Micro Focus End User License Agreement
IMPORTANT: MICRO FOCUS IS PROVIDING THIS SOFTWARE FOR YOUR USE
SUBJECT TO YOUR AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH
BELOW. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT BY CLICKING ON
SETUP'S ACCEPT BUTTON, YOU WILL NOT BE ABLE TO USE THE SOFTWARE. BY CLICKING
SETUP’S ACCEPT BUTTON YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT,
UNDERSTOOD IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
WHEREAS, Micro Focus desires to grant to Licensee, and Licensee desires to
accept from Micro Focus, a license to use Micro Focus Software (as defined
herein) upon the terms and conditions hereinafter set forth; NOW, THEREFORE,
Micro Focus and Licensee agree as follows:
For this Micro Focus End User License Agreement (“License Agreement”) the
following terms shall have the meanings given below:
“Micro Focus Software” means the object code version of the Micro
Focus computer programs, their accompanying user documentation
(“Documentation”) and other supplemental materials as provided to Licensee by
Micro Focus, including but not limited to any software security keys,
modifications or additions relating thereto. For purposes of this License
Agreement, “Micro Focus Software” shall also include any new releases, updates,
revisions, modifications, additions, corrections and fixes of the Micro Focus
Software that Licensee receives under Section 6 below or under maintenance for
which Licensee has separately contracted and paid. This License Agreement does
not grant Licensee the right to any new releases, updates, revisions,
modifications, additions, corrections and fixes of the Micro Focus Software
unless provided by Micro Focus under Section 6 below.
“Product Order” means a document that has been (i) executed by
Licensee, describing each Micro Focus Software purchased and (ii) accepted by
Micro Focus or its authorized distributors. Micro Focus will accept the Product
Order by either confirming Micro Focus’s acceptance in writing or by delivering
the Software to Licensee, whichever occurs first. Each Product Order shall
constitute a separate agreement and shall incorporate therein all of the terms
and conditions of this License Agreement. In the event of any conflict between
the terms of this License Agreement and the terms of any Product Order which
have been expressly accepted by a duly authorized signatory of Micro Focus in
writing, such terms of the Product Order shall govern. In no event shall any
terms and conditions of Licensee contained in a purchase order or similar
document issued by Licensee in connection with this License Agreement or a
Product Order apply and any such document issued shall be for the
administrative purposes of only identifying the Micro Focus Software ordered,
the number of licenses, and the price to be paid and shall have no other legal
effect.
- GRANT OF LICENSE. For payment of the applicable non-refundable
license fees identified on the Product Order, Micro Focus grants Licensee, as
an end user, a perpetual, non-transferable, non-sublicensable and non exclusive
license to use the Micro Focus Software subject to the terms and conditions set
forth in this License Agreement. Licensee shall have the right to use the
Micro Focus Software solely for its own internal use and benefit. Different
license options are available from Micro Focus, although not all license
options are available for each specific Micro Focus Software product. The
applicable license option for the Micro Focus Software shall be identified in
the Product Order:
- Development Product License Options:
- Named User License. Micro Focus Software provided under
this option gives Licensee the right to install the Micro Focus Software on
either (i) a single machine which may be accessed by the named end users for
those licenses or (ii) on a single host machine or server (“Host Server”) which
may be accessed by any of the named end users licensed. A Named User License
means that only one named person can use each license and that named person has
the right to unlimited access to the Micro Focus Software. A Named User License
is not based on concurrent users, but instead on an actual named user basis.
Micro Focus reserves the right at any time to require Licensee to provide a
list of the named end users. Licensee may change a named end user provided that
the change is made either permanently away from the named end user or
temporarily to accommodate the use of the Micro Focus Software by a temporary
worker while the named end user is absent.
- Lines of Code License. Micro Focus Software provided
under the Lines of Code license option requires, as a condition of use, that
Licensee use a usage counter containing a credit for the number of lines of
code that Licensee has purchased (“Usage Counter”). Licensee shall have sole
responsibility for installing, configuring, and administering the Usage
Counter. The Usage Counter will allow Licensee to create metering control files
in order to track the number of lines of code which Licensee has purchased and
which Licensee accesses. Licensee hereby acknowledges and agrees that unless
Licensee can demonstrate to Micro Focus’s satisfaction that the Usage Counter
was faulty on delivery to Licensee, Licensee is solely responsible for any
lost, damaged, corrupted, destroyed, inaccurate or improperly used metering
control files or metering transaction files, and in any such circumstance, may
be required to pay an additional license fee on a line of code basis for lines
of code which may have been already accessed and recorded using the Usage
Counter. Each line of code which Licensee has accessed using the Micro Focus
Software and which has been properly recorded using the Usage Counter may be
re-accessed without the need to pay an additional license fee. However, if
Licensee creates an additional line of code by updating a line of code source
member which has already been accessed and metered by the Micro Focus Software,
then Licensee will need to pay an additional license fee to access such
additional line of code using the Micro Focus Software. Upon exhaustion of
prepaid license fees, however, Licensee must purchase more lines of code in
order to continue to use the Micro Focus Software on lines of code not yet
accessed by the Micro Focus Software and properly recorded using the Usage
Counter. Any prepaid license fees are non-cancellable and non-refundable.
- Deployment Product License Options:
Deployment products are licensed either on a per-user basis (the
User License) or on a per-server basis (the Server License) as defined below.
- User License for Authorized Users. Micro Focus Software
provided under this option gives Licensee the right to install the Micro Focus
Software on unlimited Host Servers for use by the total number of named
individuals for whom Licensee has paid the applicable User License fee. The
Micro Focus Software may not be used or accessed by (a) individuals who are not
named individuals; or (b) any other software or hardware device that does not
require a named individual to use or access it. A named individual means an
individual identified by Licensee by name who is authorized to use any device
or other software program that may access the Micro Focus Software, either
directly or indirectly through any other software program, regardless of how
such access occurs or if such individual uses any hardware or software that
reduces the apparent number of users who are using the Micro Focus Software,
such as by using a terminal service. Micro Focus reserves the right at any time
to require Licensee to provide a list of the named individual(s). Licensee may
change a named individual provided that the change is made either permanently
away from the named individual or temporarily to accommodate the use of the
Micro Focus Software by a temporary worker while the named individual is
absent.
- Server License. There are two options for server-based
licenses.
(i) Server License for Concurrent Users. Micro Focus
Software provided under this option gives Licensee the right to install the
Micro Focus Software on the designated Host Server specified in the Product
Order for use by the maximum number of Concurrent Users for whom Licensee has
paid the applicable Server License fee. Concurrent Users are individuals who
are actively using any device or other software program that may access the
Micro Focus Software either directly, or indirectly through any other software
program, regardless of how such access occurs or if such user uses any hardware
or software that reduces the apparent number of users who are using the Micro
Focus Software, such as by using a terminal service. The Micro Focus Software
may not be used or accessed by any other software or hardware device that does
not require an individual to use or access it. Licensee may change the
designated Host Server to an equivalent Host Server for which Licensee has paid
the applicable Server License fee. Licensee may only use the Micro Focus
Software on or access the Micro Focus Software from one Host Server at any one
time.
(ii) Server License for CPUs. Micro Focus Software
provided under this option gives Licensee the right to install the Micro Focus
Software on up to the total number of central processing units (“CPUs”) on the
designated single Host Server specified in the Product Order. The Host Server
is defined as: (x) the entire computer system that will be running the Micro
Focus Software; (y) the combined number of partitions designated by software
(such as LPAR’s) that will be running the Micro Focus Software; or (z) the
combined hardware (such as blades) that will be running the Micro Focus
Software. That software is provided for use by an unlimited number of users,
other software devices and hardware devices. Micro Focus reserves the right at
any time to require Licensee to provide a specification of the Host Server.
Licensee may change the designated Host Server provided that the total number
of CPUs in the new Host Server does not exceed the total number of CPUs
designated in the Product Order. Licensee may only use the Micro Focus Software
on or access the Micro Focus Software from one Host Server at any one time.
Licensee is required to purchase a license for each CPU that accesses or uses
the Micro Focus Software either directly, or indirectly through any other
software program, regardless of how such access occurs or if the CPU uses any
hardware or software that reduces the apparent number of CPUs that are using
the Micro Focus Software, such as by using a terminal service.
- Evaluation License Option.
Micro Focus Software provided under this option gives Licensee a
term license to use the Micro Focus Software within Licensee’s organization
during the evaluation term specified in writing by Micro Focus, solely for
evaluation and testing purposes on a single computer system and not for
development, commercial, or production purposes. Licensee may not reproduce or
distribute the Micro Focus Software. Licensee’s results of benchmark or other
performance tests run on or using the Micro Focus Software may not be disclosed
to any third party without Micro Focus’s prior written consent. At any time
during the evaluation term or upon completion thereof, Licensee may, upon
written notification to Micro Focus and payment of the applicable license fee,
replace the evaluation license with a license to use the Micro Focus Software
pursuant to one of the options listed in Sections 1.a, 1.b or 1.c. In the
absence of such notification by Licensee, the evaluation license shall
automatically terminate at the end of the evaluation term and Licensee shall
return, or, if Micro Focus so directs, delete and destroy all such Micro Focus
Software and provide Micro Focus with written confirmation of such deletion and
destruction being completed. Micro Focus may, in its sole discretion, grant
Licensee an extension to the evaluation term subject to receiving a written
request and reasons for such request from Licensee prior to expiration of the
evaluation term. Micro Focus will specify any such agreed extension in writing
to Licensee. Micro Focus Software provided by Micro Focus free of license fee
charge shall be deemed to be provided pursuant to this Evaluation License
Option unless otherwise agreed in writing. In the absence of any contrary
period specified in writing by Micro Focus, the evaluation term shall be deemed
to be thirty (30) days. In relation to Micro Focus Software provided pursuant
to this Evaluation License Option, this Section 1.d shall prevail over any
contrary provisions set forth in this License Agreement.
- Test License Option.
Micro Focus Software provided under this option gives Licensee a
limited license to use the Micro Focus Software solely for Licensee's internal
testing purposes on a single computer system. At no time may Licensee use the
Micro Focus Software for development, commercial, or production purposes, nor
may Licensee reproduce or distribute the Micro Focus Software. Licensee’s
results of benchmark or other performance tests run on or using the Micro Focus
Software may not be disclosed to any third party without Micro Focus’s prior
written consent. If Licensee uses the Test Licenses for any purpose other than
for Licensee's internal testing purposes, the Test License shall terminate
automatically and without notice. Upon such termination, Licensee may convert
the terminated Test License to a standard license type listed above by paying
the applicable conversion fee. In relation to Micro Focus Software provided
pursuant to this Test License Option, this Section 1.d shall prevail over any
contrary provisions set forth in this License Agreement.
- Disaster Recovery Licenses.
Appropriate Disaster Recovery Licenses are required for
installation of the Micro Focus Software on a Disaster Recovery System. A
Disaster Recovery System is defined as a computer system that is not in use
except: (i) when a disaster arises and the original production system is
unavailable; (ii) for the purposes of disaster recovery testing: or (iii) for
system diagnostics or maintenance of the Disaster Recovery System itself. A
Disaster Recovery System does not include any system that is in use or that is
included in the same computer cluster as the machine on which the production
copy of the Micro Focus Software is installed. Micro Focus software provided
under this option gives Licensee a license to install a copy of the Micro Focus
Software on the Disaster Recovery System and to use the Micro Focus Software in
the event that original production system is not available. Micro Focus
Software provided under this option cannot be used (x) concurrently with the
original copy of the Micro Focus Software except while the original production
system is being recovered; (y) in production or development environments except
in a disaster recovery situation: or (z) for load-balancing, fail over,
training, or testing purposes. Additional copies for use in production and
development environments, for load-balancing, fail-over, training or testing
purposes, or for installation in any computer system that is in use must be
purchased separately. Disaster Recovery licenses shall terminate automatically
at any time and without notice should the Micro Focus Software is installed on
anything other than a Disaster Recovery System, if Licensee ceases to use the
Micro Focus Software for disaster recovery purposes, or if Licensee is in
violation of subsection (x), (y) or (z) above. At such time Licensee will be
required to delete this additional copy of the Micro Focus Software.
Certain Micro Focus Software may also be subject to additional terms
and conditions as set forth in the “Specific Software Terms” located at the end
of this License Agreement. The Specific Software Terms will prevail in the
event of any conflict.
- USER RESTRICTION. Licensee agrees not to:
- Copy and distribute the Micro Focus Software, in whole or in part,
for internal use without paying Micro Focus the applicable additional fees,
except (i) for making a reasonable number of archival back-up copies; or (ii)
as expressly authorized by Micro Focus in writing; or (iii) for making a
reasonable number of copies of the Documentation supplied to Licensee by Micro
Focus in electronic form. Licensee shall reproduce and affix all copyright and
other proprietary rights notices appearing in or on the Micro Focus Software,
including the notices of all third party suppliers and all those included in
any Third Party Software, as defined below in all such copies thereof.
- Copy or distribute the Micro Focus Software, in whole or in part,
to third parties, including without limitation permitting use or access by the
public, without first entering into a separate distribution license agreement
with Micro Focus.
- Transfer, ship or use the Micro Focus Software outside the
continent in which it was originally licensed to Licensee.
- Assign, sell, rent, lease, lend, sublicense, outsource or
otherwise distribute, transfer or make available the Micro Focus Software to
any third party, nor authorize or appoint any third party to do so.
- Use the Micro Focus Software for timesharing, hosting, service
bureau or like purposes.
- Modify the Micro Focus Software, nor provide any person with the
means to do the same.
- Create derivative works, translate, disassemble, recompile nor
reverse engineer any Micro Focus Software, nor attempt to do so (except to the
extent applicable law specifically permits such activity).
- Alter, destroy, or otherwise remove any proprietary notices or
labels on or embedded within the Micro Focus Software or Documentation.
- Use the Micro Focus Software in a manner other than as
specifically permitted in this License Agreement.
- AUDITS. Licensee agrees to (i) keep records of and provide the
location, model and serial number of any and all machines on which the Micro
Focus Software is installed or from which the Micro Focus Software is accessed,
and the names of and how many users are accessing the Micro Focus Software,
(ii) implement a reasonable mechanism or process to ensure that Licensee’s use
of the Micro Focus Software does not exceed the number of licenses granted,
(iii) take all necessary steps to destroy or erase all Micro Focus Software
codes, programs and other proprietary information before disposing of any media
containing the Micro Focus Software, and (iv) promptly provide written notice
to Micro Focus if Licensee’s usage exceeds the license granted. Upon Micro
Focus’s reasonable request, but not more frequently than annually without
reasonable cause, Licensee shall furnish Micro Focus with a statement signed by
a director and/or auditor, as required by Micro Focus, verifying the above and
shall permit Micro Focus to audit the use of the Micro Focus Software at such
times as may be mutually agreed upon. In the event Licensee’s usage exceeds the
license granted, without prejudice to any other rights or remedies Micro Focus
may have, including without limitation injunctive relief, Licensee agrees to
pay Micro Focus the then current license and maintenance fees for the use of
the additional licenses.
- DOCUMENTATION. One (1) electronic copy of Micro Focus’s standard
Documentation, describing Micro Focus’s recommended use and application of the
Micro Focus Software, will be furnished free of additional charge to Licensee
by Micro Focus with the Micro Focus Software. Printed copies of any
documentation may be available for purchase from Micro Focus or its authorized
distributors.
- TERM OF LICENSE. This License Agreement and Licensee’s license
for the Micro Focus Software is perpetual subject to earlier termination as
provided in this Section 5. Micro Focus may terminate this License Agreement
and Licensee’s license to the Micro Focus Software immediately by giving
Licensee written notice of termination in the event that either (i) Licensee
breaches any term or condition of this License Agreement and Licensee has
failed to remedy such breach within ten (10) days of the date of notice from
Micro Focus to Licensee or (ii) Licensee is wound up other than voluntarily for
the purposes of amalgamation or reorganization, has a receiver appointed or
enters into liquidation or bankruptcy or analogous process or processes in
Licensee’s home country. Termination shall be without prejudice to any other
rights or remedies Micro Focus may have. Licensee may at any time terminate
this License Agreement voluntarily by giving notice of termination to Micro
Focus. In the event of any termination Licensee will have no right to keep or
use the Micro Focus Software or any copy of the Micro Focus Software for any
purpose and Licensee shall destroy and erase all copies of such Micro Focus
Software in its possession or control, and forward written certification to
Micro Focus that all such copies of Micro Focus Software have been destroyed or
erased.
- MAINTENANCE. Where Licensee purchases maintenance, Licensee’s
initial maintenance term will begin upon delivery to Licensee of the Micro
Focus Software and continue for one (1) year thereafter unless otherwise
specified in the applicable annual maintenance agreement or in the Product
Order, or earlier if the license is terminated.
- LIMITED WARRANTY. Micro Focus warrants for a period of ninety
(90) days from delivery to Licensee (“Warranty Period”) (i) that the media on
which the Micro Focus Software is supplied is free from defects in materials or
workmanship under normal use and (ii) that the copy of the Micro Focus Software
delivered to Licensee conforms in all material respects to the Documentation.
As the sole and exclusive remedy for not meeting part (i) of the above
warranty, Micro Focus’s sole obligation shall be to repair or replace free of
charge any defective media on which the Micro Focus Software is delivered if
the media is returned to Micro Focus by Licensee during the Warranty Period. As
the sole and exclusive remedy for not meeting part (ii) of the above warranty,
Micro Focus shall repair or replace the Micro Focus Software free of charge or
if Micro Focus reasonably determines that such remedy is not economically or
technically feasible, Licensee shall be entitled to a full refund of the
license fee and any maintenance fee paid by Licensee with respect to that
particular Micro Focus Software and Licensee’s license to use such Micro Focus
Software will terminate. The warranty set forth in this Section 7 shall not
apply if the defect in the Micro Focus Software is the result of: (a) the Micro
Focus Software not being used in accordance with the Documentation, this
License Agreement or with the platform(s) for which the Micro Focus Software
has been designed and licensed by Micro Focus; or (b) the Micro Focus Software
having been altered, modified or converted by Licensee or any third party
except as may be specified in the Documentation; or (c) the malfunctioning of
Licensee’s equipment; or (d) accident or abuse; or (e) service by any
unauthorized person; or (f) other software used by Licensee which has not been
provided by Micro Focus or for which the Micro Focus Software is not designed
and licensed for operation; or (g) Third Party Software, as defined below; or
(h) any other cause occurring after initial delivery of the media to Licensee
unless caused directly by Micro Focus. The foregoing states the complete and
entire remedies that Licensee has under this warranty. Micro Focus shall have
no responsibility for any warranty claims made outside of the Warranty Period.
- DISCLAIMER OF WARRANTY. The Micro Focus Software cannot be
tested in every possible operating environment, therefore Micro Focus does not
warrant that the functions contained in the Micro Focus Software will meet
Licensee’s requirements, that operation of the Micro Focus Software will be
uninterrupted, or that the Micro Focus Software is error free. EXCEPT AS SET
FORTH HEREIN AND TO THE EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES,
EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY AND FITNESS FOR A PARTICULAR
PURPOSE ARE EXCLUDED ON THE PART OF MICRO FOCUS AND ITS THIRD-PARTY SUPPLIERS.
Licensee acknowledges that Licensee is responsible for the selection of the
Micro Focus Software to achieve Licensee’s intended results and for the
installation of, use of and results obtained from the Micro Focus Software.
- LIMITATION OF LIABILITY. ANY LIABILITY OF MICRO FOCUS SHALL BE
LIMITED IN THE AGGREGATE TO THE AMOUNTS PAID BY LICENSEE FOR THE MICRO FOCUS
SOFTWARE. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, INCLUDING WITHOUT
LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT
LIABILITY, MISREPRESENTATION AND OTHER TORTS. THE LIMITATIONS OF LIABILITY
DESCRIBED IN THIS SECTION 9 ALSO APPLY TO MICRO FOCUS’S THIRD-PARTY SUPPLIERS.
MICRO FOCUS’S AND ITS THIRD-PARTY SUPPLIERS’S LIMITATIONS OF LIABILITY ARE NOT
CUMULATIVE. Licensee’s remedies in this License Agreement are Licensee’s
exclusive remedies.
NEITHER MICRO FOCUS NOR ANY OF ITS THIRD-PARTY SUPPLIERS SHALL BE
LIABLE FOR ANY INJURY, LOSS OR DAMAGE, WHETHER INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL NOR FOR ANY LOST PROFITS, CONTRACTS, LOSS OF DATA OR PROGRAMS,
NOR THE COST OF RECOVERING SUCH DATA OR PROGRAMS, EVEN IF INFORMED OF THE
POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
NEITHER THIS LICENSE AGREEMENT NOR ANYTHING IN THIS SECTION 9 SHALL
PURPORT TO EXCLUDE OR RESTRICT THE LIABILITY OF MICRO FOCUS OR ITS THIRD-PARTY
SUPPLIERS TO ANY EXTENT NOT PERMITTED BY LAW.
- HIGH-RISK USES. The Micro Focus Software is not fault tolerant,
nor designed, manufactured or intended for use in hazardous environments
requiring fail-safe performance (including, without limitation, the operation
of nuclear facilities, aircraft navigation or communication systems, air
traffic control, direct life support machines, or weapons systems) in which
failure of the Micro Focus Software could lead directly or indirectly to death,
personal injury or severe physical or environmental damage. Micro Focus and its
suppliers specifically disclaim any express or implied warranty of fitness for
a particular purpose and shall have no liability for any use of the Micro Focus
Software in any high-risk situations.
- OWNERSHIP. Micro Focus and where applicable Micro Focus’s third
party suppliers have and will retain all ownership rights to the Micro Focus
Software, together with any complete or partial copies thereof. Such ownership
rights include without limitation all patent rights, copyrights, trademarks,
trade secrets, service marks, related goodwill, and confidential and
proprietary information relating thereto. This License Agreement does not
convey any proprietary interest to Licensee with respect to the Micro Focus
Software other than the license specified herein. Where the Micro Focus
Software provided under this License Agreement contains or is derived from
portions of materials provided by a third-party supplier under license to Micro
Focus, Micro Focus has assumed responsibility for the selection of such
materials and their use in producing the Micro Focus Software and any such
third-party suppliers are intended beneficiaries of this License Agreement.
- NOTICE TO GOVERNMENT END USERS. The Micro Focus Software is
provided to United States Government with RESTRICTED RIGHTS and its supporting
documentation is provided with LIMITED RIGHTS. Use, duplication, or disclosure
by the United States Government is subject to the restrictions as set forth in
FAR52.227-14 and DFAR252.227-7013 et seq. or the successor as appropriate.
Manufacturer is Micro Focus, 9420 Key West Drive, Rockville, MD 20850.
- LICENSE FEES, PAYMENT, AND TERMS. Licensee agrees to pay the
applicable end user license fees for the Micro Focus Software within thirty
(30) days of the date of invoice or such earlier date as is specified in the
Product Order. End user license fees are non-refundable except as provided in
Section 7 above, or in the Specific Software Terms below, and shall be paid
without deduction, including without limitation, of any withholding tax. End
user license fees are exclusive of any applicable transportation charges, value
added and other applicable taxes and duties and all such amounts shall be paid
or reimbursed by Licensee. Late payments shall accrue interest at the rate of
1.5% per month compounded or, if lower, the maximum rate allowed by law.
- RELATED SERVICES. Licensee shall be responsible for obtaining
and installing all proper hardware and support software (including operating
systems) and for proper installation and implementation of and training
concerning the Micro Focus Software. In the event that Licensee retains Micro
Focus to perform any services with respect to the Micro Focus Software (for
example: installation, implementation, maintenance, consulting and/or training
services), Licensee and Micro Focus agree that such services shall be subject
to Micro Focus’s then current standard terms, conditions and rates for such
services unless otherwise agreed in writing by Micro Focus.
- THIRD PARTY SOFTWARE AND COMPONENTS. The Micro Focus Software
may contain certain named third party software programs that Licensee shall
license directly from the third party subject to such third party’s terms and
conditions (for example Adobe Acrobat or Microsoft Internet Explorer) (“Third
Party Software”). All Third Party Software is provided by the licensor of the
Third Party Software and solely under such third party’s terms and conditions
and not by Micro Focus. Therefore the obligations, duties and rights of Micro
Focus and Licensee under this License Agreement do not apply to such Third
Party Software. Additionally, Micro Focus has embedded certain run time or
other elements provided by third party suppliers to Micro Focus (“Third Party
Components”). Third Party Components are licensed to Licensee pursuant to this
License Agreement. Licensee may only access Third Party Components of the Micro
Focus Software in the course of using the Micro Focus Software. Licensee may
not make or attempt any direct access to any such Third Party Components other
than with the Micro Focus Software.
- PRIVACY. The Micro Focus Software may contain features which may
allow Licensee to collect data from, control and/or monitor computers running
the Micro Focus Software deployed by Licensee without notice to or knowledge by
users of the Micro Focus Software. Licensee is solely responsible for, and
assumes all liability with respect to, the collection of data with respect to
its users of the Micro Focus Software including, without limitation, notifying
such users and complying with all data collection, privacy and other
regulations, laws, industry standards and rights of others applicable to any
such activity. Licensee shall indemnify and hold Micro Focus harmless from and
against any damages, claims, losses, settlements, attorneys' fees, legal fees
and court costs and other expenses related to any such activities or any claims
in connection therewith.
- MISCELLANEOUS. Micro Focus shall be defined as the Micro Focus
legal entity authorized to license the Micro Focus Software in the country in
which Licensee acquires the Micro Focus Software. Micro Focus may assign this
License Agreement to any member of the Micro Focus group of companies or to a
purchaser of the intellectual property rights in the Micro Focus Software, but
otherwise neither this License Agreement nor any rights hereunder may be
assigned nor duties delegated by either party, and any attempt to do so will be
void. If Licensee acquires the Micro Focus Software in North America, the laws
of the state of Maryland govern this License Agreement. If Licensee acquires
the Micro Focus Software in France, Germany or Japan, this License Agreement is
governed by the laws of the country in which Licensee acquired the Micro Focus
Software. In the rest of the world the laws of England govern this License
Agreement. The aforesaid applicable law shall apply without regard to conflicts
of laws provisions thereof, and without regard to the United Nations Convention
on the International Sale of Goods. This License Agreement shall be subject to
the exclusive jurisdiction of the courts of the country determining the
applicable law as aforesaid. This License Agreement is in addition expressly
made subject to any United States, United Kingdom or European Union laws,
regulations and other restrictions regarding export or re-export of computer
software and technology. Licensee agrees not to export or re-export any Micro
Focus Software or derivative thereof in contradiction to any such applicable
restriction. Except for the Product Order, this License Agreement is the
complete and exclusive statement of agreement between the parties relating to
the license for the Micro Focus Software and supersedes all proposals,
communications, purchase orders, and prior agreements, verbal or written,
between the parties. No employee, agent, or representative of Micro Focus has
the authority to bind Micro Focus to any oral representation or warranty
concerning the Micro Focus Software. No representation or statement not
expressly contained in this License Agreement nor any supplement, modification,
or amendment of this License Agreement will be binding on either party unless
executed in writing by a duly authorized representative of each party to this
License Agreement.
SPECIFIC SOFTWARE TERMS
The following terms and conditions apply to the applicable Micro
Focus Software products named below and supersede any conflicting terms and
conditions set forth elsewhere in this License Agreement:
MICRO FOCUS SERVER, APPLICATION SERVER FOR OBJECT COBOL DEVELOPER
SUITE, APPLICATION SERVER FOR NET EXPRESS, APPLICATION SERVER FOR SERVER
EXPRESS, AND ENTERPRISE SERVER. Where Micro Focus Server, Application
Server, or Enterprise Server (including all Enterprise Server Options) is the
Micro Focus Software, notwithstanding the provisions of Section 1 of the
License Agreement, Licensee may use the Micro Focus Software either (i) for
internal development purposes or (ii) to reproduce and distribute internally
the Application Server or Enterprise Server files in conjunction with and as a
part of Licensee’s own application software product created using the Micro
Focus Software (“Licensee Application Software”). The foregoing is contingent
upon Licensee (a) including Micro Focus’s copyright notice for the Micro Focus
Software on the product label and as a part of the sign-on message for such
Licensee Application Software product; and (b) indemnifying, holding harmless
and defending Micro Focus and its third-party suppliers from and against any
claims or lawsuits, including attorneys’ fees, legal fees and court costs that
arise out of, or result from, the use or distribution of such Licensee
Application Software. Licensee can only reproduce and distribute Licensee
Application Software to third parties after entering into a separate
distribution license with Micro Focus. Usage and distribution of the Micro
Focus Software arises both by the explicit distribution of Micro Focus Server,
Application Server, Application Server files, Enterprise Server, or Enterprise
Server files and by the implicit distribution and usage of this functionality
when linked into an application. The grant of license for the Micro Focus
Software shall not permit Licensee to either use or reproduce and distribute
any files supplied as part of the Micro Focus Software in order to create a
compiler, interpreter, or runtime support product. Micro Focus offers specific
production licensing options for distribution to third parties which vary
depending upon the license fees paid by Licensee and Licensee should contact
its Micro Focus sales representative for more details.
MAINFRAME EXPRESS ENTERPRISE EDITION.
- Where Mainframe Express Enterprise Edition (all versions and editions
including earlier versions such as Mainframe Express) is the Micro Focus
Software, Mainframe Express Enterprise Edition may only be used for development
purposes. Licensee may not use Mainframe Express Enterprise Edition for
production purposes nor utilize or access any of the Mainframe Access portions
of the Micro Focus Software from any Micro Focus Software product licensed
separately, unless the Micro Focus product, Mainframe Access, has also been
separately licensed from Micro Focus, in which case, the Mainframe Access
product included as part of Mainframe Express Enterprise Edition may be
installed on the number of host (mainframe) machines needed to support the
number of authorized end-users of Mainframe Express Enterprise Edition.
- Where Mainframe Express Enterprise Edition is the Micro Focus
Software, the Micro Focus Software will contain Component Generator or SOA
Express. In order to use the components created using Component Generator or
SOA Express, Licensee must pay a license fee. Upon payment of such license fee,
Micro Focus grants Licensee a personal, non-exclusive, non-transferable license
to use the components according to the type of license granted. Micro Focus has
and will retain all ownership rights to any application source code generated
by a template, wizard or similar functionality, (“Generated Source Code”)
supplied as part of the Component Generator or SOA Express including without
limitation all patent rights, copyrights, trademarks, trade secrets, service
marks, related goodwill, and confidential and proprietary information relating
thereto. For the avoidance of doubt, Generated Source Code does not include
Application Server Files. Licensee shall have and retain all ownership rights
to Licensee’s implementation of the Generated Source Code, provided that
nothing in this Section shall be construed as in any way granting Licensee any
right to limit or prevent: (i) Micro Focus from licensing any of its existing
or future Micro Focus Software or providing any of its existing or future
services to third parties; or (ii) Micro Focus or any other users of the
Component Generator or SOA Express from generating and using identical or
similar implementations of Generated Source Code. Micro Focus grants Licensee a
perpetual, transferable, non-exclusive, royalty-free right to reproduce and
distribute the Generated Source Code in object code form together with any
implementation Licensee make thereto as a part of Licensee’s application of the
Micro Focus Software product created using the Component Generator or SOA
Express and that such Licensee application of the Micro Focus Software product
adds significant and primary functionality to the Generated Source Code.
MICRO FOCUS SOA EXPRESS. Where Micro Focus SOA Express is
the Micro Focus Software, if the Micro Focus Software is being used for
deployment purposes, unless otherwise set forth in the Product Order, the
license for such software is limited to a single CICS or IMS region. Use in
multiple CICS or IMS regions requires the purchase of additional licenses for
those regions.
MICRO FOCUS STUDIO AND NET EXPRESS. Where Micro Focus
Studio or Net Express (all versions) is the Micro Focus Software:
- Redistribution of Internet Shortcut Support DLL (URL.DLL) in
Microsoft Win32 SDK. To obtain rights to distribute file "URL.DLL" supplied
as part of the Microsoft Win32 SDK that may be included with the Micro Focus
Software, Licensee must print out, sign and return the Microsoft Win32 SDK End
User Licensee Software License Agreement (located at \license\win32sdk.txt in
the Microsoft Win32 SDK) to Microsoft Corporation, Win32 SDK Program, Building
5-2, One Microsoft Way, Redmond, Washington 98052-6399. URL.DLL may be included
as part of a future version of Windows or Windows NT. Upon notification by
Microsoft of its inclusion of URL.DLL in Windows or Windows NT, Licensee shall
upgrade its application so that it no longer contains URL.DLL, and within a
reasonable period after such time, but no later than six (6) months, cease
distribution of URL.DLL.
- Use of Microsoft Visual Studio Technology and Visual Studio .NET
Premier Partner Edition, including VSIP-SDK (“VSN Software”). The VSN
Software is provided by and governed under the VSN Software End User License
Agreement (“VSN EULA”) enclosed with the Micro Focus Software. Licensee must
agree to be bound by the VSN EULA before use of the VSN Software. If Licensee
does not agree to be bound by the VSN EULA then Licensee may return the Micro
Focus Software to Micro Focus within ten (10) days of purchase, and may receive
a full refund of the license fee received by Micro Focus from Licensee for such
Micro Focus Software and Licensee’s right to use the Micro Focus Software shall
end. Licensee shall not use or enable others to use the information/content of
the VSIP-SDK to enable any development environment other than Visual Studio
.NET to host packages that use the interfaces documented in the VSIP-SDK or use
or enable others to develop or distribute extensions to or wrappers for the VSN
Software, or the interfaces between the Micro Focus Software and the VSN
Software.
NET EXPRESS ACADEMIC EDITION. Where Net Express Academic
Edition is the Micro Focus Software, in addition to the above terms and
conditions:
- Licensee shall not use the Micro Focus Software for any purpose other
than for education, training or academic research activities.
- Licensee shall not copy the Micro Focus Software, nor shall Licensee
distribute, transfer or assign the Micro Focus Software without specific
permission from Micro Focus.
- License management: If Licensee is the academic institution using the
Micro Focus Software for teaching purposes, Licensee will manage all student
licenses through a license server provided by Micro Focus in accordance with
guidelines provided by Micro Focus. Licensee agrees to provide reports
describing the number of licenses Licensee has issued in each period upon Micro
Focus’s request.
NET EXPRESS PERSONAL EDITION. Where Net Express Personal
Edition is the Micro Focus Software, in addition to the above terms and
conditions:
- Licensee shall not use the Micro Focus Software for any purpose other
than for personal educational and non-commercial activities. The Micro Focus
Software may not be used for training or teaching purposes.
- Licensee may not use the Micro Focus Software to compile source code
for applications of more than two thousand, two hundred (2200) lines of
procedural code (exclusive of lines containing comments and/or blanks) in any
one (1) application or to deploy such application to any other machine.
- Licensee shall not copy the Micro Focus Software, nor shall Licensee
distribute, transfer or assign the Micro Focus Software without specific
permission from Micro Focus.
MICRO FOCUS STUDIO, NET EXPRESS AND SERVER EXPRESS. Where
either: Micro Focus Studio, Net Express, or Server Express (all versions) is
the Micro Focus Software, the Micro Focus Software may include or generate
limited licenses for Micro Focus Server, Application Server and/or Enterprise
Server. If such licenses are included or generated, these limited licenses are
provided solely for use by the Named User of the Micro Focus Software in order
to unit test an application developed with Micro Focus Studio, Net Express or
Server Express on the server used to develop the application and may not be
used for system testing, production or deployment. Any use of this limited
license outside of the development and unit testing of such applications is
outside the scope of the license.
MICRO FOCUS STUDIO, REVOLVE ENTERPRISE EDITION, MAINFRAME EXPRESS,
NET EXPRESS AND MICRO FOCUS LICENSE SERVER. Where Micro Focus Studio,
Revolve Enterprise Edition, Mainframe Express and/or Net Express are the Micro
Focus Software, Licensee may use the Micro Focus License Server that
accompanies the Micro Focus Software to generate request or access codes for
Licensee’s use of the Micro Focus Software. Licensee may not use the Micro
Focus License Server to generate multiple-user request of access codes for the
Micro Focus Software unless Licensee has paid the appropriate license fees for
each authorized user accessing the Micro Focus Software.
MICRO FOCUS STUDIO. Where Micro Focus Studio is the Micro
Focus Software, Licensee may utilize the Micro Focus Software on both the
Windows platform and one UNIX platform, which will be designated on the Product
Order. Use of the Micro Focus Software on a different UNIX platform than
originally licensed or on more than one UNIX platform will require additional
licenses and the payment of applicable license fees. Notwithstanding the
provisions of Section 1.a (i), Licensee may install the Micro Focus Software on
more than one machine or Host Server, so long as the Micro Focus Software is
only used by the same named user on each machine or Host Server.
MICRO FOCUS REVOLVE ENTERPRISE EDITION. Where Micro Focus
Revolve Enterprise Edition is the Micro Focus Software, Licensee may only
utilize the Micro Focus Software for its own internal benefit and may not use
the Micro Focus Software to process third-party code or to generate reports to
be delivered to a third-party for that third party’s benefit without first
entering into a separate agreement with Micro Focus.
MICRO FOCUS DATA. Where Micro Focus Data is the Micro
Focus Software, Licensee may only use those additional modules that are listed
in the Product Order and for which Licensee has paid a separate license fee.
These additional modules cannot be licensed without first licensing Micro Focus
Data.
MICRO FOCUS ENTERPRISE VIEW. Where Micro Focus Enterprise
View is the Micro Focus Software, Licensee may only use those additional
modules that are listed in the Product Order and for which Licensee has paid a
separate license fee. Where a Micro Focus Enterprise View module has
language-specific capability, any licensed languages shall be listed in the
Product Order. Support for additional languages is subject to an additional
license fee.
MICRO FOCUS ENTERPRISE VIEW - RAPID ASSESSMENT OPTION.
Notwithstanding the terms of Sections 1 and 5, Micro Focus Enterprise View –
Rapid Assessment Option is provided to Licensee on a fixed term license basis
only. The start and ending dates of the term will be set forth in the Product
Order. Unless otherwise stated in the Product Order, Micro Focus Enterprise
View – Rapid Assessment Option is licensed on a “Lines of Code” basis.
License Agreement G5.01 1 June 2007
LIC-GEN-MF011