JETSTREAM SOFTWARE END USER LICENSE AGREEMENT
IMPORTANT–READ CAREFULLY: PURSUANT AND SUBJECT TO THE LICENSEE AS AN INDIVIDUAL PERSON OR A SINGLE LEGAL ENTITY (“LICENSEE”) ENTERING INTO AN APPLICABLE LICENSE PURCHASE TRANSACTION OR USAGE AGREEMENT FOR THE “SOFTW ARE” (AS DEFINED BELOW) WITH JETSTREAM SOFTWARE INC. (“JETSTREAM SOFTWARE”) OR A THIRD PARTY AUTHORIZED BY JETSTREAM (“AUTHORIZED THIRD PARTY”), UNDER THIS JETSTREAM SOFTWARE END USER LICENSE AGREEMENT (“AGREEMENT”), JETSTREAM SOFTWARE HEREBY OFFERS LICENSEE THE TERMS AND CONDITIONS SET FORTH BELOW. IF LICENSEE ACCEPTS THE OFFER, THIS AGREEMENT SHALL CONSTITUTE A BINDING AGREEMENT BETWEEN LICENSEE AND JETSTREAM SOFTWARE. LICENSEE SHOULD NOT DOWNLOAD, INSTALL OR OTHERWISE USE THE SOFTWARE IN ANY WAY UNTIL LICENSEE HAS CAREFULLY READ THE TERMS OF THIS AGREEMENT. LICENSEE MAY ACCEPT THE OFFER TO ENTER INTO THIS AGREEMENT BY CLICKING “ACCEPT” OR DOWNLOADING, USING OR INSTALLING THE SOFTWARE. IF LICENSEE DOES NOT ACCEPT THIS AGREEMENT (AND AGREE TO ALL ITS TERMS) OR IF LICENSEE HAS NOT ENTERED INTO A LICENSE PURCHASE TRANSACTION OR USAGE AGREEMENT WITH JETSTREAM SOFTWARE OR AN AUTHORIZED THIRD PARTY, LICENSEE SHOULD NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE. IF LICENSEE HAS ALREADY DOWNLOADED THE SOFTWARE, BUT IF LICENSEE DOES NOT ACCEPT THIS AGREEMENT (AND AGREES TO ALL ITS TERMS) OR IF LICENSEE HAS NOT ENTERED INTO A LICENSE PURCHASE TRANSACTION OR USAGE AGREEMENT WITH JETSTREAM SOFTWARE OR AN AUTHORIZED THIRD PARTY, LICENSEE SHOULD UNINSTALL THE SOFTWARE AND IMMEDIATELY DISCONTINUE ITS USE, AND SHOULD NOT ACCEPT THIS AGREEMENT.
The software programs, device drivers, data and/or other information identified in an applicable exhibit or as otherwise described in a JetStream Software authorized order acknowledgement mechanism or an Authorized Third Party’s order acknowledgement mechanism, together with Updates (as defined in the JetStream Support Services Policy to same provided or made accessible to Licensee by JetStream Software or an Authorized Third Party (collectively “Software”)) is provided to Licensee under the terms of this Agreement between Licensee and JetStream Software. The Software is owned by JetStream Software and/or its third party licensors if applicable (“Licensors”). The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
a. Subject to the terms and conditions contained herein (including the license restrictions in Section 2) and Licensee’s payment of all license fees associated with the license of the Software under the payment terms of JetStream Software or an Authorized Third Party as applicable, JetStream Software grants to Licensee a limited, non-exclusive, non-sublicensable, non- transferable, license under JetStream Software’s intellectual property rights to install and use (solely on the server, at the site Licensee designates during the download process) the Software in executable form solely for the purpose identified in the documentation accompanying the Software (the “License”). The Software is “in use” when it is either downloaded, copied, loaded into RAM or installed into the hard disk or other permanent memory of Licensee’s designated server. Licensee is not allowed absent JetStream Software’s prior written authorization to copy or otherwise reproduce the Software, nor to install or use the Software on any server, computer or like device except those for which use of the software has been mutually agreed and authorized.
b. Notwithstanding anything to the contrary in this Agreement including Section 1a above, if Licensee is using the Software in question under an evaluation license, then such Software (“Evaluation Deliverables”) are made available to Evaluator solely for Evaluator’s internal testing for suitability for purchase from JetStream Software (the “Evaluation Purpose”), solely at the site identified by Evaluator to JetStream Software during download (“Approved Site”). The Evaluation Deliverables are NOT FOR PRODUCTION USE, and no implied license is granted in connection with such evaluation. JetStream Software hereby grants Evaluator a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license to use the Evaluation Deliverables solely for the Evaluation Purpose at the Approved Site. Title to all Evaluation Deliverables shall remain with JetStream Software at all times and JetStream Software reserves its intellectual property rights. Evaluator agrees that JetStream Software may audit Evaluator’s usage and number of instances of Evaluation Deliverables and provide all information necessary for JetStream Software to determine Evaluator’s compliance with the terms and conditions of this license.
c. Notwithstanding anything to the contrary in this Agreement including Section 1a and 1b above, if Licensee is using the Software without entering into a purchase transaction for such Software, then such Software may be provided under a Usage Agreement, which may be entered into through instructions for authorized access to the Software. All terms and conditions of this Agreement apply to Licensee whether the Software is obtained through a purchase transaction or a usage agreement. Licensee agrees that JetStream Software may terminate Licensee’s rights to use Software obtained through a usage agreement at any time.
2. License Restrictions.
a. Licensee shall only use the Software on the enterprise servers for which Licensee was authorized to download and use the Software. Any use of the Software by Licensee in a manner not expressly allowed by this Agreement will immediately allow JetStream Software to terminate Licensee’s license to the Software.
b. Licensee acknowledges and agrees that the Software is licensed and not sold. Except for the rights in the Software expressly granted to Licensee, JetStream Software and its Licensors reserve and retain all rights, title, and interest in and to the Software, any derivatives thereto, and any corresponding intellectual property (including without limitation any images, and text incorporated into the Software, any accompanying printed materials, and any copies of the Software). In addition, JetStream Software retains ownership of the means of integration, testing and integration of the Software onto any server or like device. No implied licenses are granted to Licensee.
c. The Software may incorporate third party software licensed under an open source license (“Open Source Software”). Such Open Source Software is licensed to Licensee under terms provided by the Open Source Software licensors and not the terms of this Agreement, and Licensee agrees to the terms of such Open Source Software licenses. Licensee may not modify, adapt, translate or create derivative works (e.g. new versions) of the Software, except as expressly permitted by any applicable licenses with respect to any Open Source Software components of the Software. Except as expressly required by licenses of any Open Source Software components of the Software (if any), no source code is provided under this Agreement.
d. To the extent enforceable by law, Licensee shall not reverse engineer, disassemble, decompile, rent, lease, or encumber the Software, or re- create or discover the source code of any object code version of the Software, nor shall Licensee provide the Software to any Third Party intending to do so. Licensee may not embed or combine the Software within any other software product nor any unapproved device, except as authorized by JetStream Software. Licensee’s exercise of any license or rights granted to Licensee under this Agreement shall be at Licensee’s sole expense.
e. Licensee agrees that the Software is proprietary and confidential information of JetStream Software and its Licensors, which Licensee shall strictly protect from unauthorized dissemination internally and/or disclosure to third parties. Licensee agrees that the Software or any portion thereof may not be sold, transferred, relicensed or otherwise provided to any third parties or permit third parties to access or use of the Software, except as authorized by and subject to conditions defined by JetStream Software. Licensee shall not separate the Software into component parts for sublicense, sharing, distribution or other form of transfer to a third party. If Licensee provides the Software or any portion thereof to any third party with the permission of JetStream Software, Licensee shall only do so with the third party’s agreement that that the terms and conditions of this agreement shall apply to the third party as well. Licensee agrees that JetStream Software may revoke the Licensee’s permission to provide the Software to any third party at any time.
f. Licensee agrees not to remove and to retain any copyright notices, licensing statements or list of disclaimers included with the Software with regard to each copy of the Software Licensee receives or makes subject to the terms of this Agreement.
g. Licensee shall not create nor disclose benchmarks or other performance comparisons of the Software without JetStream Software’s express prior written consent.
h. Licensee acknowledges that JetStream Software may be irreparably harmed in the event of Licensee’s actual or threatened violation of Licensee’s obligations hereunder and that in addition to other remedies to which it may be entitled, JetStream Software shall be entitled to seek injunctive relief or any appropriate decree of specific performance for any actual or threatened violations or breach by or on Licensee’s behalf.
i. Licensee grants JetStream Software and its Licensors a worldwide, irrevocable, perpetual, transferable, royalty-free license with the right to sublicense, distribute and modify, to any feedback (including information, suggestions, ideas or comments) provided by Licensee to JetStream Software regarding the Software.
3. Support Services. If Licensee has purchased support services with the Software, these services will be provided to Licensee under the JetStream Support Services Policy available at such URL as JetStream Software may designate, which may be revised from time to time by JetStream Software in JetStream Software’s sole discretion. Support services for Software under this Policy shall commence upon the later of: (a) the date of delivery of the Software by JetStream Software to Licensee or (b) the date that the Licensee subscribes to such support services through an official communication including, but not limited to, a Purchase Order for such services. Any supplemental or updated materials provided to Licensee as part of the support services are considered part of the Software and subject to the terms and conditions of this Agreement or other agreement that is applied to such updates. Payment of fees for support services does not entitle Licensee to obtain rights to use or have access to any subsequent new versions or upgrades to the Software; Licensee may be obligated to purchase such rights separately if Licensee wishes to install and use such new versions, subject to the terms and conditions of the JetStream Support Services Policy. Except as required under applicable law or under Licensee’s fully signed written agreement with JetStream Software or an Authorized Third Party, Licensee is fully responsible for payment of all taxes, without reduction of any fees, charges or expenses paid by Licensee or received by JetStream Software with respect to the Software, including without limitation sales, use, value added, withholding or similar taxes, (excluding taxes based upon JetStream Software’s net income). Licensee is fully responsible for training Licensee’s personnel to use the Software. JetStream Software shall have no training obligations unless Licensee enters into a separate contract with JetStream Software (or an Authorized Third Party) for installation and/or training services as preapproved by JetStream Software. Subject to such policies, conditions, fees and reimbursement policies as JetStream Software may establish, Licensee may request professional services from JetStream Software associated with this Agreement, which shall be offered in JetStream Software’s sole discretion subject to the terms and conditions of a separate agreement or service policy determined by JetStream Software.
4. Delivery and Access. Delivery of the Software is made to Licensee electronically. Licensee is fully responsible for downloading and installation of the Software, as well as preventing unauthorized distribution or access to the Software by third parties, including guarding any keys or digital information required to install or enable operation of the Software. Electronic delivery may be accomplished by JetStream Software electronically transmitting Software or keys to Licensee or by making Software or keys available for download by Licensee from a protected download site such as an FTP site. Except as provided herein or in a separate contract with JetStream Software, Licensee is responsible for supplying all hardware, software, and services necessary to use the Software. Licensee acknowledges that the availability and performance of the Software may be subject to interruption or delay due to causes beyond the reasonable control of JetStream Software.
5. Records and Compliance; Audit Rights. Licensee shall maintain and provide JetStream Software upon request with appropriate information and records demonstrating Licensee’s compliance with applicable law, regulations and standards organizations. Licensee shall further maintain complete, clear, and accurate records of: (a) the location and use of each copy of the Software; and (b) any other information which may be reasonably requested by JetStream Software to determine whether Licensee is paying correct fees and/or complying with the terms of this Agreement and shall provide certified copies of such records at JetStream Software’s request. JetStream Software or its representatives shall have the right, upon ten (10) days written notice, during Licensee’s normal business hours, to examine and audit Licensee’s books, records, computing devices, and operations to verify Licensee’s compliance with applicable law, regulations, standards organizations and/or this Agreement. Such examination or audit may be performed, in JetStream Software’s sole discretion, onsite at Licensee’s premises or through remote access to Licensee’s systems. If any such examination discloses unpaid license or other fees, Licensee shall reimburse JetStream Software for the full amount of any such unpaid license or other fees plus interest at the rate of the lesser of twelve percent (12%) per annum or the maximum rate allowed under applicable law. Moreover, in the event the inspection or examination reveals a violation of applicable law, regulations and/or license restrictions under this Agreement, Licensee shall reimburse JetStream Software for the actual reasonable costs and expenses incurred in connection with such onsite or remote operations audit.
6. DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTIES AND NEITHER JETSTREAM SOFTWARE NOR ITS LICENSORS MAKE ANY REPRESENTATION OR WARRANTY, STATUTORY OR OTHERWISE, IN LAW OR FROM THE COURSE OF DEALING OR USAGE OF TRADE, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, OR NON-INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, OR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION. JETSTREAM SOFTWARE DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR THA T THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. LICENSEE ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE. SHOULD THE SOFTWARE PROVE DEFECTIVE, THEN UNLESS LICENSEE IS CURRENT ON SUPPORT, THEN LICENSEE, AND NOT JetStream Software (NOR JETSTREAM SOFTWARE’S LICENSORS OR AUTHORIZED THIRD PARTIES IF APPLICABLE), ASSUME THE ENTIRE COST OF NECESSARY SERVICING, REPAIR, OR CORRECTION.
7. Indemnity. Licensee shall at Licensee’s own expense indemnify, defend and hold harmless JetStream Software and its Licensors against all claims, suits, proceedings, losses, damages and expenses (including reasonable attorneys’ fees) arising from Licensee’s breach of license or other provisions of this Agreement.
8. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL JETSTREAM SOFTWARE OR ITS LICENSORS, NOR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, LICENSORS, LICENSEES OR AFFILIATES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE DOWNLOAD, DISTRIBUTION, USE OR PERFORMANCE OR NON-PERFORMANCE OF THE SOFTWARE, EVEN IF JETSTREAM SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF LICENSEE IS DISSATISFIED WITH ANY PORTION OF THE SOFTWARE, OR WITH ANY OF THESE TERMS OF SERVICE, LICENSEE’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SOFTWARE. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ANY REMEDY PROVIDED FOR HEREUNDER IN ITS ESSENTIAL PURPOSE. IN NO EVENT WILL JETSTREAM SOFTWARE’S OR ITS LICENSORS’ TOTAL LIABILITY TO LICENSEE EXCEED US$5.00. THE ABOVE LIMITATION MAY NOT APPLY IN CERTAIN JURISDICTIONS WHICH PROHIBIT EXCLUDING OR LIMITING LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES.
9. The Software is provided with “RESTRICTED RIGHTS.” Use, duplication or disclosure by the Government is subject to restrictions as set forth in FAR 52.227-14 and DFARS 252.227-7013 et seq. Use of the Software by the Government constitutes acknowledgement of JetStream Software’s proprietary rights therein. Contractor or Manufacturer is JetStream Software Inc., 2870 Zanker Road, Suite 205, San Jose, CA 95134 USA.
10. Assignment. Licensee may not assign or transfer this Agreement (by contract or by operation of law) in part or in whole without JetStream Software’s prior consent, and any attempt to do so shall be null and void. JetStream Software may freely assign or delegate this Agreement.
11. Term and Termination. This Agreement commences on the date Licensee accepts the Agreement and remains effective until the Agreement is terminated. JetStream Software may terminate this Agreement and the license immediately and without notice if Licensee breaches this Agreement. Upon termination of this Agreement, Licensee must delete or destroy all unused copies of the Software and report same to JetStream Software.
12. High Risk Activities. The Software is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail- safe performance, or any other application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage (collectively, “High Risk Activities”). JETSTREAM SOFTWARE AND ITS LICENSORS DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES AND SHALL NOT BE LIABLE IN ANY WAY FOR ANY LIABILITIES OR DAMAGES ARISING FROM SUCH USE.
13. General. This Agreement (together with other existing agreements, if any between Licensee and JetStream Software (or an Authorized Third Party) associated with the Software) contains the entire understanding between the parties with respect to Licensee’s purchase, installation and use of the Software. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. This Agreement is governed by and construed under the laws of the State of California, USA and controlling U.S. federal law without regard to conflicts of laws provisions thereof. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement shall be adjudicated in the state or federal courts of Santa Clara County, California, USA, and the parties hereby agree to the exclusive jurisdiction and venue of such courts. Licensee shall not remove or export from the United States or re-export from anywhere any part of the Software or any direct product thereof to any country in violation of U.S. Export Administration Regulations, or a successor thereto, except in compliance with and with all licenses and approvals required under applicable export laws and regulations including, without limitation, those of the U.S. Department of Commerce. Any waivers, supplements or amendments of this Agreement shall be effective only if made using a mechanism preapproved by JetStream Software or by a written agreement signed by an authorized representative of each party. Licensee agrees that the Licensors if any are third party beneficiaries of this Agreement to enforce Licensee’s performance of the terms and conditions of this Agreement. The provisions of Sections 2, 3, 5, 6, 7, 8, 9, 10, 11, 12 and 13, and the final sentence of Sections 1a and 1b, shall survive the termination or expiration of this Agreement.