APPGATE NETWORK SECURITY AB ("APPGATE")
MINDTERM COMMERCIAL LICENSE AGREEMENT
PLEASE REVIEW THE FOLLOWING TERMS AND CONDITIONS PRIOR TO ACCESSING,
DOWNLOADING AND/OR OTHERWISE USING ANY OF THE LICENSED PRODUCTS, AS
HEREIN AFTER DEFINED.
THE USE OF THE LICENSED PRODUCTS AS WELL AS ANY UPDATES THERETO IS
SUBJECT TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT (THE
AGREEMENT). BY OPENING THE RELEVANT SOFTWARE PACKAGE, BY SELECTING THE
[AGREED AND/OR ACCEPT] BUTTON, DOWNLOADING AND/OR OTHERWISE USING THE
SOFTWARE OR ANY PORTION THEREOF, LICENSEE (THE FIRM, COMPANY OR OTHER
PERSON HAVING RECEIVED THE LICENSED SOFTWARE PURSUANT TO AN ORDER ON
THE APPGATE WEB SITE OR OTHERWISE) ARE AGREEING TO THE BOUND BY THE
TERMS AND CONDITIONS OF THE AGREEMENT AND ARE ENTERING INTO THE
AGREEMENT WITH APPGATE NETWORK SECURITY AB (LICENSOR OR APPGATE).
1. DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
1.1 "License" means the license to use the Licensed Product as defined
in Section 2.
1.2 "Licensed Products" means the computer programs and/or software
product known as MindTerm, in object code form only, and related
documentation. (Use of source code is subject to the conditions set
forth in the MindTerm Public Source license agreement.)
1.3 "Usage, Use or Used" includes the act of transferring,
transmitting, compiling, executing, interpreting, processing or
storing the Licensed Products through the use of computer equipment,
or transferring, transmitting, compiling, executing, interpreting,
processing or storing any data or information using the Licensed
Products; and/or displaying any portion of the Licensed Products or
data or information in connection with any of these activities.
2. GRANT OF LICENSE
2.1 Non-exclusive License
Subject to Licensee's timely payment of yearly License fees and
compliance with the terms and conditions of this Agreement, Licensor
hereby grants to Licensee, and Licensee hereby accepts from Licensor,
a non-exclusive, non-transferable and non-assignable license to Use
the Licensed Products; provided, however, that this Agreement does not
grant to Licensee any title or right of ownership in or to the
Licensed Products.
2.1.2 Use
The Licensed Products may be Used only for Licensee's own internal
computing requirements in accordance with the terms and conditions set
forth herein and strictly limited to the number of users as agreed
upon. If a site license is purchased, Licensee has the right to have
an unlimited number of users connecting to servers located at one
geographical site.
Licensee is allowed to use the MindTerm source code according to the
MindTerm Public Source license agreement . Licensee is allowed to use
any derivative works of the Licensed Products for its own internal
computing requirements according to the terms and conditions of this
Agreement.
3. TERM OF LICENSE
The license remains effective from the date of Licensee's entering
into this Agreement with Licensor for one (1) year periods at the
time, unless terminated by either party. Licensee may terminate this
Agreement at any time by destroying the Licensed Product together will
all copies of the Licensed Product in any form. In addition, this
Agreement will automatically terminate without notice if Licensee
fails to comply with any term or condition of this Agreement. Upon the
termination of the Agreement for whatever reason Licensee must destroy
or return all copies of the Licensed Product in any form and, upon
Licensors request, provide Licensor with a written certification of
actions taken pursuant hereto, signed by an authorized officer of
Licensee.
4. LICENSE FEE
In consideration of the grant of the License, Licensee shall pay to
Licensor the applicable yearly license fee (the "License
Fee"). Licensee shall pay the License Fee concurrent with this
agreement, coming into effect.
The License Fee is exclusive of VAT and Licensee shall be solely
responsible for all taxes on payments required to be paid to Licensor
under the Agreement, including, without limitation state and local
use, sales, property and other taxes, and excluding only taxes
calculated solely on Licensor's income.
In the event that this Agreement terminates, for any reason or for no
reason, Licensee shall not be entitled to a refund of any amounts paid
to Licensor.
5. MAINTENANCE AND SUPPORT
At Licensees request, Licensor will provide Licensee with maintenance
and support, including error correction and provision of updates
pursuant to Exhibit A.
6. NO COPYING AND RESTRICTED USE
6.1 No Copying
Licensee shall not make, have made or permit its employees or third
parties to make any copies or verbal or media translations of the
Licensed Products, in whole or part. Notwithstanding the above and
only to the extent necessary considering the intended use of the
Licensed Products, Licensee may make, free of charge, copies of the
Licensed Products for archival and back-up purposes. Further more,
Licensee shall not Use or allow the Licensed Products to be Used,
directly or indirectly, in any manner that would enable its customers
or any other person or entity to copy or Use any of the Licensed
Products.
6.2 No Transfer of License; No Sublicense
Licensee shall not assign or transfer this License, or license or
sublicense the Use of all or any portion of the Licensed Products, to
any other party.
6.3 No Modification or Decompilation
Unless permitted to do so under any such agreement as mentioned under
Section 6.1, Licensee shall not modify, disassemble, decompile,
recreate or generate any Licensed Products or any portion or version
thereof unless and to the extent permitted under Swedish mandatory
law.
6.4 Export
Licensee shall not export or re-export the Licensed Products or permit
transshipment thereof, directly or indirectly, to any country to the
extent such country requires an export license or other governmental
approval, without first obtaining such license or
approval. Furthermore, Licensee shall, at all times, comply with all
applicable export regulations and restrictions of all applicable
jurisdictions, including, but not limited to, the United States of
America.
6.5 Proprietary Markings
Licensee shall not remove, erase or hide from view any copyright,
trademark, confidentiality notice, mark or legend appearing on any of
the Licensed Products or any form of output produced by the Licensed
Products.
7. LIMITED WARRANTY
7.1 Limited Warranty
Licensor warrants for the sole benefit of Licensee that, if properly
Used by Licensee in accordance with the terms and conditions of this
Agreement, Licensor's instructions, the Licensed Products, except for
defects or non-conformities causing minor deviations, shall achieve
the functionality described in the documentation in effect at the date
hereof for a period of three (3) months from the date of the
Certificate of Installation ("Warranty Period"). It is a precondition
of Licensor's warranty that Licensee promptly notifies Licensor in
writing upon discovery of any such non-conformance of the Licensed
Products. Licensor reserves the right to conduct tests in such form
and manner as it may deem appropriate to substantiate or correct any
claimed non-conformance of the Licensed Products. Licensor's sole
obligation under this warranty shall be at the sole discretion of
Licensor, to supply Licensee with a corrected version of the Licensed
Products or to terminate this Agreement and refund to Licensee the
full amount of the License Fee. If Licensee fails to give Licensor
prompt notice of a failure, and the failure causes further
deterioration in the performance of the Licensed Products, Licensor
shall not have any obligation to correct the failure.
7.2 Limitations on Warranty
Notwithstanding the warranty provisions set forth above, Licensor
shall have no warranty obligations if Licensee does not Use the
Licensed Products in accordance with this Agreement, all instructions
provided by Licensor and the documentation, as the same may be amended
from time to time. In addition, Licensor shall have no warranty
obligations for Licensed Products if Licensee or any other party has
modified or attempted to modify any portion of the Licensed Products.
7.3 Responsibility for Use
Licensee assumes full responsibility for its Use of the Licensed
Products and any information processed therewith,
7.4 Applet expiration
The MindTerm applet is a signed applet, which means periodically the
certificate used to sign the applet will expire and the applet ceases
to function. Therefore at regular intervals (usually a couple of times
a year), a new copy of the applet must be obtained and installed to
maintain its functionality. In order to be able to download the
updated copy of the applet, the yearly License Fee must be paid. This
certificate expiration applies to the MindTerm applet only, not the
standalone MindTerm binary.
7.5 No Further Warranties
THE WARRANTIES GIVEN IN THIS SECTION 7 CONSTITUTE THE ONLY
REPRESENTATIONS AND WARRANTIES MADE BY LICENSOR WITH RESPECT TO
DEFECTS OF NON-CONFORMITIES IN THE LICENSED PRODUCTS AND ARE IN LIEU
OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY AND REMEDIES
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF OR DAMAGE TO
REVENUES, PROFITS OR GOODWILL OR OTHER SPECIAL, INCIDENTAL, INDIRECT
OR CONSEQUENTIAL DAMAGES OF ANY KIND, RESULTING FROM ITS PERFORMANCE
OR FAILURE TO PERFORM PURSUANT TO THE TERMS OF THIS AGREEMENT OR ANY
EXHIBITS HERETO, OR RESULTING FROM THE FURNISHING, PERFORMANCE, OR USE
OR LOSS OF USE, LOSS OF DATA OR LOSS OF ANY LICENSED PRODUCTS OR OTHER
MATERIALS DELIVERED TO LICENSEE HEREUNDER, INCLUDING, WITHOUT
LIMITATION, ANY INTERRUPTION OF BUSINESS, WHETHER RESULTING FROM
BREACH OF CONTRACT OR BREACH OF WARRANTY, EVEN IF THE OTHER PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL
LICENSOR BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE LICENSE FEE, EVEN
IF LICENSOR SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION
OF INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES SO THIS LIMITATION
AND EXCLUSION MAY NOT APPLY TO YOU.
9. PATENT, TRADE SECRET AND COPYRIGHT INDEMNIFICATION
9.1 Defense of Suits
Licensor will have the right, but not the obligation, to defend
Licensee, at Licensor's expense, in connection with a claim that
Licensee Use of the Licensed Product is an infringement of a third
party's intellectual property rights, in which case Licensee agree
to cooperate with Licensor and Licensor will in such case pay all
damages costs and fees awarded by a court or tribunal of competent
jurisdiction, or such settlement amount negotiated by Licensor and
attributable to such claim.
9.3 Infringement Alternatives
If the Licensed Products are subject of a claim, suit or proceeding
of Infringement, Licensor shall either (a) procure, at no cost to
Licensee, the right to continue Usage of the Licensed Products, (b)
replace or modify the Licensed Products, at no cost to Licensee, to
make it non-infringing, provided that the same functionality is
provided by the replacement or modified Licensed Products, or (c) if
the right to continue Usage cannot be procured for Licensee for a
cost not exceeding the amounts paid hereunder by Licensee or the
Licensed Products cannot be replaced or modified to make it
non-infringing, Licensor may terminate the License for such Licensed
Products and refund the aggregate amount of fees and other
remunerations paid hereunder in respect of the relevant Licensed
Product.
9.4 Non-conforming Use
Licensor shall have no liability for any claim, suit or proceeding of
infringement based on the (a) Usage of other than the then latest
release of the Licensed Products provided by Licensor, if such
Infringement could have been avoided by the Usage of the latest
release of Licensed Products and such latest version has been made
available to Licensee, or (b) Usage or combination of the Licensed
Products with software, hardware or other materials not provided,
recommended or approved by Licensor.
10 Marketing
Licensors has the right to use OEM's Logo on the licensors website and
upon request the OEM will provide to the Licensors with the OEM's
Logo. OEM has the right to use Licensors Logo on the OEM' website and
upon request Licensors will provide to the OEM the Licensors Logo.
11 MISCELLANEOUS
11.1 Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with
the laws of the Country of Sweden, without reference to conflicts of
law provisions. The exclusive jurisdiction and venue for all legal
actions relating to this Agreement shall be in courts of competent
subject matter jurisdiction located in the Country of Sweden and
Licensee hereby expressly and irrevocably consents to the jurisdiction
of the courts of the Country of Sweden.
EXHIBIT A
MAINTENANCE AND SUPPORT
At Licensee's request and subject to Licensee's timely payment of the
yearly Fees, AppGate will provide Maintenance and Support, as
hereinafter defined, for Licensee of the Product pursuant to the terms
of this Exhibit A. Maintenance and Support is only given for the
AppGate supplied version - not for any modified or derivative versions
thereof.
Maintenance
Upgrades, updates and patches to MindTerm will be made available on
the AppGate web site. Information on updates and upgrades can be
e-mailed to customers who subscribe for the Support services and have
registered an email address with AppGate for this purpose. Because of
uncertainties related to technology, AppGate cannot guarantee the
delivery of the e-mails.
AppGate will provide Maintenance of a MindTerm version up to six (6)
months after the release of a new MindTerm version. AppGate reserves
the right to maintain only the latest version of MindTerm thus
providing Licensee with the latest version available.
Support
AppGate provides technical information on the support web, which is
accessible 24h, 7 days per week. AppGate also offers telephone and
e-mail support service during normal business hours, 8am - 5pm
CET. The support does not include on site support. Because of
uncertainties related to technology, AppGate cannot guarantee such
support services will always be available in accordance with the
intentions. Support is only given for the AppGate supplied version
- not for any modified or derivative versions thereof.
Fees
Support is included in the yearly License Fee. In case of termination
of the License Agreement, AppGate shall have no further obligation to
provide Maintenance and Support services and Licensee will not be
entitled to any refund of amounts paid to AppGate.
TERM AND RENEWAL
This Agreement shall come into effect when accepted by both parties
and shall continue in effect for one (1) year periods at the time,
unless terminated by either party giving the other party at least
three (3) months written notice before the end of each one year
period. Notwithstanding the aforesaid Licensee shall always be
entitled to terminate this Agreement with one (1) month written
notice. However Licensee shall in no event be entitled to any refund
of support and maintenance fees paid to AppGate.
OTHER TERMS
Limitation of Warranties and Remedies
AppGate warrants that its Support services will be performed in a good
and workmanlike manner. Requesting re-performance of services shall be
Licensee's sole remedy under this warranty. Licensee shall have no
remedy under the foregoing warranty to the extent that Licensee fails
to report in writing any defect claimed to be a breach of warranty
within thirty (30) days of the performance of the Support services.
THE EXPRESS WARRANTY SET FORTH IN THIS SECTION IS THE ONLY WARRANTY
MADE BY APPGATE WITH RESPECT TO THE SUPPORT SERVICES PROVIDED BY
APPGATE. APPGATE MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR
ARISING BY CUSTOM OR TRADE
USAGE, AND, SPECIFICALLY, MAKES NO WARRANTY OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE. APPGATE'S EXPRESS WARRANTY SHALL
NOT BE ENLARGED, DIMINISHED OR AFFECTED BY, AND NO OBLIGATION OR
LIABILITY SHALL ARISE OUT OF, APPGATE RENDERING TECHNICAL OR OTHER
ADVICE OR SERVICE IN CONNECTION WITH THE AGREEMENT.
Limitation of Liability
IN NO EVENT SHALL APPGATE BE LIABLE FOR ANY LOSS OF OR DAMAGE TO
REVENUES, PROFITS OR GOODWILL OR OTHER SPECIAL, INCIDENTAL, INDIRECT
OR CONSEQUENTIAL DAMAGES OF ANY KIND, RESULTING FROM ITS PERFORMANCE
OR FAILURE TO PERFORM PURSUANT TO THE TERMS AND CONDITIONS HEREIN
CONTAINED OR ANY EXHIBITS
HERETO, OR RESULTING FROM THE FURNISHING, PERFORMANCE, OR USE OR LOSS
OF USE, LOSS OF DATA OR LOSS OF ANY LICENSED PRODUCTS OR OTHER
MATERIALS DELIVERED TO LICENSEE HEREUNDER, INCLUDING, WITHOUT
LIMITATION, ANY INTERRUPTION OF BUSINESS, WHETHER RESULTING FROM
BREACH OF CONTRACT OR BREACH OF WARRANTY, EVEN IF APPGATE HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPGATE'S LIABILITY,
WHETHER IN CONTRACT, TORT, OR OTHERWISE,
UNDER THESE TERMS AND CONDITIONS SHALL IN NO EVENT EXCEED THE LATEST
YEARLY MAINTENANCE AND SUPPORT FEE PAID TO APPGATE.
PCA 13 version 2.1
