CORPORATE SOFTWARE SITE LICENSE AGREEMENT
IMPORTANT -- READ CAREFULLY: This Corporate Software Site License Agreement
("Agreement") is made effective as of _______________, between Servertec, of
18 Oakwood Avenue, Kearny, New Jersey 07032, and
_________________________________________________________________.
This is a legal agreement between you, the Corporation ("Licensee"), either
an institution or an entity, and Servertec ("Servertec") for the software
product identified below. This license ("License") contains rights and
restrictions associated with use of the accompanying software ("Software")
including, but not limited to, one or more of the following: source code,
object code, dynamic link libraries, static libraries, classes, byte code,
header files, utility programs, makefiles, images and scripts together with
the accompanying documentation and examples. Read the License carefully
before opening the sealed Software package, downloading, installing or using
the Software. By opening the sealed Software package, downloading, installing
or using the Software you agree to be bound by the terms and conditions of
this License. If you do not agree to the terms of this Agreement, do not open
the sealed Software package, do not download, install, copy or use the
Software, return the unopened Software package(s) and all other materials
with proof of payment to your place of purchase within thirty (30) days for a
full refund.
iServer 1.9.0 08/13/2000 Release
The Software is protected by copyright laws and international copyright
treaties, as well as other intellectual property laws and treaties. The
Software is licensed, not sold.
1. Limited License Grant. Subject to payment of applicable license fees,
Servertec grants to you ("Licensee") a non-exclusive, non-transferable
limited license:
(a) For an unlimited number of Employees ("Employee") to use the Software on
Licensee's computer(s); to use the Software on Licensee's network(s); or to
copy the Software for internal development purposes and for archival
purposes, provided any copy must contain all of the original Software's
proprietary notices;
(b) To Build Applets. Provided that Applets you build are used only as an
internal component in end-user oriented user-interfaces, you may copy them to
additional computers (e.g. Web Servers), from which you may allow end-users
to download, royalty-free, the Applets in the course of browsing or
interacting with Web pages you create. You are not permitted to distribute
the Applets in any fashion which would promote, encourage or allow reuse or
redistribution of the Applet, other than as permitted above;
(c) To Build Servlets and Stand-Alone Applications. You have a royalty-free
right to reproduce and distribute the Java Class(es) as an integral part of
your application(s), subject to the restrictions below; and
(d) THAT THE ONLY FILES THAT MAY BE DISTRIBUTED WITH YOUR APPLET(S) AND/OR
APPLICATION(S) ARE: INSERT FILE LIST HERE.
Except for the foregoing, Licensee may not re-distribute the Software in
whole or in part, either separately or included with a product.
2. Limited Use Rights. Your rights to use the Software described in Section 1
above are granted provided that:
(a) the Servertec Software is for internal use only, is not to be distributed
externally and can not be sold, leased or resold;
(b) any copy(ies) of the Servertec Software that you make are for internal
use only, are not to be distributed externally and can not be sold, leased or
resold;
(c) you do not use Servertec's name, logo or trademark to market your Web
pages or application;
(d) you must not remove or alter any proprietary notices, copyright, labels,
trademarks on the software or documentation;
(e) you include a valid copyright notice on your Web pages and software
products; and
(f) you agree to indemnify, hold harmless, and defend Servertec and its
suppliers from and against any claims or lawsuits, including attorney's fees
that arise or result from the use or distribution of your Web pages and/or
applications.
3. Use Definition. The Software is "in use" on a computer when it is loaded
into temporary memory (i.e. RAM) or installed into permanent memory (e.g.
hard disk, CD-ROM, or other storage device) of that computer, except that a
copy installed on a network server for the sole purpose of distribution to
other computers is not "in use".
4. Source Code. If you have purchased the "Source Code" version of this
product, you must use reasonable efforts to maintain the confidentiality of
the source code, including ensuring that it is installed and used only on the
single machine for which it is licensed, and that it is not otherwise used or
copied. The source codes of the Software are valuable assets of Servertec.
You agree to keep all source codes of the Software in confidence. You may not
transfer or assign the Software or your rights under this agreement.
5. Restrictions. The Software is confidential copyrighted information of
Servertec and title, ownership rights, and intellectual property rights in
the Software and to all copies is retained by Servertec. The Software is
protected by copyright laws and treaties. Title and related rights in the
content accessed through the Software is the property of the applicable
content owner and may be protected by applicable law. This License gives you
no rights to such content. You may not: permit other individuals to use the
Software or permit concurrent use of the Software except under the terms
listed above. You may not modify, translate, reverse engineer, decompile,
decrypt, extract, disassemble, or create derivative works based on the
Software; copy the Software other than as specified in Sections 1 and 2 of
this License; sell, rent, lease, grant a security interest in, or otherwise
transfer rights to the Software; or alter or remove any proprietary notices
or labels on the Software. Software may not be leased, assigned, or
sublicensed, in whole or in part, except as specifically authorized in
Sections 1 and 2. Licensee warrants that it will not use or redistribute the
Software for such purposes. Therefore you must treat the Software like any
other copyrighted material and not reproduce it except as explicitly
permitted by this License.
6. High Risk Activities. The Software is not fault-tolerant and is not
designed, manufactured or intended for use in on-line control equipment in
hazardous environments requiring fail-safe performance, such as in the
design, construction, operation or maintenance of any aircraft, air traffic,
aircraft navigation, aircraft communications, nuclear facilities, direct or
indirect life support machines, or weapons systems. Servertec and its
suppliers specifically disclaim any express or implied warranty of fitness
for High Risk Activities. Licensee warrants that it will not use or
redistribute the Software for such purposes.
7. Trademarks and Logos. This License does not authorize Licensee to use any
Servertec name, trademark, or logo. Licensee acknowledges that Servertec owns
the iServer trademark and all iServer-related trademarks,
logos and icons and agrees to: (i) to comply with the attached
iServer Trademark Guidelines at
Trademarks;
(ii) not do anything harmful to or inconsistent with Servertec's rights in
the iServer Marks; and (iii) assist Servertec in protecting those
rights, including assigning to Servertec any rights acquired by Licensee in
any iServer Mark.
8. Taxes. All charges and fees paid are exclusive of and do not include any
taxes, duties, or similar charges imposed by any government. Licensee agrees
to pay or reimburse Servertec for all federal, state, dominion, provincial,
or local sales, use, personal property, excise, VAT or other taxes, fees, or
duties arising out of this Agreement or the transactions contemplated by the
Agreement (other than taxes on the net income of Servertec).
Licensee agrees that the amounts to be remitted to Servertec are to be the
actual amounts due without withholding taxes or other assessments by
authorities anywhere in the foreign location. If any withholding tax is
imposed under the laws of a country or other taxing jurisdiction outside of
the United States on any amounts paid to Servertec, such amounts will be
increased by the amount of the withholding tax. Licensee shall be solely
responsible for and shall pay any and all amounts required in the foreign
location to be withheld, charged, deducted, or assessed against such payment
amounts, and will promptly furnish Servertec with certificates evidencing
payment of such amounts.
9. Annual Software Maintenance and Support. Licensee may purchase an annual
(12 month) Maintenance and Support Subscription from Servertec during the
term of this Agreement. Maintenance and Support means that Servertec will
provide:
(a) updates (modifications, additions, error corrections or substitutions
made to the Software and NOT new releases that substantially increase
functionality), if any, and appropriate documentation to products purchased
by Licensee;
(b) technical assistance with respect to the Software. Technical assistance
includes: clarification of Software functions and features; clarification of
documentation pertaining to the Software; technical support and guidance in
the operation of the Software; and
(c) Software error analysis and correction. Servertec will use commercially
reasonable efforts to provide error corrections or work-arounds for the most
severe errors as soon as possible and based upon Servertec's classification
of the severity of the error.
Maintenance and Support is available on the Web at:
http://www.servertec.com/support
and provided through e-mail at:
support@servertec.com.
The cost of the Annual Maintenance and Support Subscription ("Fee") for each
twelve (12) month period of Maintenance and Support is set forth in the
Servertec's price list in effect as of the date of invoice. The Fee is due
and payable within thirty (30) days after the date of Servertec's invoice.
The Fee is due every 12 months. Servertec may modify the Fee on an annual
basis. Servertec has the right to withhold services under this Agreement in
the event, any payment due from Licensee is delinquent.
Maintenance and Support will be provided only with respect to versions of the
Software that, in accordance with Servertec's policy, are then being
supported by Servertec.
Expanded support or technical assistance is available per request at an
additional charge in accordance with the Servertec's then-current policy.
Services performed for Licensee outside the scope of this Agreement shall be
charged to Licensee at Servertec's then current hourly rates.
10. Cooperation and Operation. Licensee shall cooperate to the fullest extent
necessary to enable Servertec or authorized Service Provider to replicate any
problems, determine that the problem resides with the Software, and certify
that the problem has been corrected. Licensee is responsible for selecting an
operator who is qualified to operate the Software on Licensee's own equipment
and is familiar with the information, calculations, and reports that serve as
input and output of the Software. Servertec or authorized Service Provider
reserves the right to refuse assistance or to charge additional fees if an
operator seeks assistance with respect to such background information or any
other matters not directly relating to the operation of the Software.
Licensee is also responsible for ensuring a proper environment and proper
utilities for the computer system on which the Software will operate.
11. Limited Warranty. Servertec warrants that (a) the Software will perform
substantially in accordance with the accompanying written materials for a
period of ninety (90) days from the date of receipt, and (b) any Support
Services provided by Servertec shall be substantially as described in
applicable written materials provided to you by Servertec, and Servertec
support engineers will make commercially reasonable efforts to solve any
problem issues. Some states and jurisdictions do not allow limitations on
duration of an implied warranty, so the above limitation may not apply to
you. To the extent allowed by applicable law, implied warranties on the
Software, if any, are limited to ninety (90) days.
EXCEPT AS PROVIDED ABOVE, THIS SOFTWARE AND ANY RELATED SERVICES OR
DOCUMENTATION IS PROVIDED ON AN "AS IS" BASIS, WITHOUT A WARRANTY OF ANY
KIND. ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING
WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE HEREBY EXCLUDED. THE ENTIRE RISK
AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS BORNE BY YOU. SHOULD THE
SOFTWARE PROVE DEFECTIVE, YOU AND NOT SERVERTEC ASSUME THE ENTIRE COST OF ANY
SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART
OF THE AGREEMENT. IN SOME JURISDICTIONS THIS MAY NOT APPLY TO YOU AND YOU MAY
HAVE OTHER LEGAL RIGHTS THAT ARE BY JURISDICTION.
12. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, IN NO EVENT SHALL SERVERTEC OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES
WHATSOEVER SUFFERED BY LICENSEE OR ANY THIRD PARTY AS A RESULT OF USING OR
DISTRIBUTING SOFTWARE. IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL SERVERTEC
OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR
DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES OR
LOSS OF GOODWILL, WORK STOPPAGE OR INTERRUPTION, COMPUTER FAILURE OR
MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, HOWEVER CAUSED AND
REGARDLESS OF THE THEORY OF LIABILITY, TORT, CONTRACT, OR OTHERWISE, ARISING
OUT OF THE USE OF, MISUSE OF OR INABILITY TO USE SOFTWARE, EVEN IF SERVERTEC
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN SOME JURISDICTIONS
THIS MAY NOT APPLY TO YOU AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT ARE BY
JURISDICTION.
In no event will Servertec's liability to Licensee, whether in contract, tort
(including negligence), or otherwise exceed the total price paid for the
software or the Annual Subscription Fee paid to Servertec by Licensee for the
twelve (12) months preceding the event giving rise to the claim. No action,
whether in contract or tort including but not limited to negligence, arising
out of or in connection with this Agreement may be brought by either party
more than eighteen (18) months after the cause of action has accrued.
13. Customer Remedies. Servertec's and its suppliers' entire liability and
your exclusive remedy shall be, at Servertec's option, either (a) return of
the price paid or the Annual Subscription Fee paid, if any, or (b) repair or
replacement of the Software that does not meet Servertec's Limited Warranty.
All Software returns and replacements must include a copy of the original
receipt This Limited Warranty is void if failure of the Software has resulted
from accident, abuse, or misapplication. Any replacement Software will be
warranted for the remainder of the original warranty period or thirty (30)
days, whichever is longer.
14. Termination. Licensee may terminate this License at any time by
destroying all copies of Software. This License will terminate immediately
without notice from Servertec if Licensee fails to comply with any provision
of this License. Upon such termination, Licensee must destroy all copies of
Software.
15. Export Regulations. 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. Licensee agrees to comply strictly with all
such regulations and acknowledges that it has the responsibility to obtain
licenses to export, re-export, or import Software. Software may not be
downloaded, or otherwise exported or re-exported (i) into, or to a national
or resident of, Cuba, Iraq, Iran, North Korea, Libya, Sudan, Syria or any
country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S.
Treasury Department's list of Specially Designated Nations or the U.S.
Commerce Department's Table of Denial Orders.
16. Restricted Rights. Use, duplication or disclosure by the United States
government is subject to the restrictions as set forth in the Rights in
Technical Data and Computer Software Clauses in DFARS 252.227-7013(c) (1)
(ii) and FAR 52.227-19(c) (2) as applicable.
17. Governing Law. Any action related to this License will be governed by New
Jersey law and controlling U.S. federal law. No choice of law rules of any
jurisdiction will apply.
18. Severability. IF ANY OF THE ABOVE PROVISIONS ARE HELD TO BE IN VIOLATION
OF APPLICABLE LAW, VOID, OR UNENFORCEABLE IN ANY JURISDICTION, THEN SUCH
PROVISIONS ARE HEREWITH WAIVED OR AMENDED TO THE EXTENT NECESSARY FOR THE
LICENSE TO BE OTHERWISE ENFORCEABLE IN SUCH JURISDICTION. HOWEVER, IF IN
SERVERTEC'S OPINION DELETION OR AMENDMENT OF ANY PROVISIONS OF THE LICENSE BY
OPERATION OF THIS PARAGRAPH UNREASONABLY COMPROMISES THE RIGHTS OR INCREASE
THE LIABILITIES OF SERVERTEC, SERVERTEC AUTOMATICALLY TERMINATES THE LICENSE
WITHOUT ANY REMEDY TO THE LICENSEE. UPON SUCH TERMINATION, LICENSEE MUST
DESTROY ALL COPIES OF THE SOFTWARE.
19. Breach of Agreement. It is understood and agreed that, notwithstanding
any other provision of this Agreement, Licensee's breach of any of the
provisions of this Agreement will cause Servertec irreparable damage for
which recovery of money damages would be inadequate, and that Servertec will
therefore be entitled to seek timely injunctive relief to protect Servertec's
rights under this Agreement in addition to any and all remedies available at
law.
20. Miscellaneous. This Agreement is the parties' entire agreement relating
to its subject matter. It supersedes all prior or contemporaneous oral or
written communications, proposals, conditions, representations and warranties
and prevails over any conflicting or additional terms of any quote, order,
acknowledgment, or other communication between the parties relating to its
subject matter during the term of this Agreement. No modification to this
Agreement will be binding, unless in writing and signed by an authorized
representative of each party.
21. Should you have any questions concerning this Agreement, or if you desire
to contact Servertec for any reason, please write: Servertec, 18 Oakwood
Avenue, Kearny, NJ, 07032 or e-mail:
info@servertec.com.
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