CLOCKWARE, INC. END USER SOFTWARE LICENSE
IMPORTANT - READ CAREFULLY
CAUTION: IF YOU USE THE ENCLOSED SOFTWARE, THE FOLLOWING TERMS WILL APPLY. IF THE TERMS ARE NOT ACCEPTABLE TO YOU, RETURN THE SOFTWARE WITHIN THIRTY (30) DAYS TO THE COMPANY FROM WHICH YOU OBTAINED IT FOR A REFUND.
CLOCKWARE, INC. ("CLOCKWARE") GRANTS TO YOU A LICENSE TO USE THE ENCLOSED SOFTWARE AND ACCOMPANYING DOCUMENTATION ("PRODUCT") AS INDICATED BELOW:
1. License Grant. CLOCKWARE grants you a non-transferable, non-exclusive license to install and use the Product solely for your own internal data processing operations, either (i) to the extent specified in an order form or Product Use Certificate distributed to you by CLOCKWARE or its distributor, or (ii) if not specified, by a single User on a single computer. You may make one (1) copy of the Product for back-up purposes: otherwise, you may not reproduce any part of the Product except to the extent permitted on the order form or Product Use Certificate delivered to you by CLOCKWARE. You shall not (i) cause or permit any reverse engineering, decompilation, modification, translation or disassembly or the Product; (ii) sell, rent, sublicense, distribute, assign or otherwise transfer any rights in the Product without CLOCKWARE’S prior written consent; or (iii) disclose results of any benchmark tests of any Product to any third party without CLOCKWARE’S prior written consent. You only have the rights to use the Product enclosed in this package that are specified by CLOCKWARE in the applicable order form or Product Use Certificate.
2. Ownership of Product. All title and copyrights in and to the Product and the media containing the Product are owned by CLOCKWARE and / or its licensors, and the Product’s structure, organization and code are the valuable trade secrets of CLOCKWARE and / or its licensors. You acknowledge that no title to the intellectual property in the Product is transferred to you, and that you do not obtain any rights, express or implied, in the Product or the media containing the Product other than the rights expressly granted in this Agreement. You agree to retain on the Product and any permitted back-up copies of the Product all product identifications and patent, copyright, trademark and other proprietary notices contained on the Product delivered to your hereunder.
3. Termination. The term of this Agreement will be for the duration of CLOCKWARE’s copyright in the Product. This Agreement may be terminated immediately without notice by CLOCKWARE if you breach or fail to comply with any of the terms and conditions of this Agreement. Upon termination, you shall immediately remove and destroy all copies of the Product or any parts thereof. The provisions of this Agreement, other than the license grant contained in Section 1 hereof, shall survive termination.
4. Support, Maintenance, and New Releases. CLOCKWARE is not responsible for the provision of any direct support or maintenance, or the provision of new releases, enhancements or updates of the Product except as may be expressly provided for in a separate written maintenance agreement between you and CLOCKWARE, if any. Pricing and other terms and conditions of such separate maintenance agreement are available to you by telephone at 408-749-7600, or by accessing the information at http://www.clockware.com/.
5. Limited Warranty. CLOCKWARE WARRANTS THAT FOR A PERIOD OF 30 DAYS FROM THE DATE OF DELIVERY TO YOU: (A) THE MEDIA ON WHICH THE PRODUCT IS FURNISHED WILL BE FREE OF DEFECTS IN MATERIALS AND WORKMANSHIP UNDER NORMAL USE AND (B) UNMODIFIED PRODUCT WILL PERFORM SUBSTANTIALLY THE FUNCTIONS DESCRIBED IN THE DOCUMENTATION WHEN OPERATED ON THE DESIGNATED COMPUTER AND OPERATING SYSTEM. CLOCKWARE DOES NOT WARRANT THAT THE PRODUCT WILL WORK IN COMBINATION WITH OTHER PRODUCTS USED BY YOU, THAT THE PRODUCT WILL MEET YOUR REQUIREMENTS, THAT OPERATION OF THE PRODUCT WILL BE ERROR-FREE, OR THAT ALL PRODUCT ERRORS WILL BE CORRECTED. If, within such 30 day period, you report a Product error which represents a failure of this warranty, CLOCKWARE will, at its option, (i) correct or provide a reasonable workaround for the error, (ii) provide a replacement Product which complies with the warranty or (iii) upon return of the Product to CLOCKWARE, refund the license fees paid. CLOCKWARE will replace any defective media without charge if its is returned to CLOCKWARE within the 30 day period.
EXCEPT FOR THE FOREGOING LIMITED WARRANTY, CLOCKWARE MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO PERSON, DEALER OR COMPANY MAY EXPAND OR ALTER THIS WARRANTY.
Some states or jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to you. To the extent permissible, any implied warranties are limited to 30 days. This warranty gives you specific legal rights. You may have other rights which vary from state or jurisdiction to jurisdiction. For further warranty information, you may contact CLOCKWARE’S customer support department at 408-749-7600, U.S.A.
6. Limitation of Liability. IN NO EVENT WILL CLOCKWARE OR ITS LICENSORS HAVE ANY LIABILITY FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING ANY LOST PROFITS OR LOST SAVINGS, ARISING OUT OF THE USE, DELIVERY OR PERFORMANCE OF THE PRODUCT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. THIS LIMITATION SHALL APPLY TO CLAIMS OF PERSONAL INJURY TO THE EXTENT PERMITTED BY LAW. IN NO EVENT WILL CLOCKWARE’S OR ITS LICENSORS’ LIABILITY FOR ANY CLAIM, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY, EXCEED THE LICENSE FEE PAID BY YOU. Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, so the above exclusions and limitations may not apply to you.
7. Export. You agree that you will not export or re-export the Product outside of the jurisdiction in which you obtained it without the appropriate United States or foreign governmental licenses.
8. Integration. This Agreement along with all relevant purchase orders, order forms and a separate written maintenance agreement between you and CLOCKWARE, if any, constitute, the full and complete understanding of the parties as to the subject matter hereof and may not be altered or modified, except by written amendment which expressly refers to this Agreement and which is duly executed by an officer of CLOCKWARE. Notwithstanding the foregoing, you understand and agree that any terms and conditions of your purchase orders which conflict with this Agreement shall be null and void and of no effect and that the terms and conditions of this Agreement shall, to the extent that there may be any such conflicts, supersede any such conflicting terms of your purchase orders. If any part of this Agreement is found null and void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms.
9. Choice of Law. This Agreement shall be construed and governed in accordance with the laws of the State of California, excluding the application of its conflicts of law rules. This Agreement will not be governed by the United States Convention on the Contracts for the International Sale of Goods.
10. US Government RESTRICTED RIGHTS. If the Product is acquired under the terms of a proposal or agreement with the United States Government or any contractor therefor, the Product is subject to the following (a) For acquisition by or on behalf of civilian agencies, as necessary to obtain protection as "commercial Software Agreement as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; (b) For acquisition by or on behalf of units of the Department of Defense ("DoD") as necessary to obtain protection as "commercial computer software" and related documentation in accordance with the terms of this commercial computer software license as specified in 48 C.F.R. 227-7202-2 of the DoD F.A.R. Supplement and its successors.
11. Confidentiality. The parties acknowledge that by virtue of their licensing, support services or consulting relationship the parties may have access to information that is confidential to one another ("Confidential Information"). Confidential Information will be limited to the Software/Customized Software, Restricted Releases, Documentation, methodologies, Developments, and all information clearly marked by either party as confidential. The parties agree, both during the term of this Agreement and for a period of three years after termination, to hold each other’s Confidential Information in confidence and not to use any Confidential Information of the other party other than in connection with the Performance of this Agreement. The parties agree not to make each other’s Confidential Information available in any form to any third party (other than those of its employees or consultants under nondisclosure obligations) or to use each other’s Confidential Information for any purpose other than as contemplated by this Agreement. Each party agrees to take commercially reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the provisions of this Section 11.
Licensee agrees not to disclose any Confidential Information to any third parties (including any affiliated entities) without the prior written consent from CLOCKWARE.
Notwithstanding any provision contained in this Agreement, neither party will be required to maintain in confidence any of the following information:
(a) information, which, at the time of disclosure to the receiving party, is the public domain;
(b) information, which, after disclosure, becomes part of the public domain by publication or otherwise, except by breach of this Agreement;
(c) information which was in the receiving party’s possession (as reflected in its written records) at the time of disclosure by the disclosing party, and which was not acquired, directly or indirectly, from the disclosing party;
(d) information which the receiving party can demonstrate, by written documents, resulted from its own research and development, independent of disclosure from the disclosing party;
(e) information which the receiving party receives from third parties, provided such information was not obtained by such third parties from the disclosing party on a confidential basis;
(f) information, which is produced in compliance with applicable law or a court order, provided the other party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production.
12. MAINTENANCE, SUPPORT, AND IMPROVEMENTS. Licensee may elect to enroll in the Maintenance, Support, and Future Improvements Option (the "Maintenance Option"). The Maintenance Option will provide for:
(a). Corrections to Product code in order to rectify any malfunctions to Product in order to bring such Product into substantial conformity with the operating specifications for the most current version of the Product, unless Licensee's unauthorized modifications prohibits or materially hampers such corrections or causes the malfunction;
(b). Telephone support to Licensee in order to assist Licensee with locating, and on its own, correcting problems with the Product or answer questions;
(c). Update Products, at CLOCKWARE's sole discretion and so long as it is technically feasible, as required to operate under new releases of the operating system and other system software with which the Product is designed to operate;
(d). Extensions, enhancements, and other changes that CLOCKWARE, at its sole discretion, makes or adds to the Product and which CLOCKWARE furnishes, without charge, to all other customers of the Product; and
(e). Replacement of the Product at no charge in the event the media becomes destroyed or damaged so that the Product becomes unusable.
For a Perpetual License installment, maintenance, support and future improvements to the Product (excluding add-on components) are included in the License Fee and there is no charge for twelve (12) months following the Effective Date of the License("Maintenance Effective Date"). Maintenance for addon components will be charged at the next annual maintenance anniversary date and will be based on the then current license fee of the licensed add-on component. Thereafter, for a Perpetual License, Licensee will be deemed to have elected the Maintenance Option for each annual Maintenance Period unless Licensee terminates the Maintenance Option at the end of an annual Maintenance Period by written notice from Licensee to CLOCKWARE at least thirty (30) days prior to expiration of such annual Maintenance Period.
CLOCKWARE shall bill Licensee the then current charge for the next year of the Maintenance Option. Licensee must pay the invoice, which shall be due thirty (30) days from date of invoice to remain enrolled in the Maintenance Option. CLOCKWARE reserves the right to change its charge for the Maintenance Option at any time upon thirty (30) days written notice to Licensee, provided, that the charge does not exceed the amount regularly charged by CLOCKWARE to other licensed users of the Product. Any such changes shall not take effect until the completion of the current Maintenance Period. The annual maintenance rate shall be twenty percent (20%) of the then current published USA license fee for the installed products, less any applicable discount.
The annual Maintenance Option fee for each License shall be set forth in the applicable Product Schedule as a percentage amount of the standard License Fee for a Perpetual License in effect at the beginning of each maintenance year for use of that Product on the same Level of CPU. If Licensee's Maintenance Option for a Product is terminated or lapses at anytime, Licensee may reinstate the Maintenance Option for such Product by paying a reinstatement fee calculated as follows: The then current License Fee is multiplied by the then current maintenance percentage and divided by six (6), then multiplied by the number of months during which Licensee was not enrolled in the Maintenance Option. Additionally, Licensee must pay the annual charge for the Maintenance Option for the next year in advance.
Definitions for Order Forms and Product Use Certificates.
Servers: the maximum number of computing devices acting as a server for a network of interconnected computing devices whether within an enterprise or other Web, intranet or internet environment, upon which the Product may be installed or accessed.
User: an individual authorized by the licensee of the Product to use or access the functionality of the Product regardless of whether the individual is actually using or accessing the Product at any given time.