Rational ClearCase SCM Adapter Product License Agreement

(Rev. 04 Mar 2003)

 

 

IMPORTANT!  READ THIS LICENSE AGREEMENT (HEREAFTER “AGREEMENT”) BEFORE BREAKING THE SEAL ON THE PROGRAM MEDIA PACKAGE, CLICKING ON THE “ACCEPT” BUTTON, ENTERING “YES” IN RESPONSE TO THE ELECTRONIC LICENSE ACCEPTANCE INQUIRY, INSTALLING, OR ELECTRONICALLY DOWNLOADING.  ANY OF THE ABOVE ACTIONS INDICATE ACCEPTANCE OF, AND LEGALLY BINDS YOU, YOUR COMPANY, AND ITS EMPLOYEES (“LICENSEE”), AND RATIONAL SOFTWARE CORPORATION, INCLUDING ITS SUBSIDIARIES (“RATIONAL”), TO THE TERMS AND CONDITIONS SET FORTH BELOW.  IF LICENSEE DESIRES TO NEGOTIATE NEW OR DIFFERENT TERMS, CONTACT RATIONAL'S CONTRACTS DEPARTMENT AT+1-408-863-9900 BEFORE TAKING ANY OF THE ABOVE ACTIONS. 

 

1.0        GENERAL GRANT OF LICENSE.  Subject to the terms and conditions of this Agreement, Rational hereby grants to Licensee a nonexclusive license to use, solely for Licensee’s internal business purposes, the enclosed software program(s) (including any link-time and run-time modules), any hardware key that may be furnished, user documentation, and/or development process documentation (including, but not limited to documentation on computer readable media), except to the extent excluded from this grant by Section 11 (“Excluded Code”)  of this Agreement, or separately licensed to Licensee by Rational or a third party (collectively "Product") within the Site (defined below).  Licensee may also use any enclosed documentation solely to support such use of the Product.  A Site (“Site”) shall be defined as one of the following regions, or other mutually negotiated geographic designation and shall be subject to Export Control restrictions as defined in Section 8 of this Agreement.

 

1.1        REGIONS.

 

Region 1: North and South America.

 

Region 2: Europe, Middle East and Africa.

                        (Includes the 15 countries of the European Community, Switzerland, Norway, Jersey, Guernsey, Isle of Man, Iceland, Monaco, Andorra, Liechtenstein, San Marino, Malta, Cyprus, Albania, all the countries of the former Yugoslavia, Israel, Turkey, all the countries of the Arab Middle East, Iran, the 6 countries of the former Eastern Europe region (Bulgaria, Romania, Poland, Czech Republic, Slovakia, Hungary), all the countries of the former Soviet Union, all the countries of Africa, Madagascar, and the Islands of the South Indian Ocean.)

 

Region 3: North East Asia.

                        (Includes South Korea, Japan, China, Taiwan, Hong Kong, and Macau.)

 

Region 4: South and South East Asia and Australia/Pacific.

                        (Includes India, Maldives, Pakistan, Myanmar, Nepal, Bhutan, Bangladesh, Thailand, Laos, Cambodia, Vietnam, Singapore, Malaysia, Indonesia, East Timor, the Philippines, Brunei, Papua New Guinea, the Pacific Ocean Islands, Australia, and New Zealand.)

 

1.2        ACCESS AND USE.  Only Licensee may access or use the Product.  Product may only be accessed and used on Licensee’s equipment at Licensee’s facilities within the Site.  Licensee may not rent, lease or use the Product in a service bureau or application service provider capacity, unless Licensee has paid appropriate fees to Rational.

 

Notwithstanding any contrary terms of this Agreement, Licensee’s third-party contractors or consultants (“Contractor”) shall be permitted to use the Product: (a) solely for the benefit of Licensee; (b) only according to the terms of this Agreement (including the requirement that Product remains installed only on Licensee’s equipment at Licensee’s facility); and (c) with technical support to Contractor to be coordinated through Licensee.  Licensee shall at all times be responsible for Contractor’s compliance with the terms of this Agreement.

 

To the extent that third party software programs are bundled with Product, they may not be unbundled from, or used independently of, the Product.  Some Products may contain third party software for which Rational may be required to publish specific copyright notices, trademarks/tradename notices, legends information, or other licensing requirements.  Licensee should refer to Product release notes and/or other Product documentation for such notices or information, which are incorporated by reference herein.

 

Licensee shall inform all users of the Product of the terms and conditions of this Agreement.  Title to and full ownership of all copies of the Product remain with Rational and/or Rational's licensors and are protected by United States copyright laws, patent laws, international treaties, and all other applicable laws.  All rights not explicitly granted to Licensee herein are reserved to Rational. 

 

2.0    COPIES.  The Product (or any derivative work, if applicable) may be copied only as reasonably required for back-up or archival purposes.  Licensee may copy Product documentation as reasonably required to support internal use of the Product.  In all instances of authorized copying, Licensee shall reproduce in each copy all copyright, patent, proprietary rights and confidentiality notices and restricted rights legends.

 

3.0    TERM AND TERMINATION OF PRODUCT LICENSE.  The Product license shall be valid from the date the Product is installed by Licensee and is perpetual unless terminated by: (a) mutual consent; (b) Licensee’s election; or (c) Rational upon Licensee's failure to cure a material breach of this Agreement within thirty (30) days of receipt of written notice of breach, or immediately upon written notice if the breach by its nature is incurable.  In the event of any termination of this Agreement, Licensee shall immediately return to Rational all copies of the Product and other Rational provided materials and certify to Rational that any and all copies of the Product have been destroyed.

 

4.0     UPDATES.  This Agreement does not grant Licensee rights to any improvements, modifications, enhancements, updates to the Product, or other support services.  Use of improvements, modifications, enhancements or updates to the Product shall be governed by the terms and conditions of this Agreement.

 

5.0    DISCLAIMER OF WARRANTIES. THE PRODUCT IS PROVIDED ‘AS IS’. RATIONAL AND ITS THIRD PARTY LICENSORS DISCLAIM ALL WARRANTIES EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING OUT OF THE COURSE OF DEALING, USAGE OR TRADE PRACTICE, CONTENT OF THE PRODUCT AND ANY WARRANTY AGAINST INTERFERENCE WITH LICENSEE’S QUIET ENJOYMENT OF THE PRODUCT. RATIONAL MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING THE ACCURACY OR COMPLETENESS OF THE INFORMATION PROVIDED BY THE PRODUCT OR THAT THE PRODUCT WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE PRODUCT WILL BE ERROR FREE.   Rational does not warrant that the functions contained in the Product will meet LICENSEE’S requirements or that the Product will be error-free.  EXCEPT TO THE EXTENT PROHIBITED or limited by law from jurisdiction to jurisdiction, RATIONAL EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE MEDIA AND PRODUCT, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, AND ANY WARRANTY AGAINST INTERFERENCE WITH LICENSEE'S QUIET ENJOYMENT OF THE PRODUCT.  TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL RATIONAL OR ITS LICENSORS BE LIABLE TO LICENSEE OR A THIRD PARTY FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES INCLUDING LOST PROFITS, LOST DATA AND THE LIKE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF RATIONAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS OF PARAGRAPH 8.0, IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF RATIONAL OR ITS LICENSORS TO LICENSEE OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS RELATED TO, ARISING FROM, OR BASED UPON this AGREEMENT EXCEED THE LICENSE FEE PAID BY LICENSEE FOR USE OF THE PRODUCT.  RATIONAL DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, RELATED TO ANY SOFTWARE PROGrAMS WHICH ARE SHIPPED WITH THE PRODUCT, BUT ARE EXCLUDED FROM THE GRANT OF LICENSE per the terms of SECTION 1.0 OF THIS AGREEMENT.

 

6.0     INDEMNIFICATION.  Licensee agrees to indemnify and hold harmless Rational and its suppliers for (1) any inaccuracy, error, or omission of (a) the Product, or (b) the transmission or delivery of information by the Product; (2) any loss or damage arising from or occasioned by (a) any such inaccuracy, error, or omission, or (b) non-performance. THIS SECTION 6.0 STATES RATIONAL'S AND ITS LICENSORS’ ENTIRE LIABILITY FOR COPYRIGHT, TRADE SECRET, PATENT OR OTHER INTELLECTUAL PROPERTY RIGHT INFRINGEMENT BY THE PRODUCT FURNISHED HEREUNDER.

 

7.0     LICENSEE RESPONSIBILITIES.  Licensee agrees not to reproduce, deactivate or bypass the security devices, including any hardware key, supplied with the Product.  Licensee agrees to comply with all Rational standard Product licensing procedures, and not to utilize programs, scripts or any other automatic devices to access or use the Product in a manner inconsistent with the terms of this Agreement.  Licensee agrees to preserve and respect all copyright, patent, proprietary rights and confidentiality notices and restricted rights legends included in the Product. Licensee agrees not to disassemble or reverse-compile the Product or any portion thereof and to not permit others to do so, except as permitted by applicable law, but then only to the extent that: (a) Rational is not legally entitled to exclude or limit such rights by contract and; (b) Licensee notifies Rational of Licensee's requirements with respect to interoperability or functional compatibility before engaging in reverse engineering and give Rational the opportunity to provide to Licensee the information necessary to achieve such interoperability or compatibility without reverse engineering.  Licensee hereby acknowledges that Licensee is aware of the fact that the Product contains professional and confidential know-how and, therefore, agrees not to disclose, transfer, or otherwise provide to any third party any portion of the Product except as provided in this Agreement or with the express written permission of Rational.  Licensee shall be responsible for all taxes including, but not limited to, sales, use, withholding, value-added, goods and services and excise taxes assessed or levied by any jurisdiction arising out of the performance of this Agreement, except for taxes based on the net income of Rational.

 

8.0    EXPORT CONTROLS.  The Product is subject to all applicable export laws in accordance with the U.S. Export Administration Regulations and Licensee hereby agrees that neither the technical data nor the direct product thereof is intended to be shipped, either directly or indirectly to any embargoed countries nor used for or in support of any prohibited activities.

 

9.0     GENERAL.  This Agreement represents the complete and exclusive statement of the agreements concerning the license between the parties, supersedes all prior agreements and understandings and may be modified only in writing signed by Licensee and Rational.  Installing the Product is expressly made conditional on Licensee’s assent to fully comply with all applicable laws and regulations, the terms and conditions set forth herein, and any additional or inconsistent terms or conditions contained in writing pertaining to this license are hereby rejected.  In the event of an irreparable or incurable breach of this Agreement including, but not limited to, unauthorized access to or use of the Product, Licensee agrees that Rational shall be entitled to seek injunctive relief, without posting a bond or proving damages.  If any provision of this Agreement is held to be unenforceable or illegal under certain circumstances for any reason, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions hereof and such provisions shall be reformed only to the extent necessary to make them enforceable under such circumstances.  This Agreement shall be governed by California law, in any appropriate jurisdiction.

 

10.0   U.S. GOVERNMENT RIGHTS.  All Product provided to the U.S. Government pursuant to this Agreement is provided and licensed as commercial software, subject to the terms herein.  All Product provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 is provided with "Restricted Rights" as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or DFARS, 48 CFR 252.227-7013 (OCT 1988), as applicable.

 

11.0      EXCLUDED CODE.

 

11.1      Notwithstanding the terms and conditions of any other agreement Licensee may have with Rational or any of its related or affiliated companies (collectively "Rational”), the following terms and conditions apply to all "Excluded Code" identified in this License Information document: (a) all Excluded Code are provided on an "AS IS" basis; (b) RATIONAL DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF NON-INFRINGEMENT OR INTERFERENCE AND THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (c) Rational will not be liable to Licensee or indemnify Licensee for any claims related to the Excluded Code; and (d) Rational will not be liable for any direct, indirect, incidental, special exemplary, punitive or consequential damages with respect to the Excluded Components.

 

11.2   The Product is provided with software applications and portions of applications, including, without limitation, interfaces, functions, and class definitions, which are Excluded Code.

 

11.3   The Product and future updates to the Product may contain, certain software applications and portions of applications which are provided to Licensee under terms and conditions which are different from this Agreement, or which require Rational to provide Licensee with certain notices and/or information. For such Excluded Code, either Rational will identify such Excluded Code in a "README" file (or in an updated "README" file accompanying the update), or in a file or files referenced in such "README" files (and shall include any associated license agreement, notices and other related information therein), or the Excluded Code will contain or be accompanied by its own license agreement (for example, provided when installing or starting such component, or accompanying such component in a file entitled "README",  "COPYING", "LICENSE" or a substantially similar title, or included among the Program's paper documentation, if any). Licensee use of the Excluded Code, which contains or is accompanied by its own license agreement, or for which Rational has identified a license agreement in one of the above "README" files (or in a file or files referenced therein), will be subject to the terms and conditions of such other license             agreement, and not this Agreement.  By using or not uninstalling such Excluded Code after the initial installation of the Excluded Code (thereby giving Licensee access to the applicable license agreements, notices and information), Licensee acknowledges and agrees to all such license agreements, notices and information, including those provided only in the English language. Licensee agrees to review any updated "README" files, which accompany updates to the Product.