VorteXML 3.0

EULA - End User License Agreement

VorteXML License Agreement

*** READ THIS BEFORE YOU USE THE SOFTWARE ***

THIS SOFTWARE LICENSE AGREEMENT (THE "AGREEMENT") IS A LEGAL AGREEMENT BETWEEN DATAWATCH CORPORATION ("DATAWATCH") AND THE CUSTOMER OF THE SOFTWARE. BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU REPRESENT (I) THAT YOU HAVE BEEN AUTHORIZED TO ACCEPT THESE TERMS ON BEHALF OF THE CUSTOMER (THE ENTITY ON WHOSE BEHALF YOU REPRESENT YOU ARE AUTHORIZED TO ACT, IN WHICH EVENT "YOU" AND "YOUR" SHALL REFER TO YOU AND SUCH ENTITY, AS THE CASE MAY BE), OR (II) THAT YOU INTEND TO BE PERSONALLY BOUND TO THE TERMS OF THIS AGREEMENT AS THE CUSTOMER. IF YOU ARE NOT SO AUTHORIZED OR DO NOT INTEND TO BE PERSONALLY BOUND, THEN DATAWATCH IS UNWILLING TO LICENSE THE SOFTWARE AND THE INSTALLATION OR USE OF THE SOFTWARE IS A VIOLATION OF U.S. AND INTERNATIONAL COPYRIGHT LAWS AND CONVENTIONS. YOU MAY RETURN THE UNUSED SOFTWARE TO YOUR SUPPLIER OR TO DATAWATCH WITHIN THIRTY DAYS AFTER YOU OBTAINED THE SOFTWARE FOR A FULL REFUND OF THE LICENSE FEE PAID BY YOU FOR THE SOFTWARE. IF YOU ACCEPT THESE TERMS FOR AN ENTITY ON WHOSE BEHALF YOU ARE AUTHORIZED TO ACT, YOU MAY USE THE SOFTWARE ONLY ON BEHALF OF SUCH ENTITY. IF YOU INTEND TO BE PERSONALLY BOUND, USE OF THE SOFTWARE IS LIMITED TO YOUR PERSONAL USE.

In consideration of the covenants and agreements contained herein, the parties hereto agree as follows:

1. LICENSE:

a) Paid-up License. If you are acquiring a paid-up license to the Software (as defined below), Section 1(b) below does not apply and this Section 1(a) shall govern your rights to use the Software (as defined below). Datawatch grants to you, and you accept, a perpetual, non-exclusive, non-assignable, non-transferable, limited license subject to the terms of this Agreement (i) to Use (as defined below) VorteXML in machine-readable object code form and the technical specifications, user documentation and training materials associated therewith (collectively, the "Software") and (ii) to Use any corrections, enhancements, updates and new releases pertaining to the Software which Datawatch provides to you, and which are not independently priced and licensed by Datawatch, provided that upon receipt of such corrections, enhancements, updates and new releases you shall no longer be entitled to Use the previous version of the Software. Such corrections, enhancements, updates and new releases shall be deemed "Software" hereunder and shall be governed by all the same terms and conditions of this Agreement as are applicable to the Software. This license is for Use by a single user (the "Authorized User") which, if you are an individual, is you, and if you are a corporation or other organization, is a specific, designated individual employed by such entity. For purposes of this license, "Use" means the processing of data for your own computing needs. All right, title and interest in and to the Software shall remain with Datawatch and/or its suppliers. All rights not specifically granted shall be reserved to Datawatch.

b) Evaluation License. If you are acquiring an evaluation license to the Software, you have no rights under Section 1(a) above and this Section 1(b) shall govern your right to use the Software; provided, however, that defined terms used in this Section 1(b) shall have the meaning accorded to such terms in Section 1(a). Datawatch grants to you, and you accept, a non-exclusive, non-assignable, non-transferable, limited license subject to the terms of this Agreement (i) to Use the Software and (ii) to Use any corrections, enhancements, updates and new releases pertaining to the Software which Datawatch provides to you, and which are not independently priced and licensed by Datawatch, provided that upon receipt of such corrections, enhancements, updates and new releases you shall no longer be entitled to Use the previous version of the Software. Such corrections, enhancements, updates and new releases shall be deemed "Software" hereunder and shall be governed by all the same terms and conditions of this Agreement as are applicable to the Software. This license is for Use by the Authorized User only. Your rights under this Section 1(b), and this Agreement, shall expire on the date which is thirty (30) days from the date on which you first installed the Software. All right, title and interest in and to the Software shall remain with Datawatch and/or its suppliers. All rights not specifically granted shall be reserved to Datawatch.

c) Restrictions. You shall not:

(i) Use, print, display, publish, disclose, transmit, record, encumber by way of security interest or otherwise pledge or transfer, assign, distribute or make available the Software, except as expressly authorized herein. Any attempted transfer, assignment, encumbrance or pledge in violation of this Agreement shall be void.

(ii) Make any copies of all or any part of the Software except for (1) archival or backup copies of the Software as permitted by law or (2) copies of the Software to be used on another stand-alone computer, provided that the Software is used only by the Authorized User and is not used on more than one computer at a time.

(iii) Modify, translate, adapt, reverse engineer, decompile, disassemble, or otherwise translate the Software, incorporate the Software, in whole or in part, in any other product, or create derivative works based on the Software, except to the extent expressly permitted by applicable law and to the extent the parties shall not be permitted by that applicable law such rights are expressly excluded. Information necessary to achieve interoperability between the Software and another independently created program is available from Datawatch on request and on payment of Datawatchs applicable fee.

(iv) Use the Software to provide any facility management, time sharing, service bureau, application hosting, application service provider (ASP), or other similar services. Any attempted facility management, time sharing, service bureau, application hosting or providing of any similar service in violation of this Agreement shall be void.

(v) Rent, lease, sell, license or sublicense the Software to a third party or operate the software for the benefit of a third party. Any attempted rental, lease, sale, license or sublicense in violation of this Agreement shall be void.

(vi) Remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the Software or any copy of the Software.

(vii) Permit others (including the Authorized User) to do any of the foregoing.

d) No Concurrent Use or Multiple Users. You may either (i) install the Software on a single, stand-alone computer or (ii) install the Software on a network server or store the Software on a storage device; provided that (1) such network server or storage device, as applicable, is located at your premise and communicates only with your computers over your internal network and (2) you purchase and dedicate a separate license for each separate computer on which the Software is run from the network server or storage device, as applicable and for each individual user that uses the Software. The Software may not be used concurrently on multiple computers or shared by multiple users. Use of software or hardware that reduces the number of users using the Software (sometimes called "multiplexing" or "pooling" software or hardware) does not reduce the number of Software licenses required. The required number of Software licenses would equal the greater of the number of actual users or the number of distinct inputs to the multiplexing or pooling software or hardware.

e) Risk of Loss. You assume all risk of loss, damage or destruction of the Software after receipt of the Software. If you are licensing the Software pursuant to Section 1(a), the license for the Software shall pass to you upon payment to Datawatch of the entire license fee and any loss, damage or destruction to the Software shall not relieve you of your obligation to make any payments to Datawatch. If you are licensing the Software pursuant to Section 1(b), the license for the Software shall pass to you upon your receipt of the Software.

2. OWNERSHIP: You acknowledge and agree that Datawatch (and its suppliers) maintains exclusive ownership of all right, title and interest in and to the Software, in all forms and all copies thereof including, without limitation, any and all worldwide copyrights, patents, trade secrets, trademarks, and proprietary and confidential information rights associated with the Software. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. This is a license, not a sale of the Software or any copy of it, nor is it a waiver of any intellectual property rights of Datawatch. You acknowledge and agree that nothing in this Agreement gives you any right, title or interest in or to the Software except for the limited express rights granted pursuant to Section 1 of this Agreement.

3. TRANSFER OF LICENSE: You may transfer the license to the Software on a permanent basis provided you retain no copies (including all prior versions) and the recipient agrees to be bound by the terms of this Agreement. Should you desire to transfer this license, Datawatch must be promptly informed of the transfer in writing. Further, if you wish to designate a permanent replacement for the Authorized User, you may do so provided you promptly inform Datawatch of the change in writing.

4. NO DISTRIBUTION OF LICENSE KEY CODES: You may not reproduce or distribute license key-codes except with the express, written permission of Datawatch.

5. CONFIDENTIALITY: You acknowledge and agree that the Software is confidential information of Datawatch and that it constitutes valuable proprietary information and trade secrets of Datawatch. Accordingly, You agree to use the Software only in accordance with the terms and conditions of this Agreement and to implement procedures to prevent other persons from obtaining access to or use of the Software without your knowledge and Datawatchs prior express written permission. Furthermore, with respect to the Software, you acknowledge the uniqueness of the Software and agree that a breach of this Agreement by you would cause Datawatch irreparable harm for which money damages would be inadequate, and that Datawatch shall therefore be entitled to obtain timely injunctive relief to protect Datawatchs rights under this Agreement in addition to any and all remedies available at law.

6. SELECTION AND USE: You assume full responsibility for the selection of the Software to achieve intended results and for the installation, use, and results obtained from the Software, including but not limited to providing a suitable system for installation, providing the appropriate environment for operating the Software and loading your data.

7. TERMINATION: Without prejudice to any other rights, Datawatch may terminate this Agreement if you fail to comply with the terms and conditions of this Agreement. In such event, and upon expiration of this Agreement pursuant to Section 1(b), you must destroy all copies of the Software and all of its component parts and delete or otherwise remove the Software from any computer hardware on which it was installed.

8. LIMITED WARRANTY:
a) Datawatch warrants solely that, for a period of thirty (30) days from the date of your receipt of the Software, (i) the Software will substantially conform to published specifications and to the documentation provided with it when used as specified in such documentation; and (ii) the media on which the Software is distributed are free from defects in materials and in workmanship. This warranty does not apply if: (1) the Software has been altered or modified, (2) the Software has not been installed, operated , repaired or maintained in accordance with the documentation which accompanied the Software, (3) the Software has been subjected to abnormal physical or electrical stress, misuse, negligence or accident, (4) the version of the Software used does not include all updates and upgrades available from Datawatch, or (5) the defect or error was caused by third party hardware or software malfunctions or failure or by acts or omissions caused by persons other than Datawatch. Provided that within the thirty (30)-day period, referred to above, you return the Software with a copy of your receipt, a copy of this Agreement and a written statement specifying in reasonable detail the nature of the claimed non-conformance or defect, as your exclusive remedy for breach of warranty, and as Datawatchs entire liability in contract, tort or otherwise, Datawatch will, at its discretion, do one of the following: (a) use reasonable commercial efforts to correct the non-conformance or defect of the Software; or (b) replace the Software ; or (c) refund the license fee. Datawatch does not warrant that the functions contained in the Software will meet your requirements or that the operation of the Software will be uninterrupted or error free. No oral or written information given by Datawatch, its agents, or employees shall create a warranty. Due to the inherent complexity of computer software, you are advised to verify your work. The limited warranty provided in this Section 8(a) gives you specific legal rights and you may also have other rights which vary from jurisdiction to jurisdiction.

b) EXCEPT AS SET FORTH IN SECTION 8(a) ABOVE, THE SOFTWARE IS LICENSED TO YOU ON AN "AS IS" BASIS. DATAWATCH DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE (REGARDLESS OF ANY KNOWLEDGE OF LICENSEES PARTICULAR NEEDS) AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.

IF IMPLIED WARRANTIES MAY NOT BE DISCLAIMED BY APPLICABLE LAW, THEN ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO 30 DAYS AFTER DELIVERY OF THE SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE ABOVE LIMITATION MAY NOT APPLY.

c) DATAWATCHS CUMULATIVE LIABILITY IN CONTRACT, TORT OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, OR DATAWATCHS AGREEMENT WITH YOU, SHALL NOT EXCEED THE LICENSE FEE PAID BY YOU FOR THE SOFTWARE. IN NO EVENT SHALL DATAWATCH OR ITS DEVELOPERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES OR SUPPLIERS BE LIABLE FOR SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL, TORT OR CONSEQUENTIAL DAMAGES (INCLUDING ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF BUSINESS OR OTHER ECONOMIC LOSS) . THE FOREGOING LIMITATION SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH DAMAGES ARE SOUGHT AND EVEN IF DATAWATCH OR A REPRESENTATIVE OF DATAWATCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU.

You acknowledge that Datawatch has established the price of the Software based on the limitations contained in this Section 8 and you have agreed to the price paid based in part upon your agreement with and acceptance of the terms of this Section 8.

9. GOVERNING LAW AND JURISDICTION: This Agreement shall be governed, interpreted, and enforced by the laws of the Commonwealth of Massachusetts. Any legal action brought involving this Agreement, shall be brought only in the courts of the Commonwealth of Massachusetts, in the County of Middlesex, or in the federal courts located in such state (and county). Both parties to this Agreement submit to venue and jurisdiction in these courts. In the event that an action or claim arises outside of the exclusive jurisdiction specified herein which names Datawatch as a party, Datawatch and you specifically agree to initiate, consent to and/or cooperate with any and all efforts to remove the matter to the exclusive jurisdiction named herein, or otherwise take any and all reasonable actions to achieve the objectives of this provision. The parties hereby exclude the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act from this Agreement.

10. ENTIRE AGREEMENT: This Agreement constitutes the entire Agreement and understanding of the parties and supersedes all prior and contemporaneous agreements, understandings, negotiations and proposals, oral or written. This Agreement may be amended or modified only by a subsequent agreement in writing signed by each of the parties and may not be modified by course of conduct. The waiver by either party of a breach of a term or condition of this Agreement must be in writing and will not be construed as a waiver of any subsequent breach of such term or condition or the wavier of the provision itself. A partys performance after the other partys breach shall not be construed as a waiver of that breach.

11. SEVERABILITY: In the event any provision of this Agreement is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired thereby, and that provision shall be reformed, construed and enforced to the maximum extent permissible, provided that this Agreement shall not then substantially deprive either party of the bargained-for performance of the other party. Any such invalidity, illegality or unenforceability in any jurisdiction shall not invalidate or render illegal or unenforceable such provision in any other jurisdiction.

12. U.S. GOVERNMENT RESTRICTED RIGHTS: The Software is a "commercial item" as that term is defined 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. 227.7202-1, 227.7202-3 and 227.7202-4 (June 1995). If you are the U.S. Government or any agency or department thereof, the Software is licensed hereunder (i) only as a commercial item, and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.

13. EXPORT LAWS: None of the Software or underlying information or technology may be downloaded or otherwise exported or reexported (i) into (or to a national or resident of) Cuba, Iraq, Libya, Sudan, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U. S. Treasury Departments list of Specially Designated Nationals or the U.S. Commerce Departments Table of Denial Orders. By downloading or using the Software, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. In addition, you agree to comply with all relevant export laws and regulations of the United States and any local laws in your jurisdiction that may impact your right to import, export or use the Software, and represents that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable.