Site" means the specific, physical location of a Server, as set forth on your registration form.
- "Software" means those items of software, in object code format only, proprietary to IceCool and/or its suppliers, that you have ordered from IceCool pursuant to your registration form and under the terms of this Agreement.
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