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bk bkcl(1) BitKeeper User's Manual bk bkcl(1) NAME bk bkcl - display commercial use BitKeeper license LICENSE BITKEEPER SOFTWARE END USER LICENSE AGREEMENT NOTICE: PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE BITKEEPER SOFTWARE. BITMOVER, INC. ("BITMOVER") IS WILLING TO LICENSE THE SOFTWARE ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS END USER LICENSE AGREEMENT ("AGREEMENT"). BY CLICKING ON "ACCEPT" AND/OR INSTALLING AND/OR USING THE SOFTWARE, YOU WILL INDICATE YOUR AGREEMENT WITH ALL OF THE TERMS CONTAINED HEREIN. YOU MAY ACCEPT THIS AGREEMENT BY CLICKING ON THE "ACCEPT" BOX BELOW. YOU MAY REJECT THIS AGREEMENT, AND TERMINATE THE INSTAL- LATION PROCESS AND/OR YOUR USE OF THE SOFTWARE, BY CLICKING THE "CANCEL" BUTTON BELOW. IF YOU DO NOT ACCEPT THIS AGREEMENT, THEN BITMOVER IS UNWILLING TO LICENSE THE SOFTWARE TO YOU, IN WHICH EVENT YOU SHOULD RETURN THE SOFTWARE TO THE PLACE OF PUR- CHASE AND RECEIVE A FULL REFUND. 1. Software. You are interested in obtaining from BitMover licenses to use certain application software programs, as described more fully in the attached or referenced Product Schedule, including any Updates and Upgrades you may receive pursuant to this Agreement and all copies and design data, and accompanying Documentation (the "Software"), on terms and subject to the conditions set forth herein. 2. Scope of Use. BitMover expressly reserves all rights in the Software not specifically granted to you. (a) Evaluation License. If you have chosen an Evaluation License, you are granted an evaluation license authorizing you to install, store, load, execute, display and evaluate internally (collectively, "Evaluate") the Software on the same terms and conditions applicable under Section 2(b) (Operating License) for a period of thirty (30) calendar days after acceptance of this Agreement (the "Evaluation Period"). In the event that you continue Use of the Soft- ware after completion of the Evaluation Period, you shall be deemed to have elected to acquire an Operating License to Use the Software under Subsection (b) (Operating License) in accordance with the other terms and conditions of this Agreement; you are required to pay the applicable fees as set forth in the attached or referenced Fee Sched- ule. If you do not elect to acquire an Operating License, this Agreement shall be deemed terminated and you shall destroy all copies of the Software in your possession or control. THE SOFTWARE CONTAINS A FEATURE THAT DISABLES ITS OPERATION AFTER THE EXPIRATION OF THE EVALUATION PERIOD. WORKS THAT YOU CREATE DURING THE EVALUATION PERIOD MAY REQUIRE THE SOFTWARE IN ORDER TO BE ACCESSED. YOU SHOULD TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT. (b) Operating License. As long as you comply with the terms and conditions of this Agreement, BitMover hereby grants you a world-wide nonexclusive license (an "Operating License") to install, store and load the Software you have selected on appropriately configured equipment and to use, execute, and/or display ("Use") the Software solely for your ordinary and customary business purposes, for the license term set forth below. (c) Transfer. Neither this Agreement, nor any rights or obli- gations hereunder, may be transferred, assigned (by opera- tion of law or otherwise), delegated, sub-licensed, relo- cated or moved to another person, in whole or in part, without BitMover's prior written consent and any attempt to the contrary shall be void and of no legal effect. 3. Term. (a) Leased Licenses: If your Operating License(s) is/are Leased License(s) it/they shall continue in full force and effect for a period of three (3) months, six (6) months or one (1) year ("Initial Term") as you have selected, unless termi- nated earlier in accordance with Section 14 (Termination). If you are not in default of this Agreement, you shall have the opportunity to renew the Operating License(s) for suc- cessive like periods (each, a "Renewal Term"). At least thirty (30) days prior to the expiration of any Initial Term or Renewal Term, BitMover shall inform you of the then-current fees for renewal and BitMover's then-current terms and conditions ("New Terms and Conditions"). Your Renewal Term shall be effective on the first day after the expiration of the Initial Term or Renewal Term, as the case may be. For Leased Licenses, the Initial Term and any Renewal Term are collectively referred to herein as the "Leased License Term". Upon renewal, you shall pay any applicable license and/or support fee with respect to such Software. If you fail to make payment of any required license and/or support fees when due, your Use of the Soft- ware for any purpose after the expiration of the paid Leased License Term is not authorized. Upon expiration of the Leased License Term the Software may automatically dis- able itself. Works that you create during the Leased License Term may require the Software to run. You should therefore take precautions to avoid any loss of data that may result. Renewal shall not operate to renew or other- wise extend any warranty obligations under Section 11 (Indemnification, Exclusive Remedy, Warranty & Disclaimer). (b) Perpetual Licenses: If your Operating License(s) is/are Perpetual License(s) continue in full force and effect in perpetuity, unless terminated earlier in accordance with Section 14 (Termination). If you are not in default of this Agreement, your annual support shall be renewed auto- matically unless you notify BitMover in writing at least thirty (30) days prior to expiration that you will not renew. At least thirty (30) days prior to the expiration of your then-current support term, BitMover shall inform you in writing of the then-current fees for renewal. Upon renewal, you shall pay the applicable support fee. If you have a current support contract, you may elect to adopt a release more current than your Supported Release, as desig- nated at the time you purchased your license, upon your written acceptance of New Terms and Conditions. Renewal of the annual support option shall not operate to renew or otherwise extend any warranty obligations under Section 11 (Indemnification, Exclusive Remedy, Warranty & Disclaimer). 4. Restrictions. You may not yourself and may not permit or enable anyone to: (i) modify or translate the Software; (ii) reverse engineer, decom- pile, or disassemble the Software or otherwise reduce the Soft- ware to a form understandable by humans, except to the extent this restriction is expressly prohibited by applicable law notwithstanding this limitation; (iii) rent, lease, loan, resell or create derivative works based on the Software; (iv) merge the Software with another product; (v) separate the Software into its component parts; (vi) copy the Software, except (A) as expressly provided herein and (B) as reasonably necessary for back up and recovery purposes; or (vii) remove or obscure any proprietary rights notices, labels, copyrights, trademarks, ser- vicemarks, confidentiality notices and/or restricted rights notices on or in the Software. 5. Object Code & Documentation. (a) Object Code. The Software shall be provided to you and you may Use the Software strictly in machine-readable object code format. No source code or technical-level documenta- tion are licensed under this Agreement. (b) Documentation. BitMover shall provide you with online doc- umentation, included with the Software, describing in rea- sonable detail understandable by a user of general profi- ciency the Use and operation of the Software (the "Documen- tation"). The Documentation shall be supplied downloadable form and you may reproduce it only for purposes authorized herein. 6. Acceptance. You shall be deemed to have accepted the Software unless you notify BitMover in writing of a material defect in the Software within ten (10) business days after the later of (a) delivery of the Software or (b) effectiveness of the Operating License. 7. Support Services. After expiration of the Limited Performance Warranty under Sec- tion 11, you shall have the option (exercised by payment of the Annual Lease Fee for Leased Licenses or the Annual Support Fee for Perpetual Licenses, each as set forth in the then-current Fee Schedule) to receive the Software support services set forth below; provided that if you do not elect to receive Software support services in any year, your rights under this Section 7 shall immediately terminate, with no right to elect coverage thereafter. To reinstate support, you must pay all fees that would have been paid for continuous coverage to the date of reinstatement. (a) Hotline Service. BitMover's hotline service shall mean assistance for error correction and advice on the Use and operation of the all maintained versions of the Software, Monday through Friday, from 9:00 a.m. to 5:00 p.m., Bit- Mover's local time. Service requests transmitted during non-business hours shall be considered received by BitMover on the next business day. Trouble Reports shall be commu- nicated by e-mail (preferably) or by telephone or tele- copier machine and shall provide sufficient information to enable BitMover to replicate and diagnose the reported problem. BitMover shall be provided reasonable access to the Software via remote dial-in contact, subject to your normal security requirements. Unless otherwise agreed in writing, out-of-scope work or support services outside reg- ular business hours shall be subject to a surcharge at Bit- Mover's then-current labor rate. (b) Supported Release. "Supported Release" shall mean the release designated in the attached or referenced Licenses Schedule, plus any Updates. "Updates" shall mean revisions to the Software and associated Documentation which BitMover generally distributes to its customers as updates. Bit- Mover's designation of an item as a new version or an enhancement ("Upgrade") rather than an Update shall be con- clusive. Upgrades are not provided as part of the support services, except at the sole discretion of BitMover. Bit- Mover shall provide maintenance for all versions of the Software released within twelve months of the most recent version of the Software. (c) Certain Conditions. BitMover shall not be obligated to provide support services if: (i) the reported error was caused by changes not authorized in writing by BitMover in Software source code, program parameters or other user adjustable features; (ii) the error results from operator error, errors in data not supplied by BitMover or Use that is not in accordance with the Documentation; (iii) the error is in a prior release that was corrected through issuance of an Update that you have failed to install, (iv) the Software does not pass the included regression tests when run on your system, or (v) you are in default of this Agreement. (d) Training. This Agreement does not provide for any Training Services with respect to the Use and operation of the Soft- ware. BitMover shall be reasonably available to provide Training Services under a signed amendment to this Agree- ment and in consideration for its then-current fees. (e) Any software code provided to you as part of the support services is part of the Software and subject to the terms and conditions of this Agreement. If you provide technical information to BitMover in order for BitMover to provide support services, BitMover may use such information for product support and development. 8. Prices, Payment & Taxes. The prices and fees for Software or other technology provided hereunder, any Support Services and other deliverables are set forth on the attached or referenced Fee Schedule. Upon thirty (30) days notice to you, BitMover may change the terms of the attached or referenced Fee Schedule, except that prices are sub- ject to change without notice. License fees shall be invoiced as specified in the attached or referenced Fee Schedule. Invoiced amounts shall be paid within thirty (30) days from receipt of invoice. You may not withhold or "setoff" any amounts due hereunder. BitMover reserves the right to stop work and assert appropriate liens until all amounts due are paid in full. Any late payment shall be subject to any costs of collec- tion (including reasonable legal fees) and shall bear interest at the rate of one and one-half (1.5) percent per month or frac- tion thereof (but no more than the maximum percentage allowed by applicable law) until paid. Prices quoted do not include and you shall pay, indemnify and hold BitMover harmless from all sales, use, gross receipts, value-added, GST or other tax (including interest and penalties imposed thereon) on the trans- action contemplated herein. 9. Ownership. As between the parties to this Agreement, Bitmover and its licensors own the Documentation, the Software and all intellec- tual property rights embodied therein, including copyrights and valuable trade secrets embodied in the Software's design, code and coding methodology. The Software is protected by United States copyright laws and international treaty provisions and is the subject of pending U.S. patent applications and other applicable intellectual property laws and treaties. This Agree- ment provides you only a limited use license, and no ownership of any intellectual property. In the event that you or any of your employees, independent contractors and/or affiliates (each a "person") makes or has made any modifications or extensions of the Software or Documentation, such modifications and extensions shall be owned by BitMover, and you shall cooperate, and cause any such person to cooperate, with all reasonable requests of BitMover in connection with the documentation and establishment of its ownership, including without limitation full cooperation with patent applications. You agree that you will not, at any time, contest anywhere in the world BitMover's ownership of, or the validity of BitMover's rights in, the Software. 10. Confidentiality. (a) Definition and Acknowledgment. "Confidential Information" shall mean proprietary products and trade secrets, embody- ing creative efforts and confidential information, ideas, and expressions. You hereby acknowledge and agree that the Software constitutes and contains valuable Confidential Information of BitMover and/or its licensors, and that Con- fidential Information of BitMover also includes its busi- ness and marketing strategies, competitive information, products (whether or not commercially released) and techni- cal specifications, research and development activities, source code and algorithms, features, methods of work, user interfaces, information provided as part of the support services, and any of BitMover's and/or its licensors' intellectual property of any sort. BitMover hereby acknowledges and agrees that you may provide BitMover with Confidential Information during the course of normal use and support of the Software. Accordingly, each party agrees to treat Confidential Information in accordance with the confidentiality requirements and conditions set forth below. (b) Exclusions. Confidential Information does not include: (i) information already known or independently developed by the receiving party outside the scope of this relationship by personnel not having access to any Confidential Informa- tion; (ii) information in the public domain through no wrongful act of the receiving party; or (iii) information obtained by the receiving party from a third party who was free to disclose it. (c) Maintenance of Confidentiality. Each party hereby agrees during the effectiveness of this Agreement and at all times thereafter to keep confidential all Confidential Informa- tion disclosed to it by the other party hereunder. Each party shall use at least the same degree of care in safe- guarding the Confidential Information as it uses in safe- guarding its own confidential information, but in no event shall it use less than reasonable care. Upon termination of this Agreement and/or the licenses granted hereunder, each party shall destroy all Confidential Information in its possession or control and cease all further use thereof. Any information derived in violation of the covenants in Section 4 (Restrictions) shall automatically be deemed Confidential Information owned exclusively by BitMover and/or its licensors, as between the parties; you shall notify BitMover promptly of any such violation and cooperate with BitMover to minimize the damage caused to BitMover thereby. (d) Disclosures Required by Law. If a receiving party is legally compelled to disclose any of the disclosing party's Confidential Information, then, prior to such disclosure, the receiving party will (a) immediately notify the dis- closing party, (b) assert the privileged and confidential nature of the Confidential Information and (c) cooperate fully with the disclosing party in protecting against any such disclosure and/or obtaining a protective order narrow- ing the scope of such disclosure and/or use of the Confi- dential Information. In the event that disclosure is required, the receiving party may disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements. (e) Injunctive Relief. Each party acknowledges that a breach or threatened breach of the provisions of this Section 10 would cause irreparable harm not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief shall be available to prevent or remedy any such breach, and neither party shall assert or otherwise suggest the necessity of posting bond, nor object that damages would be an adequate remedy. 11. Indemnification, Exclusive Remedy, Warranty & Disclaimer. (a) Indemnification. BitMover shall defend or settle any third party claim or suit or proceeding brought against you so far as it is based on an allegation that the Software fur- nished hereunder infringes or misappropriates any third party (A) United States copyright, (B) United States trade- mark, or (C) trade secret rights enforceable in the United States ("IP Claim"). Notwithstanding the foregoing, Bit- Mover shall have no liability for any claims of infringe- ment and/or misappropriation of intellectual property rights arising out of: compliance with your designs, speci- fications or instructions; modifications of the Software by any party other than BitMover other than in accordance with BitMover's written instructions; Use of the Software other than as specified in relevant BitMover publications; Use of the Software in combination with a third-party product, where Use of the Software without such product would not give rise to a claim; Use of any version of the Software other than BitMover's then-current unaltered release; a product that you make, use or sell; or infringement by you that is deemed to be willful ("Excluded Claims"). You shall indemnify BitMover against all liability, damages and costs (including reasonable attorneys' fees) resulting from or related to any Excluded Claim. BitMover shall pay all costs and damages finally awarded against you, or any set- tlement agreed upon by BitMover in its sole discretion, specifically attributable to a covered IP Claim, provided that you (i) promptly give BitMover written notice of the IP Claim, (ii) give BitMover the full authority to defend the IP Claim, and (iii) provide BitMover with all informa- tion and assistance BitMover requests in connection with such defense. You shall have the right to hire separate counsel at your sole expense. If the Software becomes, or in BitMover's opinion is likely to become, the subject of an IP Claim that BitMover is required to defend, then Bit- Mover may (at its option and expense) either: (i) procure for you the right to continue using the Software; (ii) rework the Software so as to make it non-infringing while preserving the original functionality; or (iii) replace the Software with software that is functionally equivalent in all material respects; or (d) if none of the foregoing is practicable in BitMover's reasonable judgment, BitMover will refund a reasonable amount, not to exceed all amounts paid for the Software at issue (for Leased Licenses, the refund shall not exceed fees paid for the then-current Ini- tial or Renewal Term; for Perpetual Licenses, the license fee shall be amortized over five years and the refund shall not exceed the unamortized amount, and after the end of the fourth year the refund shall not exceed one-fifth of the license fee). (b) EXCLUSIVE REMEDY. IF BITMOVER PAYS A REFUND TO YOU PUR- SUANT TO SECTION 11(A), BITMOVER SHALL HAVE NO FURTHER OBLIGATION TO YOU WITH RESPECT TO ANY IP CLAIMS. SECTION 11(A) PROVIDES YOUR SOLE AND EXCLUSIVE REMEDY FOR THIRD- PARTY CLAIMS RELATING TO THE SOFTWARE. (c) Limited Performance Warranty. BitMover represents and war- rants for a period of ninety (90) days ("Warranty Period") that it will make a reasonable effort to ensure the Soft- ware operates substantially in accordance with the applica- ble Documentation; provided, that (i) the Software is installed, implemented and operated in accordance with all instructions supplied by BitMover; (ii) you notify BitMover of any such defect within ten (10) calendar days after the appearance thereof, and in any case within the warranty period; (iii) you have properly installed all Updates made available with respect to the Software, and updates recom- mended by BitMover with respect to any third party software products (including operating system software) that materi- ally affect the performance of the Software; (iv) you have properly maintained all associated equipment, software and environmental conditions in accordance with applicable specifications and industry standards; (v) you have not introduced other equipment or software creating an adverse impact on the Software; (vi) you have paid all amounts due hereunder and is not in default of any provision of this Agreement; (vii) any functional design or specification provided by you is an accurate and complete rendering of the relevant features, applicable interfaces and associated operating environment; and (viii) you have made no changes nor permitted any changes to be made (other than with the express written approval of BitMover) to the Software. Corrections made pursuant to this Section 11(d) shall not operate to extend the warranty period hereunder. (d) Warranty Disclaimer. THE WARRANTY SET FORTH ABOVE IS EXCLUSIVE. NEITHER BITMOVER NOR ITS LICENSORS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE. BITMOVER DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. BITMOVER MAKES NO WARRANTIES WITH RESPECT TO (i) SERVICES, (ii) SOFTWARE WHICH IS LICENSED AT NO COST OR (iii) EXPERIMENTAL BETA CODE; ALL OF WHICH ARE PROVIDED "AS IS." EXCEPT TO THE EXTENT PROHIBITED BY LAW AND EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 11, BITMOVER AND ITS LICENSORS HEREBY DISCLAIM, WITH RESPECT TO ALL SOFTWARE, SUPPORT SERVICES OR OTHER DELIVERABLES PROVIDED HEREUNDER, ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, ACCURACY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING, AND ANY WARRANTY AGAINST INTERFERENCE WITH YOUR QUIET ENJOYMENT OF THE SOFT- WARE. ANY CHANGES TO THE SOFTWARE NOT AUTHORIZED BY BIT- MOVER IN WRITING WILL VOID ALL WARRANTIES AS TO SUCH SOFT- WARE, AND SUCH SOFTWARE IS THEN PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND WHATSOEVER. TO THE EXTENT THAT BIT- MOVER MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICA- BLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. THIS LIMITED WAR- RANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH MAY VARY FROM JURISDICTION TO JURISDICTION. (e) No Hazardous Uses. The Software is not designed to be used in hazardous environments requiring fail-safe controls and/or where the failure or inaccuracy of the Software might result in death, personal injury, environmental dam- age and/or mass destruction. BITMOVER DISCLAIMS ANY WAR- RANTY, EXPRESS OR IMPLIED, OF FITNESS FOR SUCH PURPOSES. You shall defend or settle any claim (including reasonable attorneys' fees) against BitMover and/or its licensors arising out of or in connection with your use of the Soft- ware as described in this Section 11(e). 12. Limitation of Remedies & Liabilities. The parties acknowledge that the following provisions reflect a fair allocation of risk, and that BitMover would not be able to provide the Software on an economic basis without such limita- tions: (a) Limitation of Remedies. Except for (i) certain injunctive relief authorized under Section 10 (Confidentiality) and (ii) the exclusive remedy for claims of infringement and/or misappropriation provided in Section 11(a), your sole and exclusive remedies for BitMover's default under this Agree- ment shall be (A) to obtain the repair, replacement or cor- rection of the defective Software or services to the extent warranted under Section 11 (Indemnification, Exclusive Rem- edy, Warranty & Disclaimer) or, (B) if BitMover reasonably determines that such remedy is not economically or techni- cally feasible, to obtain an equitable partial or full refund of amounts paid with respect to the Software or ser- vices at issue. (b) Limitation of Liabilities. NOTWITHSTANDING ANYTHING CON- TAINED IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL BITMOVER OR ITS LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, FOR ANY INDIRECT, INCIDEN- TAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR THE INABILITY TO ACCESS DATA, LOST SAVINGS, LOST PROFIT OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OF THE PROVISION OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF BITMOVER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SHALL THE CUMULATIVE LIABILITY OF BITMOVER AND ITS LICENSORS TO YOU OR ANY THIRD PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS OR ACTIONS RELATED TO, ARISING FROM, OR BASED UPON THIS AGREEMENT EXCEED THE TOTAL OF THE FEES ACTUALLY PAID BY YOU, IF ANY, WITHIN THE THEN-CURRENT TERM OF THE RELEVANT LICENSE. FOR PURPOSES OF THIS SECTION 12(B), FEES PAID WITH RESPECT TO PERPETUAL LICENSES SHALL BE AMORTIZED OVER A FIVE-YEAR PERIOD FOR THE FIRST FOUR YEARS OF THE EFFECTIVENESS OF THE LICENSE; THEREAFTER BIT- MOVER AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY AMOUNT EXCEEDING ONE-FIFTH OF THE LICENSE FEES PLUS ANY SUPPORT FEES ACTUALLY PAID BY YOU FOR THE YEAR IN WHICH SUCH CLAIM, DEMAND OR ACTION ARISES. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. Nothing in this Agreement limits Bit- Mover's liability to you in the event of death or personal injury resulting from BitMover's negligence or fraud. 13. Notices. Except as otherwise specifically provided in this Agreement, notices sent to either party shall be effective when delivered in person or transmitted by telecopier ("fax") machine, one (1) day after being sent by overnight courier, or two (2) days after being sent by first class mail postage prepaid to the parties respective addresses set forth in the attached or referenced Licenses Schedule. A facsimile of this Agreement and notices generated in good form by a fax machine (as well as a photocopy thereof) shall be treated as "original" documents admissible into evidence unless a document's authenticity is genuinely placed in question. 14. Termination. (a) Operating License(s). Operating Licenses are valid for the term stated in Section 3 (Term) unless earlier terminated: (i) by mutual consent; (ii) by your election; or (iii) by BitMover upon ten (10) days written notice of your unreme- died material breach of this Agreement. In addition, Bit- Mover shall have no obligation to perform support services or other services for which payment is not received when due. Immediately upon expiration or termination of any Operating License granted pursuant to this Agreement for any reason, you must destroy all copies of the Software and certify thereto upon BitMover's request. (b) Survival of Provisions. The parties' rights or obligations under the following sections shall survive any termination or expiration of this Agreement or any Operating License hereunder: Section 10 (Confidentiality), Section 11 (Indem- nification, Exclusive Remedy, Warranty & Disclaimer), Sec- tion 12 (Limitation of Remedies & Liabilities), this Sec- tion 14 and Section 15 (Miscellaneous). (c) Software and Agreement Updates. BitMover shall have the right to change or add to the terms of this Agreement at any time, and to change, discontinue or impose conditions on any feature or aspect of newer versions of the BitKeeper Software, or any internet-based services provided to you or made available to you through the use of the BitKeeper Software. You will receive notification of the new terms upon first use of the newer BitKeeper Software containing said terms. Your use of the newer BitKeeper Software shall be conditional on acceptance of the associated Agreement. For the latest version of this Agreement go to http://www.bitkeeper.com/. (d) Patent Litigation. In the event that you (or any of your affiliates) initiates litigation against BitMover claiming that the Software or any portion thereof infringes a patent to which you (or any of your affiliates) have rights, and which patent was filed for on or after January 1, 1997, then all rights and licenses granted hereunder will termi- nate automatically as of the date such litigation is filed. 15. Compliance. BitMover, or its designee(s), shall, during regular business hours at Licensee's offices and in such a manner that does not interfere with Licensee's normal business activities, have the right to inspect and audit, or have an inspection and audit, of the number of copies of Software Used or distributed by Licensee, the computers on which the Software, if any, is installed and the number of users Using any such Software. If any audit discloses underpayments of five percent (5%) or more of the amount of License Fees Licensee should have actually paid to BitMover, Licensee shall bear all of the costs of the audit. BitMover's audit rights shall not terminate or expire until three (3) years after termination or expiration of this Agree- ment. 16. Miscellaneous. (a) Disputes, Choice of Law. Except for certain emergency judicial relief authorized under Section 10(e) (Injunctive Relief) which may be brought at any time, the parties agree that all disputes between them shall first be subject to the procedures in Section 14 (Termination) and then shall be submitted for informal resolution to their respective chief operating officers. Any remaining dispute involving less than one hundred thousand dollars ($100,000) shall be resolved by binding arbitration in San Francisco, Califor- nia. The arbitrator shall be chosen jointly by the par- ties. The proceedings shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbi- tration Association. The award of the arbitrator shall include a written explanation of the decision, shall be limited to remedies otherwise available in court and shall be binding upon the parties and enforceable in any court of competent jurisdiction. Disputes involving amounts exceed- ing the above dollar limit are not subject to arbitration and may be taken directly to court by either party. This Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE UNITED STATES AND CALIFORNIA, WITHOUT REGARD TO PRINCIPLES OF CON- FLICTS OF LAW, AND ANY ACTION SHALL BE INITIATED AND MAIN- TAINED IN THE COUNTY WHERE BITMOVER'S CORPORATE OFFICES ARE THEN LOCATED, CURRENTLY SAN FRANCISCO COUNTY, CALIFORNIA. This Section shall not restrict BitMover's right to bring an action against you in the jurisdiction where your place of business is located. (b) Independent Contractor Status. Each party and its employ- ees, agents and independent contractors are independent contractors in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties or between either party and the other party's employees, agents or independent contractors. Each party shall remain responsible, and shall indemnify and hold harmless the other party, for the withholding and payment of all Fed- eral, state and local personal income, wage, earnings, occupation, social security, worker's compensation, unem- ployment, sickness and disability insurance taxes, payroll levies or employee benefit requirements (under ERISA, state law or otherwise) now existing or hereafter enacted and attributable to themselves and their respective employees and agents. (c) Security, No Conflicts. Each party agrees to inform the other of any information made available to the other party that is classified or restricted data, agrees to comply with the security requirements imposed by any state or local government, or by the United States Government, and shall return all such material upon request. Each party represents and warrants that its participation in this Agreement does not create any conflict of interest prohib- ited by the U.S. Government or any other government and shall promptly notify the other party if any such conflict arises during the effectiveness of this Agreement or any license granted hereunder. (d) Public Reference. You consent to public use of your name (and/or your company name) as a customer of BitMover unless you notify BitMover in writing that You withhold such con- sent. (e) Compliance with Export Regulations. You have or shall obtain in a timely manner at your own expense all necessary or appropriate licenses, permits or other governmental authorizations or approvals. You shall indemnify and hold BitMover harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or require- ments pertaining to the importation, exportation, or Use of the technology to be developed or provided herein. You shall not directly or indirectly export or re-export (including by transmission) the Software to any country to which such activity is restricted by U.S. regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce. You represent and warrant that you are not a citizen of, under the control of, or otherwise located within an embargoed nation, and that you are not otherwise prohibited by applicable law from receiving the Software. (f) U.S. Government Restricted Rights. Software provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the commercial rights and restrictions described elsewhere herein. All Software provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 is provided with RESTRICTED RIGHTS as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or FAR, 48 CFR 252.227-7013 (OCT 1988), as applicable. You and your successors in interest agree that only the rights to the Software set forth in this Agreement are provided. Manufacturer: BitMover, Inc., 550 Valley Street, San Francisco, CA 94131. (g) English Language. If you are located outside the U.S.A., then the following provisions shall apply: (i) Les parties aux presentes, ont expressement exige que la presente Con- vention et ses Annexes soient redigees en langue anglaise (translation: "The parties hereto have expressly required that the present Agreement and its Schedules be drawn up in the English language."); and (ii) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Soft- ware, and you represent that you have complied iwth any regulations or registration procedures required by applica- ble law to make this license enforceable. English shall be deemed the language that controls the terms of this Agree- ment. (h) Entire Agreement & Miscellaneous. This Agreement and the attached or referenced Schedules constitute the entire Agreement between the parties with respect to the subject matter hereof and supersede all other communications, whether written or oral. This Agreement may be modified or amended by a writing signed by the party against whom enforcement is sought. An electronic version of this Agreement and all referenced Schedules is maintained by BitMover and is available on request at http://www.bit- keeper.com/. BitMover reserves all rights not specifically granted herein. Neither party shall be liable for delays caused by events beyond its reasonable control. The accep- tance of any purchase order placed by you is expressly made conditional on your assent to fully comply with all appli- cable laws and regulations and the terms and conditions set forth herein; any terms and conditions contained in your purchase order or other writing pertaining to this Agree- ment or the Software that are inconsistent with this Agree- ment are hereby rejected. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unen- forceable shall be automatically conformed to the minimum requirements of law, provided that the resulting provision remains consistent with the parties' original intent, and all other provisions shall remain in full force and effect. Waiver of any provision of this Agreement in one instance shall not preclude its enforcement on future occasions. No provision of this Agreement shall be construed to confer rights on any third party. Headings are for reference pur- poses only and have no substantive effect. CATEGORY Licensing BitMover, Inc 2003/08/30 bk bkcl(1)