WSO2 INC. - SOFTWARE LICENSE AGREEMENT FOR WSO2 SOA Enablement Server for Java™ 6.6
*** READ THIS BEFORE YOU DOWNLOAD THE SOFTWARE ***
THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN WSO2 INC. (THE "LICENSOR") AND THE LICENSEE OF THE SOFTWARE ("CUSTOMER"). BY CLICKING THE "ACCEPT" BOX OR BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU REPRESENT (I) THAT YOU HAVE BEEN AUTHORIZED TO ACCEPT THESE TERMS ON BEHALF OF THE CUSTOMER (IN WHICH EVENT "YOU" AND "YOUR" SHALL REFER TO YOU AND SUCH ENTITY, AS THE CASE MAY BE), OR (II) THAT YOU INTEND TO BE PERSONALLY BOUND TO THE TERMS OF THIS AGREEMENT AS THE CUSTOMER. IF YOU ARE NOT SO AUTHORIZED OR DO NOT INTEND TO BE PERSONALLY BOUND, THEN LICENSOR IS UNWILLING TO LICENSE THE SOFTWARE AND THE DOWNLOADING, INSTALLATION OR USE OF THE SOFTWARE IS A VIOLATION OF U.S. AND INTERNATIONAL COPYRIGHT LAWS AND CONVENTIONS. IF YOU ACCEPT THESE TERMS FOR AN ENTITY ON WHOSE BEHALF YOU ARE AUTHORIZED TO ACT, YOU MAY USE THE SOFTWARE ONLY ON BEHALF OF SUCH ENTITY. IF YOU INTEND TO BE PERSONALLY BOUND, USE OF THE SOFTWARE IS LIMITED TO YOUR PERSONAL USE.
IF ALL OR SOME PORTION OF THE SOFTWARE HAS BEEN LICENSED BY ANOTHER PARTY FOR YOUR USE (E.G., YOUR EMPLOYER OR AN INDIVIDUAL OR COMPANY WITH WHICH YOU CONDUCT BUSINESS), YOUR RIGHT TO USE THAT SOFTWARE IS SUBJECT TO THE TERMS AND CONDITIONS OF THE AGREEMENT(S) BETWEEN WSO2 INC. AND THE OTHER PARTY, AND NOT THIS AGREEMENT.
LICENSOR hereby agrees to grant and CUSTOMER agrees to accept a non-exclusive license to use the Software subject to the following terms and conditions:
1. Right to Use: The Software is provided in and is licensed for use in object code form only. The Software may only be used by CUSTOMER as set forth in this Agreement. CUSTOMER may make copies of the Software for archival or backup purposes only, but any and all copies must include LICENSOR's copyright notice, and are fully subject to the terms of this Agreement. CUSTOMER may not reverse engineer, disassemble, decompile, translate or otherwise attempt to create the source code from the Software or create derivative works of the Software or any portion thereof, including for reasons of error correction or interoperability, except as expressly provided in this Agreement or expressly permitted by law. During the warranty period stated in Section 6 below, at CUSTOMER's request and at LICENSOR's election or as may be required by applicable law, LICENSOR will make commercially reasonable efforts to make available to CUSTOMER certain interface specifications so that CUSTOMER may develop software interfaces to provide interoperability with the Software. CUSTOMER may not (i) use the Software for any purpose other than internal development, testing and evaluation, or, if CUSTOMER is downloading the Software pursuant to a validly issued Quote which has been signed by authorized representatives of the CUSTOMER and LICENSOR, then use the Software for deployment purposes in excess of the server class and usage level stated in the Quote; (ii) publish or provide any results of benchmark tests run on the Software to a third party without LICENSOR's prior written consent, (iii) except as expressly set forth in the paragraph below, disclose, distribute or otherwise make available the Software to any other party or permit others to use it, except employees and agents of CUSTOMER who use it on CUSTOMER's behalf, if CUSTOMER is an entity, or (iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. CUSTOMER may not rent, lease, sublicense, grant a security interest in, or otherwise transfer rights to the Software.All rights not expressly granted herein are retained by LICENSOR.
1a. SPECIAL TERMS APPLICABLE TO SAXON SOFTWARE. Certain Software editions may include unmodified third party software from Michael Kay (http://www.saxonixa.com) and its Contributors ("Saxon Software"). Source code for Saxon Software is available directly from saxonica.com or, if such software is included with the Product, from WSO2. Saxon Software is separately licensed under the terms of the Mozilla Public License (MPL) 1.1.
2. Development, Testing, or Evaluation Software: Notwithstanding anything to the contrary in this Agreement, if LICENSOR provides the Software to CUSTOMER for development, testing or evaluation use, then (a) CUSTOMER may use such Software in a manner consistent with the terms of this Agreement solely for non-production deployment purposes; and (b) because the Software is provided to CUSTOMER free of charge, LICENSOR DISCLAIMS THE LIMITED WARRANTY SET FORTH BELOW IN SECTION 6, AND LICENSES THE SOFTWARE TO CUSTOMER "AS IS", WITHOUT LIABILITY FOR DAMAGES OF ANY KIND. Evaluation copies of Software may include a "time-out" mechanism that will automatically disable use of the Software at the end of the evaluation period.
3. Term: This license granted to CUSTOMER hereunder shall commence upon CUSTOMER's acceptance of the terms of this Agreement. Upon CUSTOMER's breach any of its obligations hereunder, this Agreement shall terminate and CUSTOMER will immediately discontinue use of all Software or certify in writing that all copies have been destroyed. Sections 4, 5, 6, 7, 8, 9, 10, 11, and 12 shall survive the termination of this Agreement.
4. Title: Title to the Software, and all enhancements, improvements and modifications thereto shall remain with LICENSOR.
5. Confidential Information: CUSTOMER understands and agrees that the Software contains trade secrets belonging to the LICENSOR, and will take all reasonable steps to protect its confidentiality, including use of unique passwords restricting access to authorized personnel only. CUSTOMER acknowledges that the Software is the property of LICENSOR and contains Confidential Information and proprietary information of LICENSOR. CUSTOMER agrees that, other than to its employees having a need to access the Software for purposes of this Agreement, it will not provide a copy of the Software nor divulge any details of it to any person without the prior consent in writing of the LICENSOR.
6. Limitation of Warranties and Liability: LICENSOR warrants solely that for a period of thirty (30) days from initial shipment by LICENSOR, or download by CUSTOMER, of the Software, the Software as delivered will function materially as described in the accompanying documentation. This warranty does not apply insofar as: (a) the Software is subjected to misuse, neglect, accident, or exposure to environmental conditions beyond those specified in the Documentation; (b) claims resulting from acts or omissions caused by persons other than the LICENSOR or from products, material or software not provided by the LICENSOR; (c) a version of the Software is used that does not include all updates available from LICENSOR; (d) the Software is modified or; (e) the Software is used on an operating system other than the system and version specified in the Documentation or on a machine not described in the Documentation. In the event of a breach of warranty, LICENSOR's sole responsibility, and CUSTOMER's sole and exclusive remedy, is, at LICENSOR's option, to repair or replace all or any portions of the Software. This limited warranty is valid only if LICENSOR receives written notice of breach of warranty within ten days of such thirty-day period. THIS WARRANTY DOES NOT APPLY TO SOFTWARE LICENSED UNDER SECTION 2 OF THIS AGREEMENT.
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, LICENSOR SHALL HAVE NO LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR THE SOFTWARE, INCLUDING ANY LIABILITY FOR NEGLIGENCE. LICENSOR MAKES AND CUSTOMER RECEIVES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER COMMUNICATION. LICENSOR SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. CUSTOMER MAY HAVE CERTAIN STATUTORY RIGHTS TO WHICH THESE EXCLUSIONS DO NOT APPLY, HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE WARRANTY PERIOD SET FORTH IN THIS SECTION 6. MOREOVER, IN NO EVENT WILL WARRANTIES PROVIDED BY LAW, IF ANY, APPLY UNLESS THEY ARE REQUIRED TO APPLY BY STATUTE. NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. NO DEALER, AGENT, OR EMPLOYEE OF LICENSOR IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS LIMITED WARRANTY.
THE CUMULATIVE LIABILITY OF LICENSOR TO THE CUSTOMER FOR ALL CLAIMS RELATING TO THE SOFTWARE, IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL LICENSE FEES PAID TO LICENSOR BY THE CUSTOMER FOR THE SOFTWARE.
IN NO EVENT SHALL LICENSOR BE LIABLE TO THE CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, MULTIPLE OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION AND LOST DATA, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
CUSTOMER is responsible for the selection of the Software to achieve its intended results, and for the installation, use and results obtained from the Software. LICENSOR does not warrant that use of the Software will be uninterrupted or error free, nor that program errors will be corrected.
The Software is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). Accordingly, LICENSOR and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities.
SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH EVENT LICENSOR'S AGGREGATE LIABILITY WITH RESPECT TO ALL CLAIMS WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
7. Taxes: CUSTOMER agrees to pay (and to reimburse LICENSOR on request if LICENSOR is required to pay) any sales, use, value added (VAT), consumption or other tax (excluding any tax on LICENSOR's net income) or other fee or charge of any kind or nature that is levied or imposed by any governmental authority on CUSTOMER's use or license of the Software.
8. Miscellaneous: This Agreement, the license granted hereunder, the Software and any modifications thereto may not be assigned or otherwise transferred without the prior written consent of LICENSOR. The terms of this Agreement shall be construed in accordance with the substantive laws of the Commonwealth of Massachusetts, United States of America, without giving effect to the principles of conflict or choice of law of such Commonwealth. The original of this Agreement has been written in English. The parties hereto waive any statute, law, or regulation that might provide an alternative law or forum or to have this Agreement written in any language other than English. LICENSOR and CUSTOMER exclude the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act from this Agreement. If any provision of this Agreement is held to be excessively broad as to scope, activity, subject or otherwise so as to be unenforceable at law, such provision shall be constructed by limiting or reducing it so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear. This Agreement represents the entire understanding between the parties with respect to its subject matter and supersedes all prior written and oral communications, as well as the terms set forth in any other document, including without limitation any purchase order, check or form issued by CUSTOMER. This Agreement may not be modified except by a written agreement signed by authorized representatives of both parties. A waiver by either party of its rights hereunder shall not be binding unless contained in a written agreement signed by an authorized representative of the party waiving its rights. The non-enforcement or waiver of any provision on one occasion shall not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing.
9. United States Federal Government Acquisitions: This Section applies to all acquisitions of this Software by or for the federal government of the United States, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the federal government of the United States. By accepting delivery of this Software, the government hereby agrees that this Software and related documentation qualifies as "commercial" computer software and "commercial" computer software documentation within the meaning of the acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the government's use and disclosure of this Software, and shall supersede any conflicting contractual terms or conditions. If this Agreement fails to meet the government's needs or is inconsistent in any respect with Federal law, the government agrees to return this Software, unused, to the LICENSOR.
10. Export Control; Data Protection: None of the Software or underlying information or technology may be downloaded or otherwise exported or reexported (i) into (or to a national or resident of) any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. By downloading or using the Software, CUSTOMER agrees to the foregoing and represents and warrants that it is not located in, under the control of, or a national or resident of any such country or on any such list. In addition, CUSTOMER agrees to comply with all relevant export laws and regulations of the United States and any local laws in other jurisdictions that may impact its right to import, export or use the Software, and represents that it has complied with any regulations or registration procedures required by applicable law to make this license enforceable. CUSTOMER undertakes to comply with its obligations under the relevant EU data protection and privacy legislation including (where applicable) the EC Data Protection Directive (95/46) and equivalent national legislation.
11. Reporting and Verification: CUSTOMER will promptly report to LICENSOR any use of the Software in a configuration using a greater server class or usage level than licensed pursuant to this Agreement. LICENSOR is entitled to charge CUSTOMER for the server class or usage level used in excess of the licensed one, pursuant to LICENSOR's then current price list. At LICENSOR's request, CUSTOMER agrees to report to LICENSOR on an annual basis, the number of CPUs and/or server classes used in connection with the operation of the Software during the previous twelve (12) months' period. CUSTOMER shall provide LICENSOR OR LICENSOR's designated auditors with access to CUSTOMER's facilities, at reasonable times and upon reasonable notice, to verify CUSTOMER'S compliance with the terms of this Agreement. CUSTOMER shall reimburse LICENSOR for the audit costs, if the use of the Software is found to be greater by more than five (5) percent than that contracted for. CUSTOMER shall pay additional License Fees and Maintenance Fees with respect to any use of the Software in excess of the CPUs, pursuant to this Agreement.
12. Arbitration: CUSTOMER agrees that all disputes arising out of or relating to this Agreement shall be finally settled by arbitration conducted in Boston, Massachusetts, United States of America, under the rules of commercial arbitration of the American Arbitration Association. Both parties shall bear equally the cost of arbitration (exclusive of legal fees and expenses, all of which each party shall bear separately). All decisions of the arbitrator(s) shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding the foregoing, in the event of breach by CUSTOMER of its obligations hereunder, LICENSOR may seek injunctive or other equitable relief in any court of competent jurisdiction.