| SimpServer test releases License Agreement |
| |
| This Agreement sets forth the terms and conditions under which test releases |
| (also called beta versions) of the software known as SimpServer will be licensed |
| by Secway SARL ("Secway") to you ("Licensee") for the duration of the test |
| period. |
| |
| IMPORTANT: BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING OR |
| DISTRIBUTING SIMPSERVER BETA VERSIONS (THE "PRODUCT") OR ANY OF ITS FILES (THE |
| "PACKAGE"), THE INDIVIDUAL OR ENTITY LICENSING THE PRODUCT ("LICENSEE") IS |
| CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT. IF LICENSEE |
| DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON- |
| ACCEPTANCE MUST BE SELECTED, AND LICENSEE MUST NOT INSTALL OR DISTRIBUTE OR USE |
| THE SOFTWARE. |
| |
| |
| Terms of the license agreement |
| |
| 1. LICENSE AGREEMENT. This license agreement governs the obtaining, use, |
| duplication, distribution, and modification of the Product and its package. Use, |
| duplication, distribution or modification of the Product and its package implies |
| the acceptation of this license agreement. |
| |
| 2. LICENSE GRANT. |
| a. Secway grants Licensee a non-exclusive and non-transferable license to |
| reproduce and use for personal purposes the executable code version of the |
| Product for the duration of the test period, provided any copy must contain all |
| of the original proprietary notices. |
| b. This license does not entitle Licensee to receive from Secway hard-copy |
| documentation, technical support, telephone assistance, or enhancements or |
| updates to the Product. |
| c. Licensee may not customize the Product unless he has received a written |
| agreement from Secway. In this case, the exact terms and extends of this |
| customization are to be found in the written agreement. |
| d. Licensee may not redistribute the Product unless for personal or |
| internal business purposes. Redistribution must be free except possibly for |
| media or bandwidth costs, and redistributed files must be the original package |
| as obtained from Secway, without any modification. Distribution of the Product |
| or its package aggregated with other programs as part of a larger (possibly |
| commercial) software distribution may be permitted by a written agreement from |
| Secway. Such distribution is also governed by terms of this license agreement |
| plus amendments possibly made by the written agreement. |
| |
| 3. RESTRICTIONS. |
| a. Except as otherwise expressly permitted in this Agreement, Licensee may |
| not: |
| i. modify or create any derivative works of the Product or documentation, |
| including translation or localization |
| ii. redistribute, encumber, sell, rent, lease, sublicense, or otherwise |
| transfer rights to the Product |
| iii. remove or alter any trademark, logo, copyright or other proprietary |
| notices, legends, symbols or labels in the Product |
| iv. publish any results of benchmark tests or evaluation or reverse |
| engineering (see below) run on the Product to a third party without Secway's |
| prior written consent, which cannot be refused without any valid reason. |
| b. Decompilation, disassembly, reverse engineering or any attempt to derive |
| the source code for the Product is allowed for personal verification purposes |
| only. |
| |
| 4. FEES. |
| a. There is no license fee for the Product. |
| b. If Licensee wishes to receive the Product on media, there may be a small |
| charge for the media and for shipping and handling. Licensee is responsible for |
| any and all taxes. |
| |
| 5. TERMINATION. |
| a. Without prejudice to any other rights, Licensor may terminate this |
| Agreement 1) at the end of the test period, as fixed by Licensor and posted to |
| its Web site on the Internet or 2) if Licensee breaches any of its terms and |
| conditions. Upon termination, Licensee shall destroy all copies of the Product. |
| |
| 6. PROPRIETARY RIGHTS. |
| a. Title, ownership rights, and intellectual property rights in the Product |
| shall remain in Secway and/or its suppliers. |
| b. Licensee acknowledges such ownership and intellectual property rights |
| and will not take any action to jeopardize, limit or interfere in any manner |
| with Secway's or its suppliers' ownership of or rights with respect to the |
| Product. |
| c. The Product is protected by copyright and other intellectual property |
| laws and by international treaties. |
| d. Title and related rights in the content accessed through the Product is |
| the property of the applicable content owner and is protected by applicable law. |
| The license granted under this Agreement gives Licensee no rights to such |
| content. |
| e. The names Secway or Simp or SimpServer may not be used to endorse or |
| promote products derived from this software without specific prior written |
| permission. |
| |
| 7. DISCLAIMER OF WARRANTY. |
| BECAUSE THE PROGRAM IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTY FOR THE |
| PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED |
| IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM "AS |
| IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT |
| NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A |
| PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE |
| PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF |
| ALL NECESSARY SERVICING, REPAIR OR CORRECTION. |
| |
| 8. LIMITATION OF LIABILITY. |
| TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR |
| ITS SUPPLIERS OR RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR |
| CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, |
| INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, |
| COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR |
| LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL |
| OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. |
| IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT |
| SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES LICENSEE PAID FOR THIS |
| LICENSE (IF ANY) AND FEES FOR SUPPORT OF THE PRODUCT RECEIVED BY SECWAY UNDER A |
| SEPARATE SUPPORT AGREEMENT (IF ANY), WITH THE EXCEPTION OF DEATH OR PERSONAL |
| INJURY CAUSED BY THE NEGLIGENCE OF LICENSOR TO THE EXTENT APPLICABLE LAW |
| PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT |
| ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO |
| THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. SECWAY IS NOT RESPONSIBLE |
| FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY |
| THAT IS ACCESSED THROUGH THE PRODUCT AND/OR ANY MATERIAL LINKED THROUGH SUCH |
| CONTENT. |
| |
| 9. ENCRYPTION. |
| The Product containing encryption algorithms that may be forbidden by certain |
| legislations or in certain parts of the World, Licensee must ensure himself that |
| he has the legal right to import and/or use the Product. When redistributing |
| copies of the Product in accordance with 1. and 2., the Licensee shall also |
| ensure that he has the legal right to redistribute such copies, especially when |
| exporting them. |
| |
| 10. HIGH RISK ACTIVITIES. |
| The Product 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 Product could |
| lead directly to death, personal injury, or severe physical or environmental |
| damage ("High Risk Activities"). Accordingly, Licensor and its suppliers |
| specifically disclaim any express or implied warranty of fitness for High Risk |
| Activities. Licensee agrees that Licensor and its suppliers will not be liable |
| for any claims or damages arising from the use of the Product in such |
| applications. |
| |
| 11. MISCELLANEOUS. |
| a. This Agreement constitutes the entire agreement between the parties |
| concerning the subject matter hereof. |
| b. This Agreement may be amended only by a writing signed by both parties. |
| c. Except to the extent applicable law, if any, provides otherwise, this |
| Agreement shall be governed by the laws of France. |
| d. If any provision in this Agreement should be held illegal or |
| unenforceable by a court having jurisdiction, such provision shall be modified |
| to the extent necessary to render it enforceable without losing its intent, or |
| severed from this Agreement if no such modification is possible, and other |
| provisions of this Agreement shall remain in full force and effect. |
| e. The controlling language of this Agreement is French. If Licensee has |
| received a translation into another language, it has been provided for |
| Licensee's convenience only. |
| f. A waiver by either party of any term or condition of this Agreement or |
| any breach thereof, in any one instance, shall not waive such term or condition |
| or any subsequent breach thereof. |
| g. The provisions of this Agreement which require or contemplate |
| performance after the expiration or termination of this Agreement shall be |
| enforceable notwithstanding said expiration or termination. |
| h. Licensee may not assign or otherwise transfer by operation of law or |
| otherwise this Agreement or any rights or obligations herein except in the case |
| of a merger or the sale of all or substantially all of Licensee's assets to |
| another entity. |
| i. This Agreement shall be binding upon and shall inure to the benefit of |
| the parties, their successors and permitted assigns. |
| j. Neither party shall be in default or be liable for any delay, failure in |
| performance (excepting the obligation to pay) or interruption of service |
| resulting directly or indirectly from any cause beyond its reasonable control. |
| k. The relationship between Licensor and Licensee is that of independent |
| contractors and neither Licensee nor its agents shall have any authority to bind |
| Licensor in any way. |
| l. If any dispute arises under this Agreement, the prevailing party shall |
| be reimbursed by the other party for any and all legal fees and costs associated |
| therewith. |
| m. The headings to the sections of this Agreement are used for convenience |
| only and shall have no substantive meaning. |
| n. Licensor may use Licensee's name in any customer reference list or in |
| any press release issued by Licensor regarding the licensing of the Product |
| and/or provide Licensee's name and the names of the Product licensed by Licensee |
| to third parties. |
| |
| |
| |
| [end.] |