a. Licensed Program means each computer program listed above and any updates thereto and the
Documentation, and all permitted reproductions of the same made by Licensee.
b. Documentation means the user manuals associated with the Licensed Programs (both as HTML and in printed form).
2. Rights and Restrictions Regarding Use and Copying
a. Grant of License. Mercury Interactive grants you ("Licensee") a personal, perpetual, non-transferable and non-exclusive license to use each of the Licensed Programs, solely for LicenseeÆs internal business purposes
at a secure site owned or leased by Licensee, upon the terms contained in this Agreement.
b. Prohibited Uses. Licensee may not: (i) modify, adapt, reverse engineer, or disassemble the Licensed Programs; (ii) create derivative works based on the Licensed Programs (including screen displays thereof); (iii) make copies of the Licensed Programs except for one (each) solely for backup or archival purpose; (iv) transfer the Licensed Programs or any part thereof to any third party or to a new location without Mercury
InteractiveÆs prior written consent; or (v) use any Licensed Program for a purpose other than that for which it is intended (as evidenced by the Documentation), including but not limited to use which significantly impairs the operation or performance of a Web site of a third party without such partyÆs consent.
3. Proprietary Rights
a. Licensee acknowledges that the Licensed Programs are not its properly, and that Licensee will use the Licensed Programs only under the terms and conditions described herein.
b. Licensee further acknowledges that the Licensed Programs are based on and contain proprietary information and trade secrets of Mercury Interactive, and are being made available to Licensee in confidence and on the basis of a confidential relationship with Mercury Interactive; Licensee agrees to treat the Licensed Programs with at least the same degree of care as it uses to protect its own confidential information.
c. The grant of this license herewith and the carrying out of the transactions contemplated hereby shall not be deemed publication of all or any portion of the Licensed Programs.
4. Terms and Termination
a. This Agreement shall be perpetual, unless terminated according to Section 4.b. Upon any termination, Licensee shall return to Mercury Interactive the originals and any and all copies of the Licensed Programs made or furnished herewith.
b. This Agreement, and the license granted in this agreement, may be terminated by Mercury Interactive after thirty (30) days written notice delivered to Licensee upon the occurrence of one or more of the following: (i) Failure of Licensee to perform any of its obligations under this Agreement; or (ii) Licensee attempting to assign this Agreement or any rights or obligations herewith without Mercury InteractiveÆs prior written consent.
5. Indemnity and Warranty
a. Intellectual Property Indemnity. Mercury Interactive will defend at its own expense any action against Licensee to the extent it is based on a claim of infringement of patents, trademarks or copyright by the Licensed Programs, and pay those damages and costs finally awarded against Licensee in such action and all prior related claims and gives Mercury Interactive (at its own expense) sole control of the defense of same and all negotiations for its settlement or compromise. Should any such Licensed Programs become, or in Mercury
InteractiveÆs opinion be likely to become, the subject of a claim of infringement, Licensee shall permit Mercury Interactive, at Mercury InteractiveÆs option and expense, to either (a) procure for Licensee the right to continue using the Licensed Programs, or (b) replace or modify the Licensed programs to become non-infringing; notwithstanding the foregoing, Mercury Interactive shall have no liability for any claim of infringement based upon LicenseeÆs modification to the Licensed Programs such claim could have been avoided by the absence of such modification. THE FORGOING STATES THE ENTIRE LIABILITY OF MERCURY INTERACTIVE WITH RESPECT TO INFRINGEMENT OF ANY PROPERTY RIGHT OF A THIRD PARTY BY THE SOFTWARE OR ANY PORTION THEREOF ALONE OR IN COMBINATION WITH ANY OTHER PRODUCT.
b. Limited Warranty.
Mercury Interactive warrants that the Licensed Programs will conform substantially in accordance with the descriptions set forth in the Documentation provided with the Licensed Programs. Licensee acknowledges, however, that the Licensed programs are of such complexity that they may have inherent or latent defects and agrees that as LicenseeÆs sole remedy, Mercury Interactive will provide programming services to correct documented program errors that Mercury InteractiveÆs analysis indicates are caused by a defect in the unaltered version of the delivered Licensed Programs. Mercury Interactive does not guarantee that the results
of any such services represent or warrant that any such error will be correct. Mercury Interactive does not warrant the Licensed Programs will meet the requirements of the Licensee or that the operation of the Licensed Programs will be uninterrupted and error free.
c. Repair or Replace Option.
In the event that Mercury InteractiveÆs programming services fail to bring the performance of the Licensed programs or a portion thereof into substantial conformity with the descriptions set forth in the Documentation within a reasonable time, then Mercury Interactive, at Mercury InteractiveÆs option, shall either replace such Licensed Programs with other software offering substantially similar functionality or refund any license fee that may have been invoiced and paid concerning such nonconforming Licensed Programs or portions thereof, upon the return of such Licensed Programs to Mercury Interactive.
d. Duration of Warranty.
The warranty described in this section 5 is made for a period of 90 days from the date the Licensed Programs are delivered to Licensee, and shall continue for so long as Licensee contracts for maintenance services from Mercury Interactive.
e. Limitation of Liability. EXCEPT FOR THE INDEMNIFICATION AND THE EXPRESS WARRANTY IN
THIS SECTION 5, MERCURY INTERACTIVE GRANTS NO WARRANTIES, EITHER EXPRESS
OR IMPLIED, WITH REGARD TO THE LICENSED PROGRAMS, INCLUDING ALL IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
MERCURY INTERACTIVE SHALL NOT BE LIABLE FOR SPECIAL, CONSEQUENTIAL,
INDIRECT OR OTHER SIMILAR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE
DELIVERY, USE OR PERFORMANCE OF THE LICENSED PROGRAMS EVEN IF MERCURY
INTERACTIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE
AGREES THAT MERCURY INTERACTIVEÆS LIABILITY HEREUNDER FOR DAMAGES SHALL
NOT EXCEED THE CHARGES PAID BY LICENSEE FOR THE PARTICULAR LICENSED
PROGRAMS INVOLVED.
6. General
a. This Agreement is subject to all present and future regulations and restrictions of the government and agencies of the United States. Licensee agrees that it will not ship or divert the Licensed Programs or technical data with respect thereto for use in any country or countries in contravention of the laws and regulations of such government or agencies or knowingly cause or permit such shipping or diversion without the prior written
approval of such government or agencies.
b. This Agreement shall be governed by the laws of the State of California and Licensee further consents to jurisdiction by the state and federal courts sitting in the State of California. If either Mercury Interactive or Recipient employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and other costs incurred in that action or
proceeding, including expert witness fees
c. All notices under this Agreement shall be deemed effective three days after posting by certified or registered mail, return receipt requested, to a party hereto.
d. If any provisions of this Agreement are declared to be invalid, the remaining provisions shall remain in full force and effect.
e. A waiver of a breach or default under this Agreement shall not be a waiver of any other breach or default. Failure of either party to enforce compliance with any term or condition of the Agreement shall not constitute a waiver of such term or condition unless accompanied by a clear written statement that such term or condition is waived.
f. This contract may not be assigned by Licensee without the prior written consent of Mercury Interactive.
g. Any deviations from or additions to the terms of this Agreement must be in writing and will not be valid
unless confirmed in writing by duly authorized officers of Mercury Interactive and the Licensee.
Copyright 1997 by Mercury Interactive Corporation, PATENTS PENDING.
