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bitkeeper-3.0-x86-glibc2.2-linux-bkcl-licence
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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 LICENSE AGREEMENT
BITMOVER, INC ("BitMover") IS WILLING TO LICENSE THE SOFTWARE
ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CON-
TAINED IN THIS LICENSE AGREEMENT. PLEASE READ THE TERMS CARE-
FULLY. BY CLICKING ON "ACCEPT" AND/OR INSTALLING THE SOFTWARE,
YOU WILL INDICATE YOUR AGREEMENT WITH THEM. IF YOU DO NOT AGREE
WITH THESE TERMS, THEN BITMOVER IS UNWILLING TO LICENSE THE
SOFTWARE TO YOU, IN WHICH EVENT YOU SHOULD NOT PROCEED WITH
INSTALLING OR USING THE SOFTWARE.
1. Software.
The parties are entering into this Agreement to establish an
arrangement whereby Licensee may temporarily evaluate and, at
its option, obtain an Operating License for certain application
software programs, as described more fully in the attached Prod-
uct Schedule 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 Licensee.
(a) Evaluation License. The Licensee is granted an evaluation
license authorizing it 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 execution of this Agreement
(the "Evaluation Period"). In the event the Licensee con-
tinues use of the Software after completion of the Evalua-
tion Period, the Licensee shall be deemed to have accepted
an Operating License to Use the Software under Subsection
(b) ("Operating License") in accordance with the other
terms and conditions of this Agreement; otherwise, this
Agreement shall be deemed terminated and Licensee shall
destroy all copies of the Software in its possession or
control.
(b) Operating License. Licensee is granted a world-wide nonex-
clusive license to install, store and load the Software on
appropriately configured equipment and to allow its autho-
rized users for whom the applicable fees have been paid or
will be paid upon receipt of invoice to use, execute, and
display ("Use") the Software for its ordinary and customary
business purposes on behalf of itself and its affiliates.
(c) Transfer of License. Except as specifically authorized in
another provision of this Agreement and/or the attached Fee
Schedule, neither this Agreement, nor any rights or obliga-
tions hereunder, may be transferred, assigned, delegated,
sub-licensed, relocated 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.
Perpetual and/or Leased Licenses shall be indicated in the
attached Licenses Schedule. 3(a) ("Leased Licenses") and/or
3(b) ("Perpetual Licenses") shall apply only if corresponding
Licenses are indicated in the attached Licenses Schedule.
(a) Leased Licenses: This Agreement shall commence on the 1st
of the month closest to the date of acceptance of this
agreement, such acceptance indicated by clicking "ACCEPT"
below, and shall continue in full force and effect for a
period of three (3) months, six (6) months, or one (1) year
("Initial Term") as indicated in the Licenses Schedule,
unless terminated earlier in accordance with Section 14
("Termination"). The Term shall automatically be renewed
for successive like periods (each, a "Renewal Term") unless
Licensee notifies BitMover at least thirty (30) days prior
to the expiration of the Initial Term (or Renewal Term, as
the case may be) that the Agreement shall not be renewed.
The Initial Term and any Renewal Term are collectively
referred to herein as the "Term". Upon renewal, Licensee
shall pay any applicable License Fee with respect to such
Software. Renewal of the Term shall not operate to renew
any warranty obligations under Section 11 ("Warranties and
Indemnification"). Renewal procedures are described in the
Fee Schedule, and unless such procedures are strictly sat-
isfied, including payment of any required license and/or
support fees, Licensee's use of the Software for any pur-
pose after the expiration of the term is not authorized.
Upon expiration of the Term the Software may automatically
disable itself.
(b) Perpetual Licenses: This Agreement shall commence on the
1st of the month closest to the date of acceptance of this
agreement, such acceptance indicated by clicking "ACCEPT"
below, and shall continue in full force and effect in per-
petuity, unless terminated earlier in accordance with Sec-
tion 14 ("Termination"). The annual support option shall
automatically be renewed for successive like periods unless
Licensee notifies BitMover at least thirty (30) days prior
to the expiration of the annual support option that the
annual support option shall not be renewed. Upon renewal,
Licensee shall pay any applicable Support Fee. Renewal of
the annual support option shall not operate to renew any
warranty obligations under Section 11 ("Warranties and
Indemnification"). Renewal procedures are described in the
Fee Schedule, and unless such procedures are strictly sat-
isfied, including payment of any required license and/or
support fees, Licensee's use of the Software for any pur-
pose after the expiration of the term is not authorized.
4. Restrictions.
You may not: (i) modify or translate the Software; (ii) reverse
engineer, decompile, or disassemble the Software, except to the
extent this restriction is expressly prohibited by applicable
law; (iii) rent, lease, loan, resell or create derivative works
based on the Software (iv) merge the Software with another prod-
uct; (v) separate the Software into its component parts; (vi)
copy the Software, except as expressly provided herein, and as
reasonably necessary for back up and recovery purposes; or (vii)
remove or obscure any proprietary rights notices, labels, copy-
rights, trademarks, and/or servicemarks on the Software.
5. Program Code & Documentation.
(a) Program Code. The Software shall be provided to Licensee
and Used strictly in machine-readable object code format.
No source code or technical-level documentation are
licensed under this Agreement.
(b) Program Documentation. The Licensee shall be provided with
online documentation, included with the Software, describ-
ing in reasonable detail understandable by a user of gen-
eral proficiency the use and operation of the Software. The
Documentation shall be supplied in magnetic form and may be
reproduced by Licensee for purposes authorized herein.
6. Acceptance.
The Software shall be deemed accepted by Licensee unless
Licensee notifies BitMover in writing of a material defect in
the Software within ten (10) business days after delivery and
commencement of the Operating License.
7. Support Services.
If Lease is indicated in the attached Licenses Schedule, for a
period of five (5) years after expiration of any warranty under
Section 11 ("Warranties and Indemnification"), the Licensee
shall have the option (exercised by payment of the Annual Lease
Fee set forth in the then current Fee Schedule) to receive the
Software support services set forth below.
If Perpetual is indicated in the attached Licenses Schedule, for
a period of five (5) years after expiration of any warranty
under Section 11 ("Warranties and Indemnification"), the
Licensee shall have the option (exercised by payment of the
Annual Support Fee set forth in the then current Fee Schedule)
to receive the Software support services set forth below.
(a) Hotline Service. Assistance for error correction and
advice on the use and operation of the all maintained ver-
sions of the Software, Monday through Friday, from 9:00
a.m. to 5:00 p.m., BitMover'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 communicated by telephone or telecopier
machine and shall provide sufficient information to enable
BitMover to replicate and diagnose the reported problem.
BitMover shall be provided reasonable access to the Soft-
ware via remote dial-in contact, subject to Licensee's nor-
mal security requirements. Unless otherwise agreed, out-of-
scope work or maintenance work outside regular business
hours shall be subject to a surcharge equal to BitMover's
current labor rate.
(b) Updates. Copies of each revision or "Update" to the Soft-
ware and associated Documentation which BitMover generally
distributes. BitMover's designation of an item as a new
version or an enhancement rather than an Update shall be
conclusive unless clearly erroneous. BitMover shall pro-
vide maintenance for all versions of the Software released
within six months of the most recent version of the Soft-
ware.
(c) Certain Conditions. BitMover shall not be obligated to
provide maintenance service if: (i) the reported error was
caused by unauthorized changes 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 or specifications; (iii) the error is in
a prior release that was corrected through issuance of an
Update that Licensee has failed to install, (iv) the Soft-
ware does not pass the included regression tests when run
on the Licensee's system, or (v) the Licensee has failed to
pay any required Annual Support Fee or is otherwise 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 a Training Fee (or other
pricing arrangement) reasonably acceptable to each party.
8. Prices & Payment.
The prices and fees for Software or other technology provided
hereunder, any Support Services and other deliverables are set
forth on the Fee Schedule. License Fees shall be invoiced as
specified in the Fee Schedule. Invoiced amounts shall be paid
within thirty (30) days from receipt of invoice. Licensee 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 collection (including reasonable
legal fees) and shall bear interest at the rate of one and one-
half (1.5) percent per month or fraction thereof until paid.
Prices quoted do not include and Licensee shall pay, indemnify
and hold BitMover harmless from all sales/use, gross receipts,
value-added, GST other tax (including interest and penalties
imposed thereon) on the transaction contemplated herein.
9. Ownership.
Bitmover and its suppliers own the Documentation, the Software
and all intellectual property rights embodied therein, including
copyrights and valuable trade secrets embodied in the Software's
design and coding methodology. The Software is protected by
United States copyright laws and international treaty provi-
sions. This Agreement provides Licensee only a limited use
license, and no ownership of any intellectual property.
10. Confidentiality.
(a) Acknowledgment. Licensee hereby acknowledges and agrees
that the Software and Documentation constitute and contain
valuable proprietary products and trade secrets of BitMover
and/or its suppliers, embodying substantial creative
efforts and confidential information, ideas, and expres-
sions. BitMover hereby acknowledges and agrees that
Licensee may provide BitMover with confidential information
during the course of normal use and support of the Soft-
ware. Accordingly, each party agrees to treat confidential
information in accordance with the confidentiality require-
ments and conditions set forth below.
(b) Exclusions. Confidential Information does not include: (i)
information already known or independently developed by
either party outside the scope of this relationship by per-
sonnel not having access to any Confidential Information;
(ii) information in the public domain through no wrongful
act of either party;, or (iii) information received by
either party from a third party who was free to disclose
it.
(c) Maintenance of Confidential Information. Each party hereby
agrees during the Term and at all times thereafter to keep
confidential all confidential information disclosed to it
by the other party in accordance herewith. Each party
shall use at least the same degree of care in safeguarding
the Confidential Information as they use in safeguarding
their own confidential information, but in no event shall
less than due diligence and care be exercised. Upon termi-
nation, each party shall destroy all Confidential Informa-
tion in their possession or control and cease all further
use thereof. Neither the Licensee nor any recipient shall:
(i) alter or remove from any Software or associated Docu-
mentation any proprietary, copyright, trademark or trade
secret legend, or (ii) attempt to decompile, disassemble or
reverse engineer the Software (and any information derived
in violation of such covenant shall automatically be deemed
Confidential Information owned exclusively by BitMover and
its suppliers).
(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) assert the privileged and con-
fidential nature of the Confidential Information and (a)
cooperate fully with the disclosing party in protecting
against any such disclosure and/or obtaining a protective
order narrowing the scope of such disclosure and/or use of
the Confidential Information. In the event such protection
is not obtained, the receiving party shall 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
("Confidentiality") would cause irreparable harm not ade-
quately compensable by monetary damages. In addition to
other relief, it is agreed that injunctive relief shall be
available without necessity of posting bond to prevent or
remedy any such breach.
11. Warranties and Indemnification.
(a) General Warranties. BitMover represents and warrants that
it has the legal right to grant the Licensee the license as
set out in this Agreement.
(b) Non-infringement Warranty. BitMover represents and war-
rants that the Software, when properly used as contemplated
herein, will not infringe or misappropriate any United
States copyright, trademark, patent, or trade secrets of
any third persons and that there are no such claims of
infringement or misappropriation as of the date hereof.
(c) Indemnification. Notwithstanding any other provision of
this Agreement, BitMover shall defend, indemnify and hold
harmless Licensee and its officers, directors, sharehold-
ers, employees, accountants, attorneys, agents, affiliates,
subsidiaries, successors and assigns against any claim or
threat of claim that the Software infringes on any intel-
lectual property right of any third party. BitMover shall
pay court costs, legal fees and litigation expenses as they
are incurred, and any damages finally awarded or settlement
agreed upon, resulting from any such claim or threat of
claim, provided that Licensee (i) promptly gives BitMover
written notice of any such claim, (ii) gives BitMover the
full authority to defend any such claim, and (iii) provides
BitMover with all information and assistance BitMover
requests in connection with such defense. Upon being noti-
fied of such a claim, BitMover shall (i) defend through
litigation or obtain through negotiation the right of
Licensee 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 functionally equivalent software. If none of the
foregoing alternatives provide an adequate remedy, Licensee
may terminate all or any part of this Agreement and recover
amounts paid for the infringing Software within the Term.
(d) 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) Licensee notifies
BitMover of any such defect within ten (10) calendar days
after the appearance thereof; (iii) Licensee has properly
installed all updates made available with respect to the
Software, and updates recommended by BitMover with respect
to any third party software products (including operating
system software) that materially affect the performance of
the Software; (iv) Licensee has properly maintained all
associated equipment, software and environmental conditions
in accordance with applicable specifications and industry
standards; (v) Licensee has not introduced other equipment
or software creating an adverse impact on the Software;
(vi) Licensee has paid all amounts due hereunder and is not
in default of any provision of this Agreement; (vii) any
Functional Design or Specification provided by Licensee is
an accurate and complete rendering of the relevant fea-
tures, applicable interfaces and associated operating envi-
ronment, and (viii) Licensee has made no changes (nor per-
mitted any changes to be made other than by or with the
express approval of BitMover) to the Software source code.
(e) No Undocumented Features. BitMover represents and warrants
that it will scan the Software with commercially available
anti-virus software and shall use due diligence to remove
viruses capable of being detected with such software. All
corrections shall be as fully warranted as the original
work through expiration of the original Warranty Period.
(f) Warranty Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN
THIS SECTION ("WARRANTIES AND INDEMNIFICATION") BITMOVER
HEREBY DISCLAIMS WITH RESPECT TO ALL LICENSED PRODUCTS,
SUPPORT SERVICES OR OTHER DELIVERABLES PROVIDED HEREUNDER,
ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY, INTEGRATION
OR FITNESS FOR A PARTICULAR PURPOSE. ANY UNAUTHORIZED
CHANGES TO SOURCE CODE TO A LICENSED PRODUCT WILL VOID THE
WARRANTY PROVIDED UNDER THIS SECTION.
12. Limitation of Remedies & Liabilities.
The parties acknowledge that the following provisions have been
negotiated by them and reflect a fair allocation of risk:
(a) Remedies. Except for certain injunctive relief authorized
under Section 10 ("Confidentiality"), Licensee's sole and
exclusive remedies for BitMover's default hereunder shall
be (i) to obtain the repair, replacement or correction of
the defective Software or services to the extent warranted
under Section 11 ("Warranties and Indemnification") or, if
BitMover reasonably determines that such remedy is not eco-
nomically or technically feasible, (ii) to obtain an equi-
table partial or full refund of amounts paid with respect
to the defective Software or services.
(b) Liabilities. BITMOVER SHALL NOT BE LIABLE FOR ANY AMOUNT
EXCEEDING THE TOTAL PORTION OF THE CONTRACT PRICE ACTUALLY
PAID BY LICENSEE WITHIN THE THEN CURRENT TERM. IN NO EVENT
SHALL EITHER PARTY BE LIABLE, WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SAV-
INGS, LOST PROFIT OR BUSINESS INTERRUPTION EVEN IF NOTIFIED
IN ADVANCE OF SUCH POSSIBILITY) ARISING OUT OF OR PERTAIN-
ING TO THE SUBJECT MATTER OF THIS AGREEMENT.
13. Notices.
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. 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 docu-
ment's authenticity is genuinely placed in question.
14. Termination.
Either party may, in addition to other relief, terminate this
Agreement if the other party breaches any material provision
hereof and fails within ten (10) days after receipt of notice of
default to correct such default or to commence corrective action
reasonably acceptable to the aggrieved party and proceed with
due diligence to completion. Either party shall be in default
hereof if it becomes insolvent, makes an assignment for the ben-
efit of its creditors, a receiver is appointed or a petition in
Bankruptcy is filed with respect to the party and is not dis-
missed within thirty (30) days. Termination shall have no effect
on the parties' rights or obligations to safeguard and respect
Confidential Information under Section 10 ("Confidentiality"),
Section 11 ("Warranties and Indemnification"), Section 12 ("Lim-
itation of Remedies & Liabilities") or Section 18 ("Compliance
with Export Regulations"). Immediately or termination of this
License for any reason, Licensee shall destroy all copies of the
Software.
In the event that Licensee institutes patent and/or intellectual
property litigation against BitMover with respect to the Soft-
ware, then this Agreement and the rights granted hereunder will
terminate automatically as of the date such litigation is filed.
15. 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. The proceedings shall
be conducted in accordance with the Commercial Arbitration Rules
of the American Arbitration Association. The award of the arbi-
trator 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 exceeding
the above dollar limit are not subject to arbitration and may be
taken directly to court by either party. 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 CONFLICTS OF LAW, AND ANY ACTION SHALL BE INITI-
ATED AND MAINTAINED IN A FORUM OF COMPETENT JURISDICTION IN SUCH
DESIGNATED STATE.
16. Independent Contractor Status.
Each party and its employees and agents are independent contrac-
tors 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 employ-
ment relationship between the parties. Each party shall remain
responsible, and shall indemnify and hold harmless the other
party, for the withholding and payment of all Federal, state and
local personal income, wage, earnings, occupation, social secu-
rity, worker's compensation, unemployment, sickness and disabil-
ity insurance taxes, payroll levies or employee benefit require-
ments (under ERISA, state law or otherwise) now existing or
hereafter enacted and attributable to themselves and their
respective employees and agents.
17. 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 Govern-
ment, and shall return all such material upon request. Each
party represents and warrants that its participation in this
Agreement does not conflict with any contractual or other obli-
gation of the party or 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 dur-
ing the Term.
18. Compliance with Export Regulations.
Licensee has or shall obtain in a timely manner all necessary or
appropriate licenses, permits or other governmental authoriza-
tions or approvals; shall indemnify and hold BitMover harmless
from, and bear all expense of, complying with all foreign or
domestic laws, regulations or requirements pertaining to the
importation, exportation, or use of the technology to be devel-
oped or provided herein. Licensee shall not directly or indi-
rectly export or re-export (including by transmission) the Soft-
ware 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. This provision and the assurances made
herein shall survive termination of this Agreement.
19. U.S. Government Restricted Rights.
Software provided to the U.S. Government pursuant to solicita-
tions 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 solici-
tations 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.
20. Miscellaneous.
This document and the accompanying attachments specifically ref-
erenced herein constitute the entire agreement between the par-
ties with respect to the subject matter hereof and supersede all
other communications, whether written or oral. This Agreement
may be modified or amended only by a writing signed by the party
against whom enforcement is sought. Except as specifically per-
mitted herein, neither this Agreement nor any rights or obliga-
tions hereunder may be transferred or assigned by Licensee with-
out BitMover's prior written consent and any attempt to the con-
trary shall be void. BitMover reserves all rights not specifi-
cally granted herein. Neither party shall be liable for delays
caused by events beyond its reasonable control. Any provision
hereof found by a tribunal of competent jurisdiction to be ille-
gal or unenforceable shall be automatically conformed to the
minimum requirements of law and all other provisions shall
remain in full force and effect. Waiver of any provision hereof
in one instance shall not preclude enforcement thereof on future
occasions. Headings are for reference purposes only and have no
substantive effect.
CATEGORY
Licensing
BitMover, Inc 2002/09/22 1
