| TIBCO Software Inc. End User License Agreement 1

| TIBCO Software Inc. End User License Agreement 1
TIBCO Software Inc. End User License Agreement
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TIBCO Software Inc. End User License Agreement
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 solely for Customer's internal
business use.
License Term. The term of each license for the Software shall be
either perpetual or on a term limited basis as set forth in the Ordering
Document. If licensed on a term limited basis, the term shall be for a
period of three years commencing on the Purchase Date, and on
expiration, Customer must cease using and return or destroy all
copies of the Software.
Restrictions. Customer agrees not to (a) make more copies than the
Number of Units (except for a reasonable number of copies for
archival and disaster recovery purposes) or use any unlicensed
versions of the Software; (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. Customer may engage in such conduct as is
necessary to ensure the interoperability of the Software as required by
law, provided that prior to commencing any decompilation or reverse
engineering of any Software, Customer agrees to it shall observe strict
obligations of confidentiality and provide TIBCO reasonable advance
written notice and the opportunity to assist with and/or conduct such
activity on Customer's behalf and at Customer's expense; and (g)
notwithstanding the method of delivery of the Software, the scope of
the licenses granted under this Agreement are limited to the Software
as set forth in an Ordering Document.
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.
Maintenance. Maintenance, if ordered, including first year and all
subsequent years, is provided under the policies set forth in the
Maintenance Program Guide in effect at the time Maintenance
services are provided. The policies set forth in the Maintenance
Program Guide, incorporated in this Agreement, are subject to change
at TIBCO's discretion; however the level of Maintenance service
provided by TIBCO will not be materially reduced during the period for
which Maintenance fees have been paid by Customer. The current
version of the Maintenance Program Guide can be accessed at
http://www.tibco.com/services/support/default.jsp. To receive
Maintenance, all Software must be properly licensed and annual
Maintenance fees paid. TIBCO is not obligated to continue providing
Maintenance if annual Maintenance fees have not been paid.
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.
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,
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| TIBCO Software Inc. End User License Agreement
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.
To the extent TIBCO is exposed to individual personal data owned or
otherwise held by Customer during the provision of Services, which is
subject to various data protection laws and/or regulations ("Protected
Data"), TIBCO agrees to treat such Protected Data in accordance with
the Customer Privacy and Security Statement set forth at
http://www.tibco.com/customer_privacy_security_statement.jsp (the
"Statement"). The policies and procedures set forth in the Statement
as well as those set forth in the Data Protection Policy Statement at
http://www.tibco.com/resources/data_protection_statement.pdf are in
place to meet TIBCO's obligations for the protection, integrity and
confidentiality of any Protected Data which exceed TIBCO's standard
obligations to safeguard Confidential 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 Software, Maintenance or Services are
being or have been acquired with U.S. Federal Government funds, or
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TIBCO Software Inc. End User License Agreement
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, Maintenance or Services, or any related documentation of
any kind, including technical data, or manuals, is restricted in
accordance with Federal Acquisition Regulation 12.212 for civilian
agencies and Defense Federal Acquisition Regulation Supplement
227.7202 for military agencies. The Software, Maintenance and
Services are COMMERCIAL ITEMS AS DEFINED BY THE FEDERAL
ACQUISITION REGULATION. Use of the Software, Maintenance and
Services by the Government is further restricted according to the
terms of this Agreement and any amendment hereto.
Orders. An Ordering Document means any purchase order, similar
document or agreement requesting Software, Maintenance or
Services, which 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. Neither the license to use the
Software granted in this Agreement nor the obligation to pay the
license fees set forth above are dependent upon the performance by
any party of any Services or the supply of any other software program
or product. Software shall be delivered electronically, and delivery
deemed complete when the Software is made available for download
by Customer.
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 sixty (60)
days prior to the end of any annual Maintenance term; or (d) by
Customer (for Services), upon ten days prior written notice or 30 days
prior written notice by TIBCO. 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 or
expiration 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.
Definitions. In connection with this End User License Agreement
Software product definitions are as set forth at
http://tibco.com/software/productdefinitions.jsp which are hereby
incorporated into the End User License Agreement and the following
capitalized terms shall have the following meaning: "Customer" means
the original purchaser or licensee of the Software and any permitted
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successors and assigns; "Documentation" means text material that
accompanies the Software on delivery, which describes how to make
use of that software. "Enterprise" means an unlimited Number of Units
of the Software set forth in an Ordering Document as Enterprise, to be
deployed by Customer during a period of one year (or such other
period of time set forth in the Ordering Document) from the Purchase
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
Unit and License Type. In the event Customer elects to renew
Maintenance (subject to the section entitled "Termination"), then
during the Enterprise Term and for the first annual renewal thereafter,
TIBCO agrees the annual Maintenance fee for the Software licensed
on an Enterprise basis shall not increase by more than the percentage
rate change in the United States Department of Labor - Consumer
Price Index for All Urban Consumers (CPI-U) for the twelve month
period immediately preceding the anniversary date of Maintenance.
"Purchase Date" means the date the Ordering Document is accepted
by TIBCO. "Project" means an unlimited Number of Units of the
Software set forth in an Ordering Document as Project, to be deployed
by Customer solely in connection with the description and scope of the
Customer project set forth in the Ordering Document, during a period
of one year (or such other time period set forth in the Ordering
Document) from the Purchase 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 beyond the scope of the Project as set forth herein or 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. In the event Customer elects to renew
Maintenance (subject to the section entitled "Termination"), then
during the Project Term and for the first annual renewal thereafter,
TIBCO agrees the annual Maintenance fee for the Software licensed
on a Project basis shall not increase by more than the percentage rate
change in the United States Department of Labor - Consumer Price
Index for All Urban Consumers (CPI-U) for the twelve month period
immediately preceding the anniversary date of Maintenance.
"Severity" means the impact levels of an error, defect or malfunction,
which under Maintenance are determined by TIBCO as follows:
"Severity 1" is an emergency production situation where the Software
is totally inoperable or fails catastrophically and there is no
workaround; "Severity 2" is a detrimental situation (and there is no
workaround) where (a) performance degrades substantially under
reasonable loads causing a severe impact on use, (b) the Software is
usable but materially incomplete; or (c) one or more mainline functions
or commands is inoperable; "Severity 3" is where the Software is
usable, but does not provide a function in the most convenient
manner; and "Severity 4" is a minor problem or documentation error.
"Software" means the most current, generally available object code
version on all Platforms then currently available. Software does not
include multiple Platforms if the software product licensed on a
Platform specific basis as designated in the Software product name or
as otherwise listed in an Ordering Document, including its
Documentation and any subsequent Updates provided under
Maintenance. For the purposes of the product definitions where
"TIBCO Software" or "Licensor Software" is used it shall have the
same meaning as "Software". "TIBCO" means TIBCO Software Inc.
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| TIBCO Software Inc. End User License Agreement
and any entities, regardless of corporate status, controlled by,
controlling, or under common control with TIBCO Software Inc.
"Updates" means Software bug fixes, enhancements, and updates, if
and when made generally available by TIBCO. Updates provided
under Maintenance, warranty or which are provided for any other
reason by TIBCO, or TIBCO's authorized resellers or distributors (if
applicable), are subject to the license rights, limitations and
restrictions of the End User License Agreement.
Special Product Provision. Embedded/Bundled Products. Some
Software embeds or bundles other Software. Use of such embedded
or bundled Software is solely to enable the functionality of the
Software licensed under this Agreement, and may not be used or
accessed by any other Software, or for any other purpose. Bundle. A
collection of Software listed in TIBCO's then current price book to be
sold together under a collective name such as "XXX Bundle" which
consists of X, Y and Z. The Software which comprises a Bundle must
be used in accordance with any specific license restrictions imposed
in this Agreement and solely in conjunction with the components of the
Bundle; provided that a Bundle component may be accessed by or
communicate with other Software separately licensed by Customer. In
no event may the Software which comprises a Bundle be used on a
standalone basis. A Bundle is sold at a discount to the cost of
licensing the individual components due to the restrictions imposed on
the use of the Bundle by this section and any specific license
restrictions imposed by this Agreement. If the terms of this Agreement
with regard to a Bundle are breached, and such breach is not cured
within ten (10) days of TIBCO notifying Customer in writing of the
breach, TIBCO shall be entitled to invoice Customer for the list price of
the individual components of the Bundle based upon the manner in
which Customer has deployed and is making use of the components.
Open Source Software. If Customer uses open source software or any
other third party software not supplied by TIBCO in conjunction with
the Software, Customer must ensure that its use does not: (i) create,
or purport to create, obligations of use with respect to the 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 Software. Customer also may not combine 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 Software or any modifications thereto to become subject to
the terms of the GPL. Third Party Software. 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.
found to be void or unenforceable, the remaining provisions shall
remain in full force and effect.
Governing Law. 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.
Version 5.6, April 2008
Third-Party Software Notices
JAXB 2.1.7
"This product includes software licensed under the Common
Development and Distribution License (CDDL) version 1.0. For a
period of time not to exceed three years from the Purchase Date,
TIBCO also offers to provide Customer, upon written request of
Customer, a copy of the source code for this software."
JRuby 1.1.5
"This product includes a modified version of JRuby software, which is
licensed under the Common Public License, v1.0. The source code for
the JRuby software as modified can be found in the zip file src.zip."
JRubyEngine 1.1.6
"Copyright (c) 2006, Sun Microsystems, Inc. All rights reserved."
Ruby Development Toolkit 0.9.1
"This product includesRuby DevelopmentToolkit software which
islicensed under theCommon Public License,v1.0. For a period of
timenot to exceed threeyears from the PurchaseDate, TIBCO also
offersto provide Customer,upon written request ofCustomer, a copy of
thesource code for thissoftware."
ADDENDA: Third-Party Software License Agreements
General. 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. Fees 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 sections
entitled "Limited Warranty" and "Indemnity" all fees paid under or in
connection with this End User License Agreement are non-refundable
and no right of set-off exists. 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
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Third-Party Software License Agreements
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Third-Party Software License Agreements
The following are the software licenses for the Third-Party Software
provided in connection with the software.
Patents. The patent license shall not apply to any other combinations
which include the Contribution. No hardware per se is licensed
hereunder.
JRuby 1.1.5
Common Public License - v 1.0
THE ACCOMPANYING PROGRAM IS PROVIDED UNDER THE
TERMS OF THIS COMMON PUBLIC LICENSE ("AGREEMENT").
ANY USE, REPRODUCTION OR DISTRIBUTION OF THE
PROGRAM CONSTITUTES RECIPIENT'S ACCEPTANCE OF THIS
AGREEMENT.
1. DEFINITIONS
"Contribution" means:
a) in the case of the initial Contributor, the initial code and
documentation distributed under this Agreement, and
c) Recipient understands that although each Contributor grants the
licenses to its Contributions set forth herein, no assurances are
provided by any Contributor that the Program does not infringe the
patent or other intellectual property rights of any other entity. Each
Contributor disclaims any liability to Recipient for claims brought by
any other entity based on infringement of intellectual property rights or
otherwise. As a condition to exercising the rights and licenses granted
hereunder, each Recipient hereby assumes sole responsibility to
secure any other intellectual property rights needed, if any. For
example, if a third party patent license is required to allow Recipient to
distribute the Program, it is Recipient's responsibility to acquire that
license before distributing the Program.
d) Each Contributor represents that to its knowledge it has sufficient
copyright rights in its Contribution, if any, to grant the copyright license
set forth in this Agreement.
b) in the case of each subsequent Contributor:
3. REQUIREMENTS
i) changes to the Program, and
A Contributor may choose to distribute the Program in object code
form under its own license agreement, provided that:
ii) additions to the Program;
where such changes and/or additions to the Program originate from
and are distributed by that particular Contributor. A Contribution
'originates' from a Contributor if it was added to the Program by such
Contributor itself or anyone acting on such Contributor's behalf.
Contributions do not include additions to the Program which: (i) are
separate modules of software distributed in conjunction with the
Program under their own license agreement, and (ii) are not derivative
works of the Program.
a) it complies with the terms and conditions of this Agreement; and
"Contributor" means any person or entity that distributes the Program.
ii) effectively excludes on behalf of all Contributors all liability for
damages, including direct, indirect, special, incidental and
consequential damages, such as lost profits;
"Licensed Patents " mean patent claims licensable by a Contributor
which are necessarily infringed by the use or sale of its Contribution
alone or when combined with the Program.
"Program" means the Contributions distributed in accordance with this
Agreement.
b) its license agreement:
i) effectively disclaims on behalf of all Contributors all warranties and
conditions, express and implied, including warranties or conditions of
title and non-infringement, and implied warranties or conditions of
merchantability and fitness for a particular purpose;
iii) states that any provisions which differ from this Agreement are
offered by that Contributor alone and not by any other party; and
"Recipient" means anyone who receives the Program under this
Agreement, including all Contributors.
iv) states that source code for the Program is available from such
Contributor, and informs licensees how to obtain it in a reasonable
manner on or through a medium customarily used for software
exchange.
2. GRANT OF RIGHTS
When the Program is made available in source code form:
a) Subject to the terms of this Agreement, each Contributor hereby
grants Recipient a non-exclusive, worldwide, royalty-free copyright
license to reproduce, prepare derivative works of, publicly display,
publicly perform, distribute and sublicense the Contribution of such
Contributor, if any, and such derivative works, in source code and
object code form.
a) it must be made available under this Agreement; and
b) Subject to the terms of this Agreement, each Contributor hereby
grants Recipient a non-exclusive, worldwide, royalty-free patent
license under Licensed Patents to make, use, sell, offer to sell, import
and otherwise transfer the Contribution of such Contributor, if any, in
source code and object code form. This patent license shall apply to
the combination of the Contribution and the Program if, at the time the
Contribution is added by the Contributor, such addition of the
Contribution causes such combination to be covered by the Licensed
b) a copy of this Agreement must be included with each copy of the
Program.
Contributors may not remove or alter any copyright notices contained
within the Program.
Each Contributor must identify itself as the originator of its
Contribution, if any, in a manner that reasonably allows subsequent
Recipients to identify the originator of the Contribution.
4. COMMERCIAL DISTRIBUTION
TIBCO ActiveMatrix Implementation Type for Scripting in Ruby License
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| Third-Party Software License Agreements
Commercial distributors of software may accept certain
responsibilities with respect to end users, business partners and the
like. While this license is intended to facilitate the commercial use of
the Program, the Contributor who includes the Program in a
commercial product offering should do so in a manner which does not
create potential liability for other Contributors. Therefore, if a
Contributor includes the Program in a commercial product offering,
such Contributor ("Commercial Contributor") hereby agrees to defend
and indemnify every other Contributor ("Indemnified Contributor")
against any losses, damages and costs (collectively "Losses") arising
from claims, lawsuits and other legal actions brought by a third party
against the Indemnified Contributor to the extent caused by the acts or
omissions of such Commercial Contributor in connection with its
distribution of the Program in a commercial product offering. The
obligations in this section do not apply to any claims or Losses relating
to any actual or alleged intellectual property infringement. In order to
qualify, an Indemnified Contributor must: a) promptly notify the
Commercial Contributor in writing of such claim, and b) allow the
Commercial Contributor to control, and cooperate with the
Commercial Contributor in, the defense and any related settlement
negotiations. The Indemnified Contributor may participate in any such
claim at its own expense.
For example, a Contributor might include the Program in a commercial
product offering, Product X. That Contributor is then a Commercial
Contributor. If that Commercial Contributor then makes performance
claims, or offers warranties related to Product X, those performance
claims and warranties are such Commercial Contributor's
responsibility alone. Under this section, the Commercial Contributor
would have to defend claims against the other Contributors related to
those performance claims and warranties, and if a court requires any
other Contributor to pay any damages as a result, the Commercial
Contributor must pay those damages.
5. NO WARRANTY
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE
PROGRAM IS PROVIDED ON AN "AS IS" BASIS, WITHOUT
WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS
OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY
WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Each Recipient is solely responsible for determining the
appropriateness of using and distributing the Program and assumes
all risks associated with its exercise of rights under this Agreement,
including but not limited to the risks and costs of program errors,
compliance with applicable laws, damage to or loss of data, programs
or equipment, and unavailability or interruption of operations.
6. DISCLAIMER OF LIABILITY
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER RECIPIENT NOR ANY CONTRIBUTORS SHALL HAVE
ANY LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL,
SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES
(INCLUDING WITHOUT LIMITATION LOST PROFITS), 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 OR DISTRIBUTION OF THE PROGRAM OR THE
EXERCISE OF ANY RIGHTS GRANTED HEREUNDER, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. GENERAL
remainder of the terms of this Agreement, and without further action
by the parties hereto, such provision shall be reformed to the minimum
extent necessary to make such provision valid and enforceable.
If Recipient institutes patent litigation against a Contributor with
respect to a patent applicable to software (including a cross-claim or
counterclaim in a lawsuit), then any patent licenses granted by that
Contributor to such Recipient under this Agreement shall terminate as
of the date such litigation is filed. In addition, if Recipient institutes
patent litigation against any entity (including a cross-claim or
counterclaim in a lawsuit) alleging that the Program itself (excluding
combinations of the Program with other software or hardware)
infringes such Recipient's patent(s), then such Recipient's rights
granted under Section 2(b) shall terminate as of the date such
litigation is filed.
All Recipient's rights under this Agreement shall terminate if it fails to
comply with any of the material terms or conditions of this Agreement
and does not cure such failure in a reasonable period of time after
becoming aware of such noncompliance. If all Recipient's rights under
this Agreement terminate, Recipient agrees to cease use and
distribution of the Program as soon as reasonably practicable.
However, Recipient's obligations under this Agreement and any
licenses granted by Recipient relating to the Program shall continue
and survive.
Everyone is permitted to copy and distribute copies of this Agreement,
but in order to avoid inconsistency the Agreement is copyrighted and
may only be modified in the following manner. The Agreement
Steward reserves the right to publish new versions (including
revisions) of this Agreement from time to time. No one other than the
Agreement Steward has the right to modify this Agreement. IBM is the
initial Agreement Steward. IBM may assign the responsibility to serve
as the Agreement Steward to a suitable separate entity. Each new
version of the Agreement will be given a distinguishing version
number. The Program (including Contributions) may always be
distributed subject to the version of the Agreement under which it was
received. In addition, after a new version of the Agreement is
published, Contributor may elect to distribute the Program (including
its Contributions) under the new version. Except as expressly stated in
Sections 2(a) and 2(b) above, Recipient receives no rights or licenses
to the intellectual property of any Contributor under this Agreement,
whether expressly, by implication, estoppel or otherwise. All rights in
the Program not expressly granted under this Agreement are
reserved.
This Agreement is governed by the laws of the State of New York and
the intellectual property laws of the United States of America. No party
to this Agreement will bring a legal action under this Agreement more
than one year after the cause of action arose. Each party waives its
rights to a jury trial in any resulting litigation.
JRubyEngine 1.1.6
Copyright (c) 2006, Sun Microsystems, Inc.
All rights reserved.
Redistribution and use in source and binary forms, with or without
modification, are permitted provided that the following conditions are
met:
- Redistributions of source code must retain the above copyright
notice, this list of conditions and the following disclaimer.
If any provision of this Agreement is invalid or unenforceable under
applicable law, it shall not affect the validity or enforceability of the
TIBCO ActiveMatrix Implementation Type for Scripting in Ruby License
Third-Party Software License Agreements
|7
- 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.
- Neither the name of the Sun Microsystems, Inc. nor the names of
contributors may be used to endorse or promote products derived
from this software without specific prior written permission.
THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS
AND CONTRIBUTORS "AS IS" AND ANY EXPRESS 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 COPYRIGHT OWNER OR 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.
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| Third-Party Software License Agreements
TIBCO ActiveMatrix Implementation Type for Scripting in Ruby License
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