IMPORTANT: THIS SOFTWARE END USER LICENSE AGREEMENT
("EULA") IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR,
IF PURCHASED OR OTHERWISE ACQUIRES BY OR FOR AN ENTITY, AN ENTITY) AND CENTERACTIVE.
READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THIS
SOFTWARE. IT PROVIDES A LICENSE TO USE THIS SOFTWARE AND CONTAINS WARRANTY
INFORMATION AND LIABILITY DISCLAIMERS. BY DOWNLOADING OR INSTALLING THE
SOFTWARE YOU ARE INDICATING YOUR ASSENT TO THE TERMS OF THIS LICENSE. IF YOU DO
NOT AGREE TO ALL OF THE FOLLOWING TERMS, DO NOT DOWNLOAD OR INSTALL THE
SOFTWARE OR DISCONTINUE USE IMMEDIATELY AND DESTROY ALL COPIES.
1. DEFINITION
a) "Centeractive" means Centeractive AG,
Switzerland.
b) "Software" means the executable code of RV
Tool Collection (software tools for interacting with the messaging middleware
TIBCO Rendezvous TM) and corresponding documentation, printed materials, online
or electronic documentation.
c) "Named User" is an individual authorized by You
to use the Software through the assignment of a single user ID, regardless of
whether or not the individual is using the Software at any given time. A
non-human operated device is counted as a Named User in addition to all
individuals authorized to use the Software, if such device can access the
Software.
2. LICENSE GRANTS
2.1 Evaluation License. You may download and use the
Software for free for thirty (30) days ("Evaluation Period") after
installation and registration. During the Evaluation Period, Centeractive
grants You a limited, non-exclusive, non-transferable, non-renewable license to
copy and use the Software for evaluation purposes only and not for any
commercial use. At Centeractive discretion, Centeractive may provide limited
support through email or discussion forums at Centeractive web site. The
evaluation copy of the Software contains a feature that will automatically
disable the Software at the end of Evaluation Period. Centeractive will have no
liability to you if this feature disables the Software.
2.2 License After Evaluation Period.
This Software is licensed, not sold. During Evaluation Period or at its
termination, You have the option of paying a license
fee in order to use the Software after expiration of the Evaluation Period.
Upon your payment of the license fee, Centeractive provides you with a client
name and a number of UUIDs required for the permanent registration ("Permanent
Registration Key") and grants you a limited, non-exclusive,
non-transferable license to:
a) use the Software on a Named
User basis meaning specific individuals are authorized to access the Software
and the total number of named users may not exceed the total number licensed by
You.
b) copy the Software in
machine-readable form solely for backup purposes.
If you do not pay the license fee before the Evaluation
Period expires, the present License will be immediately terminated and you lose
any right to the Software.
2.3 The Named User of the Software may install and use the
Software on as many computers (including operating systems) as he or she likes.
3. LICENSE RESTRICTIONS
3.1 You may not provide or make available by any means the
License Key to any third party. You undertake to take such steps as are
necessary in order to protect the License Key against unauthorized use.
3.2 You may not alter, merge, modify, adapt or translate
the Software, or decompile, reverse engineer, disassemble, or otherwise reduce
the Software to a human-perceivable form.
3.3 You may not sell, rent, lease, sublicense, transfer,
resell for profit or otherwise distribute the Software or any part thereof.
3.4 You may not modify the Software or create derivative
works based upon the Software.
3.5 You may not remove or obscure any copyright and
trademark notices relating to the Software.
4. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
4.1 This Agreement gives you limited rights to use the
Software. Centeractive retain any and all rights, title and interest in and to
the Software and all copies thereof, including copyrights, patents, trade
secret rights, trademarks and other intellectual property rights. All rights
not specifically granted in this Agreement, including International Copyrights,
are reserved by Centeractive. The structure, organization and code of the
Software are valuable trade secrets and confidential information of Centeractive.
5. PATENT AND COPYRIGHT INDEMNITY
5.1 Centeractive will defend and indemnify You for all
costs (including reasonable attorneys fees) arising from a claim that Software
furnished and used within the scope of this Agreement infringes the copyright
or other intellectual property rights of any third party, provided that:
(i) You notify Centeractive in
writing within 30 days of the claim, (ii) Centeractive has sole control of the
defense and all related settlement negotiations, and (iii) You provide Centeractive
with the assistance, information, and authority necessary to perform the above.
5.2 Centeractive will have no liability for any claim of
infringement based on (i) code contained within the
Software which was not created by Centeractive (ii) use of a superseded or
altered release of the Software, except for such alteration(s) or
modification(s) which have been made by Centeractive or under Centeractive'
direction, if such infringement would have been avoided by the use of a
current, unaltered release of the Software that Centeractive provides to You,
or (iii)the combination, operation, or use of any Software furnished under this
Agreement with programs or data not furnished by Centeractive if such
infringement would have been avoided by the use of the Software without such
programs or data.
5.3 In the event the Software is held or believed by Centeractive
to infringe, or Your use of the Software is enjoined, Centeractive will have
the option, at its expense, to (i) modify the
Software to cause it to become non-infringing, (ii) obtain for You a license to
continue using the Software, (iii) substitute the Software with other Software
reasonably suitable to You, or (iv) if none of the foregoing remedies are
commercially feasible, terminate the license for the infringing Software and
refund any license fees paid for the Software, prorated over a three-year term
from the effective date of the Agreement. This Section states Centeractive'
entire liability for infringement.
6. LIMITED WARRANTIES
6.1 Centeractive warrants that it holds the proper rights
allowing it to license the Software and is not currently aware of any actions
that may affect its rights to do so.
6.2 THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS,
EXCEPT AS PROVIDED IN SECTION 5.1, CENTERACTIVE MAKES NO WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OR
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITATION, YOU
ASSUME SOLE RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED
RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM THE SOFTWARE. CENTERACTIVE
MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR FREE OR FREE FROM
INTERRUPTIONS OR OTHER FAILURES. IN PARTICULAR, THE SOFTWARE IS NOT DESIGNED
FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE. CENTERACTIVE
EXPRESSLY DISCLAIMS ANY WARRANTY OF FITNESS FOR HIGH-RISK ACTIVITIES.
7. NO REFUND
7.1 Because the Software is provided free of charge during
the Evaluation Period to allow potential customers to evaluate and test it
before paying the license fee, Centeractive enforces a strict no-refund policy.
Please evaluate and test the Software carefully during the Evaluation Period.
Once you pay the license fee, your payment is final and may not be reimbursed.
8. SUPPORT & MAINTENANCE PACK
The SMP includes the following services.
8.2 Technical Support: Technical
support is provided via e-mail or a web-based support form. Centeractive will
respond within 1-3 business days during European business hours (MO - FR, 8am
UTC – 5pm UTC, Swiss holidays excluded).
8.3 Free Updates: You
will receive all maintenance releases or updates for the duration of the
support period, which may or may not include additional features. Updates and
maintenance releases only cover the minor releases within the same major
version of the software that you have purchased; upgrades to the next major
version are not included.
8.4 Maintenance: During
the support period you may also report any software problem or error to
Centeractive using the same support process. If Centeractive determines that a
reported reproducible material error in the software exists and significantly
impairs the usability and utility of the software, Centeractive agrees to use
reasonable commercial efforts to correct or provide a usable work-around
solution in an upcoming maintenance release or update, which is made available
at certain times at Centeractive sole discretion.
8.5 Support Period: The
Support & Maintenance Package covers the product for an entire year! The
support period begins on the day you purchase SMP, which must be within
30 days from the day you purchased the software, and extends for a period of
exactly 12 months. The support period is not dependent on when you
purchase the product - it always covers precisely 12 months from the day that
you purchase SMP. During the Support Period, you receive Support &
Maintenance services from Centeractive as they are described in this section.
9. LIMITATION OF LIABILITY
9.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN
NO EVENT SHALL CENTERACTIVE OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT
LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION,
FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR
FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR
NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT
OF OR IN ANY WAY RELATED TO THE USE OR INABILITY TO USE THE SOFTWARE, THE
PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN
CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN EVENT OF FAULT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF
WARRANTY OF CENTERACTIVE OR ANY SUPPLIER, AND EVEN IF CENTERACTIVE OR ANY
SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, CENTERACTIVE
ENTIRE LIABILITY UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED TO THE
GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR CHF 5.00.
10. HIGH RISK ACTIVITIES
10.1 The Software is not fault-tolerant and is not
designed, manufactured or intended for use or resale as on-line control
equipment in hazardous environments requiring fail-safe performance, such as in
the operation of nuclear facilities, aircraft navigation or communication
systems, air traffic control, direct life support machines, or weapons systems,
in which the failure of the Software could lead directly to death, personal
injury, or severe physical or environmental damage ("High Risk
Activities"). Centeractive and its suppliers specifically disclaim any
express or implied warranty of fitness for High Risk Activities.
11. THIRD PARTY SOFTWARE
11.1 The Software may contain third party software that
requires and/or additional terms and conditions. Such required third party
software notices and/or additional terms and conditions are located at http://www.centeractive.com/thirdparty/index.html and are made a part of and incorporated by reference into this EULA. By accepting
this EULA, You are also accepting the additional terms and conditions, if any,
forth therein.
12. DURATION
12.1 This Agreement will terminate at the end of Evaluation
Period unless You purchase an ongoing license by
paying the license fee. In the event that You purchase
an ongoing license prior to the end of the Evaluation Period, this Agreement
shall remain in effect until terminated by either party. You may terminate the
Agreement at any time by destroying all copies of the Software. Centeractive
may terminate the Agreement upon breach of your obligations under the present
Agreement.
13. GENERAL
13.1 Centeractive reserves the right at any time to cease
the support of the Software and to alter prices, features, specifications,
capabilities, functions, licensing terms, release dates, general availability
or other characteristics of the Software.
13.2 If any provision hereof shall be held illegal, invalid
or unenforceable, in whole or in part, such provision shall be modified to the
minimum extent necessary to make it legal, valid and enforceable, and the
legality, validity and enforceability of all other provisions of this Agreement
shall not be affected.
13.3 This EULA will be governed by and construed in
accordance with Swiss law and both parties submit to the exclusive jurisdiction
of the Court of the Canton of Berne, Switzerland. Service of process upon
either party shall be valid if served by registered or certified mail, return
receipt requested and to the most current address provided by such party. The
United Nations Convention on Contracts for the International Sale of Goods shall
not apply to this Agreement.
13.4 You may not assign this Agreement in whole or in part,
without Centeractive' prior written consent. Any attempt by You
to assign this Agreement without such consent will be null and void.
13.5 This Agreement contains the entire agreement between Centeractive and You related to the software and supersedes all prior agreements and understandings, whether oral or written. All questions concerning this Agreement shall be directed to support@centeractive.com