ILOG SHRINK-WRAP SOFTWARE LICENSE AGREEMENT FOR THAT ILOG SOFTWARE PRODUCT KNOWN AS ILOG ELIXIR
VERY IMPORTANT - READ
CAREFULLY: This ILOG
Shrink-Wrap Software License Agreement (the "Agreement") is a legal
binding agreement between You, the licensee, (the "Licensee",
"You", or "Your") and ILOG S.A. ("ILOG"), for a
license of use for the ILOG software product containing this Agreement or
identified on the disk or CD-ROM enclosed with the package which contain
computer software and printed materials, which may also be available
"on-line" or by electronic documentation (the "Software")
and for which the CD-Key(s) are either provided on the back of the enclosed CD
case or obtained through ILOG or its authorized distributor. ILOG, or its
suppliers or licensors, retain title to all portions of the ILOG technology and
the Software and any full or partial copies thereof. Except as expressly provided
under this Agreement, no rights, title or interest to the ILOG technology is
transferred to You.
YOUR LICENSED USE OF THE SOFTWARE IS
CONDITIONED UPON YOUR AGREEMENT AND FULL COMPLIANCE WITH THE FOLLOWING TERMS
AND CONDITIONS. BEFORE YOU ARE PERMITTED TO CONTINUE TO INSTALL THE SOFTWARE,
BY SELECTING "I ACCEPT", OR BY INSTALLING, COPYING, OR OTHERWISE
USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT
INCLUDING BUT NOT LIMITED TO THE GRANT AND RESTRICTIONS OF LICENSE, WARRANTY
DISCLAIMERS, LIMITATIONS ON LIABILITY AND TERMINATION PROVISIONS.
If You do not agree to the
terms of this Agreement, do not install the Software, rather immediately
terminate the install process and return the unused Software to the place from
which You obtained it within thirty (30) days of the date of purchase and You
will receive a refund of Your purchase price. Your rights to use the Software
are specified in this Agreement.
1. LICENSE GRANT AND
RESTRICTIONS - FOR NON-COMMERCIAL INTERNAL BUSINESS OPERATIONS OF LICENSEE
A. General License Grant. Subject to the terms and conditions
of this Agreement, ILOG hereby grants to You, and You accept, a non-exclusive,
non-transferable license to use, copy and modify the Software only as
authorized herein. The Software is licensed per individual developer. You may
make copies on more than one computer, as long as the use of the Software is
access and used by the same developer. 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 devise) of that
computer. However, installation on a network server for the sole purpose of
internal distribution to one or more other computer(s) shall not constitute "use"
for which a separate license is required, provided You have a separate license
for each computer to which the Software is distributed. Solely with respect to
electronic documents included with the Software, You may make a copy (either in
hardcopy or electronic form) for each developer for which the Software has been
licensed; provided, that such copies shall be used only by Your developer for
Your internal business purposes and are not to be republished or distributed to
any other third party or developer in any way including but not limited to as
part of a value added reseller product or as part of an OEM offering.
B. Additional Terms - Software Source Code. With respect to
the 'Software Source Code', the original, untranslated version of a computer
program written in Adobe® Flex Action Script and MXML programming languages,
which is in a human-readable format, and that must be translated by an
assembler, compiler, or interpreter onto a machine language program
("Object Code") in order to run on a computer, provided in related
files, such is licensed to You for the sole purposes of education and
troubleshooting. YOU ACKNOWLEDGE, AGREE AND UNDERSTAND THAT SOFTWARE SOURCE
CODE IS LICENSED 'AS IS' AND THAT ILOG DOES NOT PROVIDE ANY TECHNICAL SUPPORT
FOR SOFTWARE SOURCE CODE.
C. Additional Terms - Application Development License.
"Application" means the software program that is created by or for
You using the Software (in whole or in part) and which embeds and/or executes
the Software for your internal business purposes and not as a part of an
offering to a third party. In the event You use the Software to develop any
modifications, enhancements, derivative works, such modifications,
enhancements, derivative works and/or extensions and all rights associated therewith,
you will have a licensed to use such for your internal business operations. You
will not grant, either expressly or impliedly, any rights, title, interest, or
licenses to any such modifications, enhancements, derivative works and/or
extensions to any third party. You will, however, be entitled to use such
modifications, enhancements, derivative works and/or extensions under the terms
set forth in this Agreement. You hereby agree to indemnify, hold harmless, and
defend ILOG from and against any and all liabilities, damages, losses, costs
and expenses (including reasonable attorneys' fees) arising from or related to
any claim, action, proceeding or allegation that arises or results, either
directly or indirectly, from the use and distribution of any of Your software
Application product(s) or components.
D. Additional Terms - Sample Code. "Sample Code"
means sample software in source code format and found in directories labeled
"samples" and "templates." You may modify the Sample Code
solely for the purposes of designing, developing and testing Your software
Applications which are for use internally. However, You are only permitted to
use, copy and redistribute internally the modified Sample Code if all of the
following conditions are met: (a) You include ILOG's copyright notice with Your
Application, including every location in which any other copyright notice
appears in such Application; and (b) You do not market Your Application; and
(c) You agree to the Indemnity provisions in Section 8 herein.
E. Software License Restrictions. ABSENT WRITTEN
PRE-AUTHORIZATION SIGNED BY ILOG AND PAYMENT OF ADDITIONAL FEES TO ILOG FOR
SUCH EXPANDED LICENSED RIGHTS, YOU ARE NOT LICENSED TO USE OR INCORPORATE THE
SOFTWARE, IN WHOLE OR IN PART, AS PART OF AN OEM OFFERING OR A SERVICE OFFERING
OR VAR PURPOSE OR FOR DEPLOYMENT TO THIRD PARTIES OR FOR ANY COMMERCIAL USE.
SUCH RESTRICTION IS APPLICABLE WHETHER OR NOT YOU HAVE RECEIVED FEES FOR SUCH
APPLICATION OR SERVICE. Further, except as expressly permitted under this Agreement,
You may not, nor allow others in Your control or under contract to You to: (i)
distribute, disseminate, sublicense, copy, modify, reverse engineer, decompile,
translate, disassemble or create a source code equivalent of the Software or
permit, allow or facilitate others to do so for Your benefit; (ii) use the
Software on any platform that is not supported by ILOG as indicated in the ILOG
documentation; (iii) use the Software to provide software application services,
time-sharing or service bureau services to third parties or (iv) create
derivative works from the Software for commercial use (v) transfer, rent,
lease, give, loan, distribute, transmit over an external network, or sublicense
the Software or the documentation in whole or in part; (vi) license or
sublicense to third parties any Application created by or on behalf of You
which includes any part of the Software. You may not use the Software Source
Code for any purpose other than to assist You to identity a 'bug' in the
Software. The Software includes various components designed and licensed to You
as a single product however, while You are not required to use all component
parts of the Software, You shall not un-bundle the component parts for use on
different platforms or to repackage Software. You may not distribute the ILOG
source code, or any modification, enhancement, derivative work and/or extension
thereto, in source code form. Licensee shall not be entitled to use the
Software and/or the Software Source Code to develop a product that competes
with the Licensed Software or which has the same or substantially the same
features as the Software. For further clarity, under no circumstances may the
Software Source Code be used in whole or in part, as the basis for creating a
product that provides the same, or substantially the same, functionality as any
ILOG product. You will not take any action, or assist or otherwise aid anyone
else in taking any action, that would limit ILOG' independent development,
sale, assignment, licensing or use of its own software or any modification,
enhancement, derivative work and/or extension thereto. Under no circumstances
may any portion of the source code be distributed, disclosed or otherwise made
available to any third party without the express, prior written consent of
ILOG. ALL RIGHTS NOT EXPRESSLY GRANTED UNDER THIS AGREEMENT ARE
RESERVED BY ILOG.
2. AUDIT RIGHTS. ILOG and/or its authorized resellers
shall have the right to review at their expense, at least once during any
annual period, to appoint its own personnel or an independent third party to
verify the number of copies and installations as well as usage of the ILOG
software in use by, or on behalf of, You. Any such verification shall be
conducted upon no less than seven (7) business days notice, during regular
business hours at Your offices and shall not unreasonably interfere with Your
business activities. Both ILOG and its auditors shall execute a commercially
reasonable non-disclosure agreement with You before proceeding with the
verification. If such verification shows that You are using a greater number of
copies of the Software, or are deploying or using the Software in any way not
permitted under this Agreement and which would require additional license fees,
You shall pay the applicable fees for such additional copies within thirty (30)
days of invoice date, with such underpaid fees being the license fees as per
ILOG's then-current, country specific, license fee list. If underpaid fees are
in excess of five percent (5%) of the value of the fees paid under this
Agreement, then Licensee shall pay such underpaid fees and ILOG's reasonable
costs of conducting the verification. This Section shall survive expiration or
termination of this Agreement for a period of two (2) years. Failure to pay
shall be a material breach of this Agreement.
3. CONFIDENTIALITY; INJUNCTIVE RELIEF. You acknowledge
that the Software, the structure, organization and code of the 'Elixir
Components' and any source code provided to You pursuant to this Agreement, as
well as any modification, enhancement, derivative work and/or extension thereto
are the valuable trade secrets and confidential information of ILOG
4. COPYRIGHT. You will not modify or delete, in whole
or part, any copyright, trade secret, proprietary, confidential or other notice
thereon or therein without the express, prior written consent of ILOG. All
title and copyrights in and to the Software and the accompanying printed
materials are owned by ILOG or its suppliers. The Software is protected by
5. MAINTENANCE SERVICES. General information about the Software
is available at http://elixir.ilog.com.
ILOG is not obligated to provide maintenance, technical support or updates for
the Software however, under separate written agreement signed by ILOG and
payment to ILOG of applicable fees certain maintenance services are available.
6. LIMITED WARRANTY. (i) ILOG warrants it has the
right, title or authority to grant the license to the Software. (ii) ILOG
warrants for a period of thirty (30) days from the date of receipt thereof,
that the media on which the Software is furnished will be free of defects in
materials; and that the unmodified, unaltered 'out-of-the-box' Software will
perform substantially in accordance with the accompanying ILOG documentation.
ILOG does not warranty that the Software will be error-free. ILOG' and its
suppliers' entire liability, in contract, tort or otherwise, and Your exclusive
remedy under the performance warranty set forth in this Section, shall be, at
ILOG's option, either (a) return of the purchase price, or (b) repair or
replacement of the defective media or Software. Software purchased other than
directly from ILOG shall be returned to the place it was purchased. 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 thirty (30) day period. EXCEPT AS EXPRESSLY SET FORTH
IN THIS SECTION, ILOG AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EITHER
EXPRESS OR IMPLIED, WHETHER ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A
COURSE OF DEALING OR USAGE OR TRADE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF ACCURACY, COMPLETENESS, PERFORMANCE, CURRENCY, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE SOFTWARE.
7. LIMITATION OF LIABILITY. ILOG's liability, whether
in contract, tort, or otherwise, arising out of Your use of, or in connection
with, the Software shall not exceed the amount of the license fee received by
ILOG from Your license for the use of the Software. IN NO EVENT SHALL ILOG OR
ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS
PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER
PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE,
EVEN IF ILOG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some states
and jurisdictions do not allow the exclusion or limitation of liability for
consequential or incidental damages, or the exclusion of implied warranties or
limitations on how long a warranty may last, so the limitations in may not
apply to You. THIS SECTION SURVIVES TERMINATION OR EXPIRATION OF THE AGREEMENT.
8. INDEMNIFICATION - APPLICATION DEVELOPED BY LICENSEE.
You will indemnify, defend (at Your expense) and hold ILOG harmless from any
claim, suit or proceeding arising out of a claim that an application created
by, or on behalf of, You infringes a third party intellectual property right.
Such indemnification obligation will require that ILOG give You prompt written
notice of any such claim and cooperate with You, at Your cost and expense, in
the defense and settlement of any such claim. You will pay any settlement,
costs and damages awarded after final appeal, but You will not be responsible
for any settlement or compromise made without Your consent.
9. U.S. GOVERNMENT; RESTRICTED RIGHTS. To the extent
any license to Software and documentation is provided to the United States of
America, its agencies and/or the U.S. Government ("the Government")
as the Software was developed exclusively at private expense, such shall be
deemed to be provided with RESTRICTED RIGHTS. Thus, use, duplication, or
disclosure by the Government is subject to restrictions as set forth in 48
C.F.R. 2.101 (October 1995), consisting of "Commercial Computer
Software" and "Commercial Computer Software Documentation" as
such terms are used in 48 C.F.R. 12.212 (September 1995) and in FAR Sections
52-227-14 and 52-227-19 or DFARS Section 52.227-7013 (C)(1)(ii), or their
successors, as applicable. Consistent with 48 C.F.R. 12.212 and 48 C.F.R.
227.7202-1 through 227.7204-4 (June 1995), or any successor regulations, this
Software is provided to Government users pursuant to the terms and conditions
herein.
10. TERMINATION; SURVIVAL. This Agreement and Your
right to use the Software will terminate immediately without notice from ILOG
if You fail to comply with the terms and conditions of this Agreement. Upon
termination, You agree to destroy the Software, including all accompanying
documents and copies. This is in addition to and not in lieu of any criminal,
civil or other remedies available to ILOG. Sections that by their nature are
intended to survive expiration or termination of this Agreement shall survive
any expiration or termination of this Agreement.
11. COMPLIANCE WITH LAWS; GOVERNING LAW; WAIVER. Each
party agrees that it will strictly comply with all national, federal, state,
territorial and local laws and regulations, including but not limited to import
or export laws and regulations, pertaining to the use of the Licensed Software
and/or documentation. This Agreement shall be governed and construed by the
laws of the State of California, excluding its conflict of laws provision. The
failure to enforce any right will not be deemed a waiver of such or any other
right, including the right to enforce a subsequent breach of the same
obligation. In the event that any part of this Agreement is found to be
unenforceable, the remainder shall continue in effect and such part shall be
changed and interpreted so as to best accomplish the objectives of such part to
the extent permissible by law and consistent with the intent of the Parties as
of the Effective Date.
12. MISCELLANEOUS. This is a license agreement and NOT
an agreement for sale. In the event of invalidity of any provision of this
Agreement, the parties agree that such invalidity shall not affect the validity
of the remaining portions. This Agreement may only be modified by a fully
executed written amendment signed by ILOG which references this Agreement; for
clarity, no purchase orders, other ordering documentation, email or any hand
written or typewritten text which purports to modify or supplement this
Agreement shall add to or vary the terms and conditions of this Agreement. You
agree that You will not export or re-export the Software without the
appropriate United States or foreign government licenses. This is the entire
agreement between You and ILOG which supersedes any prior agreement, whether
written or oral, relating to this subject matter. You shall be responsible for
any taxes owed in connection with Your purchase of licenses to the Software. If
You have any questions regarding this Agreement or if You wish to request any
information from ILOG please use the address and contact information included
with this product to contact the ILOG office serving Your jurisdiction. ILOG is
either a registered trademark or trademark of ILOG S.A. in the United States
and/or other countries.
ILOG S.A.
BP 85
9 rue de verdun
94253 Gentilly Cedex
France